Wings Wear Corporation vs Workmen Of Wings Wear Corporation
1988 Latest Caselaw 222 Del

JUDGMENT

Arun B. Saharya, J.

(1) In this Letters Patent Appeal the main questions, among others, which have arisen are : (1) Whether the appropriate government can, in exercise of its power under Section 10(1) read with Section 12(5) of the Industrial disputes Act, 1947 (hereinafter referred to as the Act), in view of various decisions of the Supreme Court refuse to make a reference of an industrial dispute for reasons which purport to decide merits of the dispute ; and (2) whether the scope of that power has been altered by .Section Iia inserted in the Act with effect from 15th December, 1971.

(2) Several workmen-employed by the appellant were chargesheeted for misconduct. Domestic inquiry was held against them. Charges against the six concerned workmen were found to have been substanfiated. Consequently, they were dismissed from service. The workmen, through their union, approached the Conciliation Officer and submitted two identical statements of claim, one in respect of five workmen and the other in respect of the remaining one of them. They challenged validity of their dismissal on the grounds that the inquiry was unfair, that no opportunity was given to defend their cases, that the management implicated them in many cases during period of strike to victimise them, and that their dismissal amounted to victimisation for taking part in trade union activities.

(3) It appears that no settlement could be arrived at. The appropriate Government did not make a reference and the reasons therefore were communicated to the workers' union by a letter dated 18th August, 1971, hereinafter referred to as the impugned order. The workmen challenged it by a petition under Article 226 of the Constitution of India.

(4) Relevant part of the impugned order reads as under :- "As required under Section 12(5) of the Industrial Disputes Act, 1947, I am directed to inform you that for the reasons detailed below the Lt. Governor or Union territory of Delhi does not consider the above dispute, a fit one for reference to the Industrial Tribunal, Delhi, for adjudication. The dismissal of the following workmen, after holding domestic enquiry in which they fully participated.and were found guilty of the charges levelled against them, appears to be in order. 1.Shri Lakhi Ram 4. Shri Mohan Singh 2. Shri 0m Prakash 5. Shri Mebar Chand 3. Shri Sampuran Singh 6. Shri Chauthi Ram."

(5) It was averred in the writ petition, inter alia, that the appropriate Government has no power to adjudicate on the merits of an industrial dispute, which vests only in a Labour Court or a Tribunal under the Act, that the impugned order is without jurisdiction, and that the Government wrongly refused to make the reference by exercising powers not vested in it.

(6) The petition was opposed by the Government as also by the management. The Government asserted its exclusive jurisdiction to make or refuse a reference and questioned maintainability of the writ petition to challenge it. It also denied that the reasons communicated in the impugned order amounted to an adjudication on merits of the industrial dispute. The management, however, tried to justify the dismissal of the workmen on facts which led to it, as also on the grounds taken by the Government.

(7) The learned single judge found, on the basis of Supreme Court decisions in the State of Bombay v. K.P. Krishnan, , Bombay Union of Journalists v. State of Bombay, and Mis. Hochtief Gammon v. State of Orissa, , that the impugned order is justiciable and that the writ petition to challenge it is maintainable under Article 226 of the Constitution of India. However, in view of observations made in the case of Bombay Union of Journalists (supra), learned counsel for the workmen did not seriously press challenge to the impugned order on the ground that the Government had no power to decide the dispute on merits, and the learned single judge also felt that "appropriate Government prima fade did not find any merit in the contention of the workmen that the enquiry was unfair or that they had not been given reasonable opportunity to defend their case", and that use of the word 'appears' in the impugned order "shows that the appropriate Government had only taken a prima fade view which it was competent to do". The impugned order was quashed, nevertheless, on the ground that there is no indication whatsoever in it that the question of victimisation was taken into consideration, which was an independent ground raised by the workmen to challenge their dismissal. Consequently, the learned single judge directed the appropriate Government "to make an order under Section 10(1) read with Section 12(5) of the Act-regarding the said dispute within four months of this order, after considering the question of victimisation including the question of the severity of the punishment."

(8) In appeal, Mr. K.M. Diltia, learned counsel for the appellant ha submitted that judgment of the learned single judge be set aside as "(1) the High Court cannot direct the appropriate Government to make a reference (2) the workmen did not give any particulars of their bald plea of victimisation in the statement of claim, and, as such, no fault can be found with the impugned order for not giving any reasons to deal with that ground ; and (3) the question of severity of punishment was not even raised by the workmen in their statement of claim. Mr. Pai, learned counsel, who was allowed to take over from Mr. Dittia, has further submitted that despite recent decisions of the Supreme Court in Ram Avtar v. State of Haryana, and Workmen of Syndicate Bank, Madras v. Govt. of India, Air 1985 Sc 1967, (1) the Government is entitled to prima fade consider the merits of the disputes and to express its opinion thereon for giving reasons for refusing to make a reference, and (2) the court must not interfere with the impugned order made, on 18th August, 1971 as the said decisions were influenced by Section 11A which had been inserted in the Act by an amendment prospectively with effect from 15th December, 1971.

(9) Mr. Panjwani, learned counsel for the workmen, has contested the picas urged on behalf of the Management. In view of the later judgments of the Supreme Court In Ram Avtar v. State of Haryana and Workmen of Syndicate Bank (supra), he has asserted his right to assail the impugned order on the ground that it purports to adjudicate on merits of the dispute, which was not seriously pressed before the learned single judge in view of some observations made ia the decision of the Supreme Court in Bombay Union of Journalists (supra) which were not properly appreciated earlier. He has submitted that even without filing a separate appeal or cross objections, the workmen are entitled to urge this ground as the whole case is open in the present letters Patent Appeal.

(10) The first argument of Mr. Dittia is based on an erroneous assumption that the learned single judge has directed the appropriate Government to make a reference of the dispute. The operative part of the judgment directs the Government "to make an order under section 10(1) read with Section 12(5) of the Act". By an order under the said provisions, the appropriate Government may make a reference or may not make it. The requirement "to make an order" cannot be construed as a direction "to make a reference". Further, the argument completely ignores the later part of the direction, that is, to make the order "after considering the question of victimisation including the question of severity of punishment." Obviously, the appropriate government has 396 been required to make an order after considering the aspect of victimisation which was found by the learned single judge to be equally important and relevant for the purposes of forming an opinion whether this is a case for reference or not.

(11) The second argument of Mr. Dittia has also to be rejected. The reason for refusal to make a reference has to be recorded and communicated to the parties. If the appropriate government was not satisfied with the plea of victimisation raised in the statement of claim for want of sufficient particulars or otherwise, the Government should have recorded that as a reason for refusing to make the reference. It did not do so. Want of that reason in the impugned order cannot be supplied by the plea now raised by the management in this appeal.

(12) Next, regarding the relevant of severity of punishment, it is clear from decision of the Supreme Court in Bharat iron Works v. Bhagubhai, that if it is found that the dismissal of an employee is by way of victimisation, then it will be vitiated on that ground alone despite the fact that there is no violation of principles of natural justice in the course of the domestic inquiry, and also that "a grossly monstrous punishment which no rational person would impose upon an employee" may indicate victimisation. So, the learned single judge was right in observing : "It would also be victimisation if an employee guilty of misconduct is awarded punishment quite out of proportion to the gravity of the charge simply because he has displeased the employer for his union activities or for some other such reason." Further, it is clear from principles No. (1) and (3) enumerated by the Supreme Court in the Workmen of M/s. Firestone Tyre & Rubber Co. v. The Management, , that the Tribunal had the jurisdiction (even before Section 11A was inserted in the Act) to go into the quantum of punishment if a dispute was referred to it, and that interference with the decision of the employer could be justified if the management was guilty of victimisation. Since the workmen alleged victimisation, the learned single judge was justified in directing the appropriate Government to consider severity of punishment as a facet of victimisation even though that aspect was not specifically or separately raised by the workmen in their statement of claim.

(13) This brings us to the main questions in this appeal. Mr. Pai did not contest right of the workmen, even at this stage, to revive and press their challenge to the impugned order on the ground that the appropriate Government exceeded its power under Sections 10(1) and 12(5) by expressing prima facie opinion on merits of the dispute. He has argued, on the basis of decisions of the Supreme Court in K.P. Krishnan and in Bombay Union of Journalists (supra) that the appropriate Government was justified in doing so ; that there is a conflict between those decisions and the decisions in Ram Avtar and in Workmen of Syndicate Bank. Madras (supra) ; that the later decisions cannot prevail over the earlier decisions by larger benches of the Supreme Court; and that in any event, the said later decisions are inapplicable to the present case as the impugned order was made on 18th August, 1971 whereas those cases were decided on the basis of Section 11A which was inserted in the Act prospectively with effect from 15th December, 1971.

(14) To deal with rival contentions of the parties it is necessary to indicate the nature and scope of the power of the appropriate Government to make a reference, and its justiciability, as explained by the Supreme Court from time to time.

(15) The power of the appropriate Government to make a reference emanates from Section 10 read with Section 12(5) of the Act. It is purely an administrative power.

(16) In the case of K.P. Krishnan (supra) a Bench of five judges of the Supreme Court examined the scheme of the relevant provisions of the Act. Their Lordships have pointed out that Section 10(1) confers wide and even absolute discretion on the Government either to refer or to refuse to refer an industrial dispute as therein provided. This wide discretion has to be exercised by the Government bona fide and on a consideration of relevant and material facts. Where any industrial dispute exists or is apprehended, Section 12 requires the Conciliation Officer to hold conciliation proceedings. If no settlement is arrived at, the Conciliation Officer has to send his report to the appropriate Government under Section 12(4). This report must set forth the steps taken by the officer for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which in his opinion a settlement could not be arrived at. The object of requiring the Conciliation Officer to make such a full and detailed report is to apprise the Government of all the relevant facts including the reasons for the failure of the Conciliation Officer so that the Government may be in possession of the relevant material on which it can decide what course to adopt under Section 12(5). 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. If it is satisfied that a case for reference has not been made out it may not make such a reference ; but in such a case it shall record and communicate to the parties concerned its reasons for not making the reference which in the context means its reasons for not being satisfied that there is a case for reference. With regard to the problem which the Government has to consider while acting under Section 12(5), Gajendragadkar, J. has explained how the Government must deal with it. His Lordship has observed : "The problem which the Government has to consider while acting under Section 12(5)(a) is whether there is a case for reference. This expression means what Government must first consider whether a prima facie case for reference has been made on the merits. If the Government comes to the conclusion that a prima facie case for reference has been made then it would be open to the Government also to consider whether there are any other relevant or material facts which would justify its refusal to make a reference. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing on the merits of a case as well as on the incidental question as to whether a reference should nevertheless be made or not." While pointing out that it is not obligatory on the Government to make reference, the Court has also clarified that investigation and settlement of 398 disputes under the Act could not be prevented by the Government on grounds which are irrelevant or extraneous and if it did so the court can issue, and would be justified in issuing a writ of mandamus even in respect of such an administrative order. This position has been explained in the judgment in the following words : "IT is clear that the Act has been passed in order to make provision for the investigation and settlement of industrial disputes, and if it appears that in cases falling under Section 12(5) the investigation and settlement of any industrial dispute is prevented by the appropriate Government by refusing to make a reference on grounds which are wholly irrelevant and extraneous a case for the issue of a writ of mandamus is clearly established."

(17) In Bombay Union of Journalists (supra) a Bench of three judges of the Supreme Court again considered the nature and scope of the administrative power of the Government, as against the exclusive jurisdiction of the Tribunal/Court to adjudicate disputes, under the Act. In paragraph 6 of the judgment Gajendragadkar, J. has explained the difference between the two, and the permissible limit of the Government's power. His Lordship has observed: "It is true that if the dispute in question raises questions of law, 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 the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of service of appellants 2 and 3 cannot be accepted." It has been explained in paragraph 13 that the appropriate Government may have to consider the expediency of making a reference and after considering all the relevant fads, if the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. Further, it has been added: 399 "If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that of course, would be another matter ; in such a case a party would be entitled to move the High Court for a writ of mandamus." The principles deducible from various decisions regarding justiciability of exercise of Government's power under Section 10(1) and Section 12(5) have been set out in Hochtief Gammon (supra) by Alagiaiswami, J. as follows :- "The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of the relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not have been open to judicial scrutiny. Even if the Executive considers it expedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.".

(18) In Ram Avtar v. State of Haryana, (supra) the Supreme Court noticed its earlier decision in the case of Bombay Union of Journalists (supra) and has further explained that while performing an administrative act of making or refusing to make a reference the Government may "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." In doing so, the Government "cannot delve into the merits of the dispute and take upon itself the determination of lis". While dealing with the reasons given by the Government in that case, which were similar to those stated in the impugned order in the present case, the Desai, J. has held : "The reason given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was .legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function." Desai, J. has further opined :- ".....WHEREthe Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant ground or grounds not germane to the determination."

(19) Finally, in the case of Workmen of Syndicate Bank (supra) Bhagwati, J. has warned against the danger in permitting the Government to express its view on merits of an industrial dispute while purporting to decide whether to make a reference or not in the following words : "IT would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker's claim for adjudication. Such a situation cannot be countenanced by law."

(20) Thus, it is clear that to form an opinion under Section 10(1) read with Section 12(5), the Government has to consider the facts and circumstances relating to the dispute to decide whether an industrial dispute exists and whether it is not expedient to make a reference in a given case. If the Government does not make a reference, it has to record and communicate to the parties concerned its reasons therefore. To do so, the Government will be within its jurisdiction in expressing its prima facie view on the merits also. It is equally clear that the reasons recorded by the Government should not purport to reach a final decision on any question of law or on disputed questions of fact because adjudication of any dispute would be within the exclusive jurisdiction of a Tribunal or a Court under the Act. If the Government purports to do so, it would be said to have acted on extranedus, irrelevant ground or grounds not germane to the determination of the question before it. Refusal by the Government to make a reference is a serious matter as it prevents and excludes adjudication of a dispute. That is why the legislature has enjoined upon the appropriate Government a statutory duty to record and communicate to the parties concerned its reasons therefore. The reasons must be good. They must indicate reasonable application of mind and consideration of only relevant matters germane to the exercise of power by the Government, otherwise the court will strike it down.

(21) Mr. Pai has contended, however, on the basis of observations made by the Supreme Court in the last part of para 6 of the judgment in the case of Bombay Union of Journalists (supra), that use of the word 'appears' in the impugned order indicates merely a prima fade view on the merits expressed by the Government and that the Government was justified in doing so.

(22) The impugned order states that the appropriate Government did not consider the dispute "a fit one for reference". Obviously, the Government was satisfied in the present case that an individual dispute exists, but it did not consider it to be a fit one for reference. There is no magic in the use of the words like "appears" or "prima facie" in the reasons for refusal to make a reference. It is really the nature and the effect of the reasons which has to be seen to decide whether they purport to adjudicate upon the dispute.

(23) Whenever a view is expressed on the merits of the dispute it is really final, inasmuch as adjudication of that dispute is ruled out irrespective of the magic words being used or not. On the other hand, no fault can be found with reasons which indicate consideration and examination of merits of the dispute, and, in the light thereof, justify refusal to make a reference in a given case where an industrial dispute exists but it may not be expedient or otherwise reasonable to make a reference.

(24) The test is based upon a clear demarcation of the administrative powers of the Government under Section 10(1) read with Section 12(5) as against the adjudicatory jurisdiction of the court or Tribunal under the Act. The appropriate: Government cannot itself adjudicate an industrial dispute. If it purports to do so, courts will not countenance it.

(25) The, .questions whether the enquiry held by the management is fair. or, whether termination/dismissal is legal or justified or -whether the. punishment is reasonable or whether an act constitutes victimisation, have necessarily to be adjudicated, and, cannot be the subject matter of decision by the appropriate Government under Section 12(5) for the purposes of making order under Section 10 of the Act. Even a prima facie view on these aspects of the dispute cannot be expressed by the appropriate Government.

(26) In the present case, there is no doubt that an industrial dispute exists. The impugned order conveys only. a conclusion that, "the dismissal- appears to be order." The omitted words state the reason for this conclusion, namely, that dismissal of the named workmen was made "after holding domestic enquiry in which they fully participated and were found guilty of charges levelled against them." These reasons are wholly unrelatable to expediency or other matters which could justify opinion of the Government not to make a reference. The appropriate Government has really decided the dispute on its merits. The principles laid down in Bombay Union of Journalists .are of no avail to the appellant in the present case. On the contrary, the impugned order transgresses the limit of Government's power indicated in that case also in the later decisions of the Supreme Court. It is, therefore found that by the impugned order the Government expressed opinion on the merits of the dispute which it had no authority to do.

(27) Mr. Pai's next argument that there is a conflict in decisions of the Supreme Court in the cases of K..P. Krishnan and in Bombay Union of Journalists on one hand and in the cases of Ram Avtar and Syndicate Bank on the other hand, and that this Court should ignore the later decisions as the earlier 402 ones are by larger benches, cannot stand close scrutiny. It was clearly stated in K.P. Krishna's case that the questions whether an industrial dispute exists and whether it is not expedient to make a reference in a given case can be answered "in the light of all the relevant circumstances which would have a bearing on the merits of a case." In Bombay Union of Journalists' case it has been explained that to answer these questions, the Government has to prima facie examine the merits of each case and can express its prima facie view on it. In both these cases, the distinction between the purely administrative nature of the functions and power of the Government, and the exclusive adjudicatory jurisdiction of the Tribunal/Court, under the Act has been indicated. Demarcation of the two distinct jurisdictions has been further developed in Ram Avtar's case. Finally, in Workmen of Syndicate Bank, the Supreme Court has exposed the danger of exclusion of almost all cases from adjudication by the Government purporting to refuse to make a reference on the ground "that the charges of misconduct were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure." At first sight the observations made in the last part of para 6 of the judgment in Bombay Union of Journalists' case, seem to suggest that the Government can express its prima facie view on merits of the dispute to give the reasons for refusal to make a reference while the later decisions in Ram Avtar's case, and in Workmen of Syndicate Bank's case, find it impermissible. This impression is created on reading only a part of para 6 of the judgment in the case of Bombay Union of Journalists. It vanishes when the full text of para 6 is read, in its proper context, and, in the light of the whole scheme of the relevant provisions explained in that case as also in the earlier case of K.P. Krishnan. The principles laid down in those cases, based upon clear demarcation of purely administrative power of the Government as against the exclusive adjudicatory jurisdiction of the Tribunal, have been further developed in the later cases of Ram Avtar and in Workmen of Syndicate Bank. We find no conflict in these decisions. The case in hand has to be decided in view of all the four decisions of the Supreme Court.

(28) This brings us to the last argument of Mr. Pai that decisions in the cases of Ram Avtar and of Workmen of Syndicate Bank must be ignored, as, according to him, these decisions have been influenced by insertion of Section 11A in the Act by an amendment with effect from 15th December, 1971, whereas the impugned order was made earlier on 18th August, 1971.

(29) The question whether Section 11A can operate retrospectively arose in the Workmen of M/s. Firestone Tyre & Building Co. of India (P.) Ltd. (supra). The Supreme Court has held that it is prospective in operation and applies only to disputes referred for adjudication on or after the date of its coming into force.

(30) In Ram Avtar's case .the Supreme Court referred to Section 11A only to explain that the quantum of punishment has assumed a considerable importance after the introduction of that provision. The decision in that case was not influenced by Section 11A. The Government refused to make a reference for the reasons "as it had been learnt that your services were terminated only after charges against you were proved in a domestic enquiry." While dealing with these reasons the court found that "the reasons given by the Government would tantamount of adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function." The principle applied by the Court is worth repeating : "that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be 403 said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision." The purpose for which the Court: referred to Section 11A and the principles which governed the decision in that case are clear from the observations made by Desai, J. which are reproduced below in extenso: "THE assumption underlying the reasons assigned by the Government is that the enquiry was consistent with the rules and the standing orders, that it was fair and just and that there was unbiased determination and the punishment was commensurate with the gravity of the misconduct. The last aspect has assumed considerable importance after the introduction of Section 11A in the Industrial Disputes Act by Industrial Disputes (Amendment) Act, 1971 with effect from Dec. 15, 1971. It confers power on the Tribunal not only to examine the order discharge or of dismissal on merits as also to determine whether the punishment was commensurate with the gravity of the misconduct charged. In other words, Section 11A confers power on the Tribunal/Labour Court to examine the case of the workman whose service has been terminated either by discharge or dismissal qualitatively in the matter of nature of enquiry and quantitatively in the matter of adequacy or otherwise of punishment. The workmen questioned the legality and validity of the enquiry which aspect the Tribunal in a quasi-judicial determination was required to examine. A bare statement that a domestic enquiry was held in which charges were held to be proved, if it is considered sufficient for the exercising power of making a reference under Section 10(1), almost all cases of termination of services cannot go before the Tribunal. And it would render Section 2-A of the Act denuded of all its content and meaning. The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore if the grounds on which or reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well settled that the party aggrieved thereby would be entitled to move the court for a writ of mandamus. See Bombay Union of Journalists v. State of Bombay, . It is equally well settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision. In this case a clear case for grant of writ of mandamus is made out."

(31) Indeed, in the case of Workmen of Syndicate Bank, Bhagwati, J. followed the same principle without the need to even refer to Section 11A of the Act.

(32) In any event, the text of Section 11A itself shows that it applies only "where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court or a Tribunal or National Tribunals, for adjudication...." It comes into play only after a reference is made. It deals with the power of the Labour Court or the Tribunal. It has nothing to do whatsoever with the power of the Government which has to decide whether to make a reference or not. Examination of the relevant provisions of the Act broadly indicates two stages. First, pre-reference and the second, post-reference. At the first stage, if no settlement is arrived at, the appropriate Government has to decide whether to make the reference or not. As discussed earlier, that is purely an administrative function of the Government. The Government has no power of adjudication, That lies in the province of the Labour Court or Tribunal under the Act. After a reference is made, adjudication follows in the second stage. Section 11A comes into play only at the second stage. It has nothing to do whatsoever with the first stage. The Supreme Court was dealing with the first stage in the case of Ram Avtar, as also in the case of Workmen of Syndicate Bank. Therefore, it cannot be said that the decisions in these cases were dependent on Section 11A.

(33) By the introduction of Section 11A, the Legislature has not taken away any of the powers of the appropriate Government to give the same to the Tribunal instead. It has only enlarged the scope of the jurisdiction of the Tribunal. The power of the appropriate Government under Section 10(1) and Section 12(5) has not been altered in any manner whatsoever by Section 11A. Whether it operates prospectively or retrospectively is, therefore, of no consequence for the purposes of the present case.

(34) For these reasons, the argument of Mr. Pai that decisions in Ram Avtar's case and in Workmen of Syndicate Bank's case should be ignored cannot be accepted.

(35) Therefore, we find that the reasons given by the appropriate Government purport to decide the industrial dispute itself which the Government has no power to do. Further, we find that insertion of Section 11A has not altered the scope of the power of the appropriate Government under Section 10 read with Section 12(5) of the Act. 36. Accordingly, we modify the judgment of the learned single judge with respect to the power of the appropriate Government to decide the merits of the industrial dispute under the garb of giving reasons for refusal to make a reference. On the other points, we uphold the judgment of the learned single judge.

(36) Consequently, the impugned order is quashed. The appropriate Government is directed to consider the whole case afresh, including the question of victimisation and severity of the punishment, and to make an order under Section 10(1) read with Section 12(5) of the Act in respect of the industrial dispute between the parties, within four months from this order. The appeal is accordingly, dismissed with costs. Counsel's fee Rs. 2000/