Full Judgment Text
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PETITIONER:
PREM KAKAR
Vs.
RESPONDENT:
STATE OF HARYANA AND ANR.
DATE OF JUDGMENT05/04/1976
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1976 AIR 1474 1976 SCR (3)1010
1976 SCC (3) 433
ACT:
Writ of Mandamus-Whether Rule Nisi can be issued to
compel the State to make a reference U/s 10(1) of the
Industrial Disputes Act-Art 226 if the Constitution-
lndustrial Disputes Act,ss 5. 10(1) and 12(5)-Scope of.
HEADNOTE:
Under section 12(5) read with 10(1) of the Industrial
Disputes Act, if on consideration of a failure report u/s
12(4) from the conciliation officer, the appropriate
Government is satisfied and is of opinion that there is an
industrial dispute and a case for reference, it may make
such reference to the labour court.
On considering the "failure report", of the
conciliation proceedings in respect of the appellant, an
Electrical foreman, the respondent state informed him that
his duties being supervisory with wages more than Rs. 500/-
his case was not covered by the definition of the terms
"workman" under the Industrial Disputes Act and therefore,
not a fit case for adjudication. The appellant assailed the
said orders under Art.226, which was dismissed.
On appeal by special leave the appellant contended that
the question whether an employee is a workman or not was a
disputed question of fact and law and, therefore could only
be decided by a labour court and on a reference only but not
by the State Government while exercising its powers u/s
12(5).
Dismissing the appeal, the Court
^
HELD: (1) The order of the Government acting under s.
10(1) read with section 12(5) of the Industrial Disputes Act
passed after subjective satisfaction is an administrative
order and not a judicial or a quasi-judicial one. [1012A]
Sate of Madras v. C. P. Sararthy, [1953] S.C.R. 334 and
State of Bombay v. K. P. Krishnan & ors. [1961] 1 S.C.R. 227
[followed].
(ii) In entertaining an application for a writ of
mandamus against an order made by the appropriate Government
under section 10(I) read with s. 12(S) of the Act the court
does not sit in appeal over the order and is not entitled to
consider the propriety or the satisfactory character of the
reasons. If it appears from the reasons given that the
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appropriate Government took into account any consideration
irrelevant or foreign, then the court may in a given case
consider the case for a writ of mandamus. [1012-A-C]
Bombay Union of Journalists ors v. The State of Bombay
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of
1975.
Appeal by Special leave from the Judgement and order
dated 15-4-1974 of the Punjab and Haryana High Court in
Civil Writ Petition No. 4289 of 1973.
N. N. Goswami and Arvind Minocha for the Appellant.
G.B. Pai, S. R. Agarwal, Parveen Kumar and Khaitan &
Co. for Respondent No. 2.
1011
The Judgment of the Court was delivered by
RAY, C.J.-This appeal by special leave turns on the
question whether the State can be asked by a writ of
mandamus to make a reference under section 10(1) of the
Industrial Disputes Act (hereinafter referred to as the
Act).
The appellant was employed by the respondent company
Hindustan Dowidat Tools Ltd. The services of the appellant
were terminated on 4th September, 1972. The appellant
thereafter demanded reinstatement. The Conciliation officer
started conciliation proceedings under section 12 of the
Act. No settlement could be arrived at. The Conciliation
officer sent a report to the State Government under section
12(4) of the Act. The State Government by letter dated 7
June, 1973 informed the appellant that the Government had
considered the appellant’s case not fit for reference to the
Labour Court for adjudication.
The Government in the letter stated as follows:
"The Government have not found your case fit for
adjudication to a Labour Court because you were working
as an Electrical Foreman in this concern, which was a
supervisory job and your wages were more than Rs. 500/-
per month. Therefore, your case is not covered by the
definition of the terms "Workman" given in the
Industrial Disputes Act."
The appellant under Article 226 of the Constitution
applied for a writ of mandamus directing the State to make a
reference. The High Court dismissed the application.
The appellant contended that the question whether the
appellant was a workman was a disputed question of fact and
law which could be decided only by an appropriate Labour
Court. The appellant also submitted that if the dispute in
question raises questions of law the appropriate Government
should not give a final decision on the question. In short,
the appellant’s contention is that the issue whether the
appellant is a workman or not could only be decided by the
Labour Court and, therefore, reference should have been
made.
Under Section 10 of the Act where the appropriate
Government is of opinion that any industrial dispute exists
or is apprehended, it may at any time refer the dispute,
inter alia, to a National Tribunal for adjudication.
Section 12 of the Act deals with duties of Conciliation
officers. If the Conciliation officer cannot arrive at a
settlement of the dispute he sends a report to the
appropriate Government. Under section 12(S) of the Act if,
on a consideration of the report referred to in sub-section
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(4), the appropriate Government is satisfied that there is a
case for reference, 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.
1012
This Court in State of Madras v. C.P. Sarathy and State
of Bombay v. K.P. Krishnan & ors. held that the order of the
Government acting under section 10(1) read with section
12(5) of the Act is an administrative order and not a
judicial or a quasi-judicial one.
In Bombay Union of Journalists & ors. v. The State of
Bombay and Anr. this Court said that in entertaining an
application for a writ of mandamus against an order made by
the appropriate Government under section 10(1) read with
section 12(5) of the Act the Court does not sit in appeal
over the order and is not entitled to consider the propriety
or the satisfactory character of the reasons given by the
Government. If it appears that the reasons given show that
the appropriate Government took into account any
consideration irrelevant or foreign, then the Court may in a
given case consider the case on a writ of mandamus.
In K.P. Krishnan’s case (supra) the issues in dispute
related to a claim of classification for specified employees
and additional bonus and the sole ground on which the
Government refused to refer the dispute for adjudication
under section 12(5) of the Act was that the employees had
adopted go-slow tactics during the relevant year. The facts
were that the company had nevertheless voluntarily paid
three months’ bonus for that year and the report of the
Conciliation officer was in favour of the employees. This
Court held that the Government acted on irrelevant
considerations and issued a writ of mandamus.
In the present case, the fact is that the Government
found that the appellant was not a workman within the
definition of workman in the Act, and, therefore, it was not
a fit case for reference for adjudication.
The High Court rightly rejected the application. The
appeal is, therefore, dismissed. Parties will pay and bear
their own costs.
S.R. Appeal dismissed.
1013