SCA/1576/2001 of KAMLESH VISHWANATHAN BHATT Vs UNION OF INDIA on 26 December 2001

1. By way of this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 20.11.2000 whereby the Reference of the industrial "It is reported that the workman was engaged by regular EDA in his leave arrangement at the cost and responsibility of regular EDA. The workman has worked as substitute in leave resultant vacancy. Thus he acquired no right for continued appointment".

2. The relevant facts in brief, according to the petitioner, are that upon his service being illegally terminated, he had challenged it before the Central Administrative Tribunal by filing Original Application No.210 of 1996. After admission of the application, it was found at the time of hearing that the Tribunal had no jurisdiction, whereupon, the papers were returned on 12.8.1999 for being presented to the appropriate authority. Thereafter, on 24.9.1999, the petitioner had raised the dispute for being referred to appropriate forum under the Industrial Disputes Act, 1947 (`the Act' for short). According to the petitioner, he was in continuous employment since the year 1982 and since 29.1.1992 he was employed as Night Guard till his service was terminated. The exact period of service and the date of termination are not mentioned in the petition, but they may not be relevant for the purpose of deciding upon the main issue.

3. It is now well-settled that the decision of the Government to refer or not to refer a dispute is an administrative function. The Government is required to satisfy itself on the facts and circumstances brought to its notice as to whether an industrial dispute exists or is apprehended. As no lis is involved in the making of an administrative order, it is based on the subjective satisfaction of the Government. However, such orders are subject to judicial review and if it appears from the reasons required to be given for refusing to refer a dispute that the Government took into account any consideration which was irrelevant or foreign material, the Court may, in a given case, issue a writ of mandamus. As held by the Hon'ble Supreme Court in TELCO CONVOY DRIVERS MAZDOOR SANGH v. STATE OF BIHAR { 1989-II-LLJ 558 }, the formation of opinion as to whether an industrial dispute exists or is apprehended is not the same thing as to adjudicate the dispute itself on its merits and in performing the administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis. The Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and to allow the Government to do so would be to render Sections 10 and 12 (5) of the Act nugatory.

4. Examining the facts of this case in the context of the aforesaid legal position, it is clear that the Government has arrived at its own conclusion on the merits of the disputes as distinguished from the conclusion regarding existence of the dispute and refused to refer the dispute on the ground that the petitioner had not acquired any right for continued employment. This clearly amounts to adjudication which falls in the exclusive domain of the industrial forum provided under the Act.

5. The petition is, therefore, allowed, the impugned order dated 20.11.2000 is set aside and the Government is directed to reconsider the matter of referring the dispute of the petitioner for adjudication and to make a fresh order in accordance with the provisions of the Industrial Disputes Act and in light of the observations made in this judgment, within six weeks of the receipt of a copy of this order. Rule is made absolute accordingly with no order as to costs.

�����Sd/-

���� ( D.H.Waghela, J.)

(KMG Thilake)