K.L. Sharma vs Union Of India And Anr.
1987 Latest Caselaw 486 Del

JUDGMENT

S.B. Wad, J.

(1) The short question for determination in this writ petition is whether the Government of India has legally and properly exercised its discretion under Section 10, read with Section 12(5) of the Industrial Disputes Act in refusing to make a reference of the dispute regarding the termination of the services of the petitioner to Industrial Tribunal.

(2) The petitioner was appointed on 13.12.65 as a Quality Inspector in the Food Corporation of India, which is an instrument of the government. His appointment letter provided that, "He will be on probation for a period of one year from the date of his appointment which may be extended by a further period not exceeding six months. On satisfactory completion of probation he will be considered for confirmation in that post." The Food Corporation of India has framed the regulation governing the conditions of service of its employees. Regulation 4.19 provides for the period of probation. The first three regulations are relevant for our immediate purpose. They are : (1)Every person regularly appointed to any post in the Corporation under sub-clause (a) of clause (1) of regulation 4.12 shall be required to be on probation for a period of one year from the date of appointment. (2) The appointing authority may in his discretion extend the period of probation by a further period not exceeding six months. (3) During the period of probation, an employee directly recruited shall be liable to be discharged from service without any notice and on employee promoted from a lower post to a higher post shall be liable to be reverted to the lower post without notice.

(3) On 4.11.1968 the petitioner was discharged from service. This order read:    "SHRIK.L. Sharma, Quality Inspector, Food Corporation of India, at Churu under District Manager, Sriganganagar is hereby discharged from service from Food Corporation of India, Rajasthan Region with immediate effect in terms of Para 4.19(3) of Office Manual Volume 1."  

(4) In the conciliation proceedings before the Conciliation Officer the workman had clearly asserted that he had been discharged after the period of probation and he should be reinstated with full back wages. The management took the stand that although the period of probation was over, there was no confirmation of the workman and, therefore, it should be assumed that the probation period continued. They alio submitted that a charge- sheet was issued to the workman but he did not cooperate in the enquiry. It was then stated by the management that the workman was discharged during the continuation of the period of probation. The Conciliation Officer reported failure of the conciliation proceedings on 24.5.71. On 1.10.71 the Government of India passed the impugned order which reads :    "In continuation of this Ministry's letter of even number dated the 11th June, 1971, I am directed to say that the Government of India do not consider the above dispute prime facie fit for reference to an Industrial Tribunal for adjudication as the action of the management in terminating the services of Shri K.L. Sharma cannot be considered to be malafide."  

(5) The validity of this order, refusing to make a reference has been challenged in this writ petition. Counsel for the petitioner has submitted that the reason assigned by the Central Government for not making a reference is wholly irrelevant and untenable in law. In his claim before the Conciliation Officer, it is pointed out, that the workman had not submitted that his termination was malafide. Relying on the decisions of the Supreme Court, the counsel then submitted that the question whether the probation of the workman was continued even after the period mentioned in the regulation is both a disputed question of fact and also partly a legal question. He further submits that even assuming that the question was one of malafide, that also is a question of fact and the appropriate forum was the Tribunal and not the Government of India deciding the matter administratively. In Bombay Union of Journalists vs. State of Bombay 19811 Llj 351 the Supreme Court has laid down that in regard to the questions of law and disputed questions of fact, the Tribunal is the appropriate forum under the Act and not the Government. In M.P. Irrigation Karamchari Sangh vs. Slate of M.P., , the Supreme Court has further held that the "Government should be very slow to attempt an examination of the demand with a view to decline reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 Section 12(5) of the Industrial Disputes Act nugatory."

(6) Section 12(5) of the Industrial Disputes Act states that where the Appropriate Government does not make a reference, it shall record and communicate to the parties the reasons thereof. When the Section prescribes that the reasons should be recorded and communicated to the parties when a reference is being declined, the object of the statute is very clear. The reasons should be substantial germane and relevant. They should not be such as would thwart the principal object under Section 10 and Section 12 of the Industrial Disputes Act. It is because of this requirement that the Supreme Court has said that unless the claim is frivolous or perverse the reference should not be declined' It was not even the case of workman that his discharge order was malafide, but even assuming it to be so, it cannot be a ground for the government to decline a reference by itself pre-judging whether the order is malafide or not. This is clearly the usurpation of the function of the Tribunal by the Government. On the facts of the case and in terms of the law laid down by the Higher Courts, the question of law that will arise in this case would be whether the workman would be deemed to be confirmed after the maximum period of probation is completed by him. So also would be the question as to whether the discharge was a discharge simplicitor in the face of the fact that specific charges were preferred against the workman. Naturally these are the questions which only the Tribunal is competent to decide. The Government of India has not properly exercised its discretion under Section 10 read with Section 12(5) of the Industrial Disputes Act. The impugned order is, therefore, set aside.

(7) In a number of cases viz. Workmen of Syndicate Bank, Madras Vs. Government of India & Anr. 1985 (1) Llj 93; Ramawatar Sharma & Ors. Vs. State of Haryana & Anr., 1985 (1) Scale 713; and V. Veerarajan & Ors Vs. The Government of Tamil Nadu & Ors. 1987 (1) Scale 42, the Supreme Court has directed the Government to make a reference to the Tribunal. From the facts of this case and the order passed by the Government, I find it a fit case where the direction should be issued to the Government of India to make a reference to the Industrial Tribunal. I accordingly direct that within one month from the date of this order, the Government of India shall make a reference to the Industrial Tribunal and the Tribunal shall dispose of the reference within four months thereafter. The writ petition is allowed. The Rule is made absolute. Counsel Fee Rs. 1000.00 .