Mehinder Singh Sullar, J.@mdashAs identical questions of law and facts are involved, therefore, I propose to dispose of the above indicated writ
petitions, vide this common judgment, in order to avoid the repetition. However, the factual matrix, which needs a necessary mention for the limited
purpose of deciding the core controversy involved in the instant writ petitions, has been extracted from (1) titled as ""Kartar Singh v. Joint Secretary
to Government of Haryana and Ors."" in this context.
2. The epitome of the facts, culminating in the commencement, relevant for disposal of the instant writ petitions and emanating from the record, is
that Petitioners-workmen (for brevity ""the workmen"") were appointed in the year 1986 as Helpers-Tubewell-Op-erators by the Management of
DLF Universal Limited (for short ""the Management"") at a monthly minimum wages of Rs. 637/-, which were subsequently increased to Rs. 800/-
per month, as per rates of minimum wages fixed by the Government of Haryana in the year 1990. Since then, they were working with the
Management as such.
3. Sequelly, the Petitioners claimed that in the year 1989, the Management became annoyed with the workers as they had formed and got
registered union, vide registration bearing No. 1159, under the name and style ""DLF Universal Ltd. Workers'' Union"" and illegally terminated their
services on 1.11.1989, without any notice and complying with the provisions of the Industrial Disputes Act, 1947 (hereinafter to be referred as
the Act""). They visited several times, but it (Management) refused to take them back on duties. Thereafter, they sent a registered demand notice
dated 2.11.1989, but in vain. Again, they served demand notice dated 8.11.989 through the Labour-cum-Conciliation Officer (for brevity ""the
LCO""), Gurgaon, who called the Management thrice on many occasions, but none appeared on its behalf.
4. The LCO was stated to have sent his report dated 12.12.1989 (Annexure P1) u/s 12(4) of the Act to the Deputy Labour Commissioner,
Sonepat. The demand notice dated 8.11.1989 was rejected, by virtue of letter bearing No. 78 dated 25.1.1990 (Annexure P2), being pre-mature
by the Deputy Labour Commissioner, with the remarks that the Management did not terminate their services. It necessitated the workmen again to
approach the LCO for sending them on duties, by way of application (Annexure P3).
5. The case set up by the workmen, in brief in so far as relevant, was that in pursuance of his (LCO) direction, the workmen reported for duty to
the personnel officer of the Management, who refused to take them back on duty. Not only that, even he refused to take the workmen back on
duty on 26.2.1990 before the LCO.
6. The case of the workmen further proceeds that they again served demand notice dated 3.3.1990 (Annexure P4). The LCO forwarded the
dispute of the workmen, to the Secretary to Government of Labour Department (Respondent No. 1). However, the demand notice was stated to
have been rejected on the basis of earlier report (Annexure P2), by way of impugned rejection letter dated 11.9.1990 (Annexure P5).
7. The Petitioners-workmen still did not feel satisfied and instituted the instant writ petitions, challenging the impugned rejection order (Annexure
P5), invoking the provisions of Articles 226 and 227 of the Constitution of India, interalia on the ground that they successfully completed more than
three years of service, without any break, but the Management has illegally terminated their services. So much so, no opportunity of being heard
was provided to them by the authority before passing the impugned order. It was claimed that Respondent No. 1 did not have any jurisdiction to
reject the demand notice. The dispute was required to be adjudicated upon by the Labour Court u/s 10(1)(d) of the Act. The impugned order was
stated to be illegal, without jurisdiction and against the statutory provisions of the Act. On the basis of aforesaid allegations, the workmen sought
quashment of the impugned order in the manner, depicted here-in above.
8. The Respondents contested the claim of the workmen and prayed for dismissal of the writ petitions. The facts of the case are neither intricate
nor much disputed.
9. Having heard the learned Counsel for the parties, having gone through the records and relevant provisions of the Act with their valuable help and
after bestowal of thoughts over the entire matter, to my mind, the instant petitions deserve to be accepted for the reasons mentioned here-in-
below.
10. It is not a matter of dispute that the Petitioners-workmen raised an industrial dispute, inter-alia on the ground that they have worked for a
period of more than three years continuously, without any break, but their services were illegally retrenched by the Management, without any show
cause notice, inquiry or payment of compensation. Ultimately, the matter was referred to the Government, but their prayer was declined by the
Joint Secretary, by means of impugned order (Annexure P5), which in substance is as under:
On the subject stated above you are hereby informed that the Government did not consider your dispute fit for adjudication by the Court, because
it is revealed from the enquiry that you, yourself absented from duty and left your service, therefore, there is no justification for your demand notice.
11. Meaning thereby, the Joint Secretary to Government of Haryana negatived the claim of the workmen, mainly on the ground that from the
enquiry, it revealed that as the workmen themselves absented from duty and left the services, therefore, there is no justification in their demand
notice in this context.
12. Such thus being the position on record, now the sole question, that arises for determination in these petitions is, as to whether the Joint
Secretary to Government of Haryana (Respondent No. 1) has any jurisdiction to hold an inquiry and came to the conclusion that the Petitioners
themselves absented from duty and left the services or not?
13. Having regard to the rival contentions of the learned Counsel for the parties, here, to me, Respondent No. 1 did not have the jurisdiction to
adjudicate upon in industrial dispute between the parties.
14. What is not disputed here is that section 10 of the Act deals with the reference of dispute between the workman and Management, while
sections 11 and 11-A postulate the procedure and powers to give appropriate relief by conciliation officers, Boards, Labour Courts, Tribunal and
National Tribunals.
15. Sequelly, section 12(5) of the Act posits that ""if, on a consideration of the report referred to in Sub-section (4), the appropriate Government is
satisfied that there is a case for reference to a Board, [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the
appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
16. A co-joint reading of these provisions, would leave no manner of doubt, that the power of Government is only to refer and it cannot adjudicate
upon the matter. There is a clear distinction in the demarcated functions of reference by the Government and the Court''s adjudication. The power
of reference of the Government u/s 12(5) has to be read with Section 10(1) of the Act. In dealing with an industrial dispute in respect of which a
failure report has been submitted u/s 12(4), the appropriate Government ultimately exercises its power u/s 10(1) of the Act, subject to this that
Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a
failure report has been made u/s 12(4).
17. Ex facie, the argument of the learned Counsel for the Petitioners that the Government has declined the reference, based on irrelevant and
extraneous consideration, has considerable force. The appropriate Government should not purport to reach a final decision on the said questions of
law, because that would normally lie within the jurisdiction of Industrial Tribunal/Labour Court. Similarly, on disputed questions of fact, the
appropriate Government cannot purport to reach final conclusions in this regard as it would again be the province of the Industrial Tribunal.
18. As is evident from the record that the main ground, which appears to have been weighed with the Joint Secretary in declining the reference was
that the Petitioners themselves absented from the duty, left their services and there is no justification for reference. Here, to my mind, the Joint
Secretary has slipped into legal error in this relevant connection. The Respondent No. 1 has vaguely presumed the absence of the Petitioners, even
without indicating the period of their absence and without any inquiry that they willfully remained absent and without any cogent material on record,
as well. In this manner, the Joint Secretary has illegally assumed the power and jurisdiction of the Industrial Tribunal and the Labour Courts and
decided the factual matrix and law point, which was in the domain of the Industrial Tribunal. Therefore, the impugned order (An-nexure P5) cannot
legally be sustained in this relevant connection.
19. An identical question arose before the Hon''ble Apex Court in case Ram Avtar Sharma and Others Vs. State of Haryana and Another, .
Having interpreted the relevant provisions, it was ruled as under:
The view that while exercising power u/s 10(1), the Government performs administrative function can be supported by an alternative line of
reasoning. Assuming that making or refusing to make a reference u/s 10(1) is a quasi-judicial function, there is bound to be a conflict of jurisdiction
if the reference is ultimately made. A quasi-judicial function is to some extent an adjudicatory function in a lis between two contending parties. The
Government as an umpire, assuming that it is performing a quasi-judicial function when it proceeds to make a reference, would imply that the
quasi-judicial determination of lis prima facie shows that one who raised the dispute has established merits of the dispute. The inference necessarily
follows from the assumption that the function performed u/s 10(1) is a quasi-judicial function. Now by exercising power u/s 10, a reference is
made to a Tribunal for adjudication and the Tribunal comes to the conclusion that there was no merit in the dispute, prima facie a conflict of
jurisdiction may emerge. Therefore the view that while exercising power u/s 10(1) the function performed by the appropriate Government is an
administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.
Now if the Government performs an administrative act while either making or refusing to make a reference u/s 10(1), it cannot delve into the merits
of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10
requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate
Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant
reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the
exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is
liable to be questioned in exercise of the power of judicial review. In State of Bombay v. K.P. Krishnan, it was held that a writ of mandamus
would lie against the Government if the order passed by it u/s 10(1) is based or induced by reasons as given by the Government are extraneous,
irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an
administrative order. May be, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after
examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant,
extraneous or not germane to the determination and then can direct the Government to reconsider the matter. This legal position appears to be
beyond the pale of controversy.
20. Again, a Division Bench of this Court in case Lal Chand and Ors. v. State of Haryana and Ors. 1998 (III) L.L.J. (Supp.) 419 observed as
follows:
A combined reading of the above quoted provisions shows that the conciliation officer is under a duty to hold conciliation proceedings where any
industrial dispute exists or is apprehended. For this purpose, the Conciliation Officer is empowered to investigate the dispute and all matters
affecting the merits and the right settlement thereof. In case the parties arrive at a settlement, the Conciliation Officer is required to send a report
thereof to the appropriate Government together with the memorandum of settlement signed by the parties to the dispute. In cases where the
settlement is not reached between the parties, in terms of Section 12(4), the Conciliation Officer is required to send full report to the appropriate
Government specifying therein the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a
settlement thereof together with a full statement of those facts and circumstances and the reasons on account of which a settlement could not be
arrived at. For the purpose of discharging his duties, the Conciliation Officer is empowered to enter the premises occupied by any establishment to
which the dispute relates. He is also empowered to enforce attendance of any person for the purpose of examination of that person. The
Conciliation Officer may also inspect any document which may be considered relevant by him. He is also empowered to exercise powers vesting in
the Civil Court in respect of enforcing the attendance of any person and examining him. u/s 12(5) as well as u/s 10(1) the appropriate Government
is empowered to make reference of the dispute to an appropriate Board, Labour Court, Tribunal or National Tribunal. Where the appropriate
Government does not make a reference even after receipt of the report of the Conciliation Officer, it is duty-bound to record reasons and
communicate the same to the parties concerned. This shows that the Conciliation Officer is not vested with any power to reject the demand raised
by an employee. As a logical corollary it must be held that the Conciliation Officer does not have any power to enter into the merits of the dispute
and to take a decision whether any industrial dispute exists or not. The Conciliation Officer is also not entitled to decide whether or not he should
send a report to the Government. He is duty bound to send a report to the Government and it is for the Government to consider the matter and
pass appropriate order u/s 12(5). Even the power of the Government to make a reference u/s 10 and Section 12(5) has become subject-matter of
adjudication by the Supreme Court as well as the High Courts and it is the consistent view that ordinarily the Government is duty- bound to make a
reference and only in a case where no dispute exists or the dispute sought to be raised is totally frivolous, on the basis of which the Government
can decline to make a reference. In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, , the Supreme Court
has made the following observations regarding the power of the Government to make a reference:
The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not
unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power
to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not
meriting adjudication.
We are not multiplying the authorities on the subject because it is well settled that while exercising its power u/s 10(1) or Section 12(5) the
Government is not empowered to decide a dispute. The Government cannot examine the merits of a case for the purpose of recording a finding
whether the claim made by the workmen is justified or not. The only thing which the Government is required to look into is whether there exists
industrial dispute or the one is apprehended. Once the Government finds that the dispute exists or is apprehended, it is duty-bound to make a
reference.
21. Therefore, it is held that the Joint Secretary to Government of Haryana (Respondent No. 1) has illegally negatived the claim of the workmen in
tiiis relevant direction. The law laid down in the aforesaid judgments ""mutatis mutandis"" is applicable to the facts of the present case and is the
complete answer to the problem in hand. Thus, the contrary arguments of learned Counsel for contesting Respondents ""stricto sensu"" liable to be
and are hereby repelled and the impugned orders (Annexures P2 and P5) deserve to be and are hereby set aside in the obtaining circumstances of
the case.
22. No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the parties.
23. In the light of the aforesaid reasons, the instant writ petitions are accepted with costs and the impugned orders (Annexures P2 and P5) are
hereby quashed in this regard. Consequently, the Respondent-State is directed to pass a necessary order referring the dispute to the competent
Court for its adjudication within a period of two months from the date of receipt of a certified copy of this order in accordance with law.
