JUDGMENT D.K. Seth, J.
1. In this writ petition, the petitioner has prayed for a mandamus commanding respondent No. 1 to refer the dispute between the petitioner and his employer to the Industrial Tribunal for adjudication under the Industrial Disputes Act, (hereinafter referred to as 'the Act') on the ground that the respondent had arbitrarily refused to make the reference under Section 10(1) of the Act.
2. The Petitioner's case, inter alia, was that the petitioner was convicted in a criminal case. The appeal against the conviction was also dismissed. Consequently he had suffered the punishment of imprisonment. The services of the petitioner were terminated by letter dated July 12, 1974 on account of his conviction under Section 325 of the Indian Penal Code and sentenced to rigorous imprisonment for six months. In view of the provisions of Chapter XIX of the First Bipartite Settlement of October 1986 and Section 10 of the Banking. Regulations Act, 1949 without any notice. According to the petitioner, the offence under Section 325 of the Indian Penal Code cannot be termed as moral turpitude which exposes an employee to termination in view of para 19(2) of the said settlement. An enquiry was conducted in respect of the matter by the Enquiry Officer which has not been concluded whereas the petitioner was confirmed on June 1, 1972 though the alleged incident upon which he was convicted took place in March, 1970. Challenging the said termination, the petitioner had moved a writ petition being Writ petition No. 6582 of 1974 before this Court which was disposed of on February 8, 1977. By the said order, the writ petition was dismissed on the ground of alternative remedy with liberty to the petitioner to seek remedy under the provision of the Act. The cause of the petitioner thereupon was espoused by the Union of which he was member and a reference was sought for under Section 10(1) before respondent No. 1 for adjudication before the Industrial Tribunal. By order dated April 28, 1978, the respondent No. 1 refused to refer the said matter for adjudication to the Tribunal. Against this order, the aggrieved petitioner has moved the present writ petition.
3. Under the scheme of the Act, originally reference could be made under Section 10 only when the cause was espoused by the Union and it concerned a number of employees. By introduction of Industrial Disputes (Amendment) Act, 1965 introducing Section 2A, an individual dispute in case of termination of Service could also be subject- matter of reference, even though not espoused through the union or that does not concern a number of employees.
4. The scheme of the Act has nowhere prohibited that an individual dispute covered under Section 2A cannot be espoused by the Union. Matters covered under Section 2A can very well be espoused either by the concerned employee or through the Union. The espousing of the cause through the Union did not disqualify the concerned employee of his right to get the , dispute adjudicated by reference to the Industrial Tribunal being espoused by the Union. The scheme of Section 10(1) clearly lays down.
"10. Reference of disputes to Boards, Courts or Tribunals - where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may any time, by order in writing.
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry ; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any matter specified in the second schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to a Tribunal for adjudication.
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall unless it considers that the notice has been frivolously or vexa-tiously given or that it would be inexpedient so to do, make a reference under this subsection notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced"
5. There are two kinds of references, namely, voluntary reference and involuntary reference. Voluntary references are those in which parties to the dispute agree to refer the dispute for arbitration under Section 10A of the Act. Whereas involuntary reference or compulsory reference is envisaged in Section 10 of the said Act. Under Section 10 admittedly, it is the appropriate Government which is to consider whether an industrial dispute exists or apprehended in the industrial establishment and in such case, the same is to be referred for adjudication either to a Board, a Court of enquiry, a Labour Court or a Tribunal. A persual of the said section makes it clear that the order of reference is purely an executive or administrative act of the Government. While acting under the provisions of Section 10, the Government does not act judicially or quasi-judicially. The act of reference, as provided in Section 10, does not empower the Government to adjudicate the dispute. After the reference is made, the Government goes out of picture. In exercising the limited discretion under Section 10(1) of the Act, the appropriate Government may examine the merits of the case prima facie and form an opinion as to the existence or apprehension of the industrial dispute. The scope for the Government while acting under the said Act is confined only to find out the existence or apprehension of the dispute. It cannot enter into the merits of the dispute. If the dispute in question raises a question of law, the appropriate Government should not purport to reach a final decision on the question of law because that would normally lie within the jurisdiction of the Administrative Tribunal. Similarly on the disputed question of fact, the appropriate Government cannot purport to reach final conclusions since the same shall lie within the province of the Industrial Tribunal.
6. Their Lordships of the Hon'ble Supreme Court in the case of Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. (1964-I-LLJ-351) speaking through Gajendragadkar, J. held, relying on the case of State of Bombay v. K.P. Krishnan (1960-II-LLJ-592) at pages 354-355.
"The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. 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 Govt. 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 that 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 Govt. 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 services of appellants 2 and 3, cannot be accepted."
7. An analysis of the decision indicates that the appropriate Government must take the following into consideration for determination that it is a case where it would refer or refuse to refer the dispute to an Industrial Tribunal:
(a) It may consider the merits of the dispute and take into account other relevant considerations which would help to decide whether making of a reference would be expedient or not.
(b) if the dispute involves a question of law or of fact, it is not competent to reach a final conclusion on that point, for it lies within the power of an Industrial Tribunal.
(c) It is not precluded from considering the prima facie 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) of the Act or not. For example, if the claim made is patently frivolous, or is clearly belated or 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.
8. If it appears that the appropriate Government took into account a consideration which is irrelevant or foreign that might justify the claim for a writ of mandamus. In the case of Manohar Lal v. State of Punjab 1993 Lab I.C. 1763 a Full Bench of the Punjab and Haryana High Court held:
"There can be no gainsaying that for the redress of the grievances, an aggrieved person is entitled to claim a reference under the Act, meaning thereby that it is certainly a remedy available to him under the Act. That being so, I fail to understand as to how will it cease to be a remedy simply because the matter of reference depends upon the opinion of the Government. Further it would not be correct to say that the remedy cannot be asked for as a matter of right under Section 10 of the Act because where any industrial dispute exists or is apprehended, a reference can be claimed by the aggrieved person on showing relevant facts in that respect and on consideration of the entire materials if it is found that an industrial dispute exists or is apprehended and that it is expedient to refer a dispute for adjudication, the appropriate Government is bound to refer the dispute for adjudication. In case a contrary opinion is formed, the reference may be declined. While declining the reference the Govt. is required to apply its mind and act reasonably and not capriciously or arbitrarily nor according to whims or fancies. It would be pertinent to observe that if the Government does not choose to refer the dispute to any one of the authorities, it is obligatory on the Government to record its reasons for that and communicate the same to the parties as required under Section 12(5) of the Act. An aggrieved party then is entitled to approach this Court and show that the action of the Government in declining the reference is not legally sustainable. A little scrutiny of the provisions of the Act makes it abundantly clear that through the intervention of the appropriate Government of course not directly a very extensive machinery has been provided for settlement and adjudication of industrial disputes. In case the proposition propounded by the learned counsel for the petitioner is accepted, then the object of the Government in providing for an extensive machinery for settlement and adjudication of Industrial dispute would be frustrated. Thus, the remedy provided to a workman giving him right to claim a reference under Section 10 of the Act for the redress of his grievance is certainly an alternative remedy and does ordinarily bar the filing of a writ petition.
9. In the case of Prem Kakar v. State of Haryana and Anr. 1976(3) SCC 433. following the decision in the case of State of Madras v. C.P.
Sarathy and Anr. (1953-I-LLJ-174) and State of Bombay v. K.P. Krishnan (supra) it was 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 quasi- judicial one. It has also supported the view taken in Bombay Union of Journalists (supra)
10. In the case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihur and Ors. (1989-II-LLJ-558) the Supreme Court has laid down at pages 560-561 " 11. It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" as urged by Mr. Shanti Bhushan. 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"
"It is now well settled that, while exercising power under Section 10(1) of the Act the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into merits of the dispute and take upon itself the determination of the Us, which would certainly be in'excess of power conferred on it by Section 10 of the Act. (See Ram Avtar Shanna v. State of Haryana (I985-II-LLJ- 187), M.P. Irrigation Karmachari Sangh v. State of M.P. (1985-I-LLJ-519), Shambhu Nath Goyal v. Bank of Baroda, Jullundur (1978-I-LLJ-484) As has been held in M.P. Irrigation Karmachari Sangh (supra) there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."
11. In the case of Dhanbad Colliery Karamachari Sangh v. Union of India and Ors. (1991) Supp. 2 SCC 10 it has been held on the facts of the said case.
"The Central Government instead of referring for adjudication to appropriate Industrial Court under Section 10 of the Industrial Disputes Act, 1947, it itself decided the dispute which is not permissible under the law"
12. Now, in the present case, in order to appreciate the question, the order by which reference was refused is quoted hereunder:
"The Government of India do not consider the above dispute fit for reference to an Industrial Tribunal because the workman has neither raised the dispute himself under Section 2A of the Industrial Disputes Act, 1947, nor has his cause been expensed by a Trade Union of which he is a member or by a substantial number of workmen of the Bank. Furthermore the workman was convicted and sentenced to six months rigorous imprisonment for an offence under Section 325 I.P.C. and the management's action in terminating the services of the workmen in accordance with para 19.3(b) of the Bipartite Settlement dated October 19, 1966 and Section 10 of the Banking Regulation Act does not appear to be mala fide or unjustified:
13. It is apparent that the Government had not applied its mind so far as the first part is concerned inasmuch as the petitioner's cause was espoused by the Union of which he was a member. Therefore, in the present case, the Government has decided the question of fact which could be adjudicated by the Tribunal itself, namely as to whether the case of the petitioner has been propertly espoused by a Union of which he is a member or by a substantial number of workmen of the Bank. It is apparent that the Government has delved into deciding the merits of the case and have entered into the question of fact and law which lies within the jurisdiction of the Tribunal whether the petitioner's termination is justified or not, whether he is liable to be terminated in view of para 19.3(b) of the Bipartite Settlement dated October 19, 1966 or Section 10 of the Banking Regulation Act or whether the conviction for an offence under Section 325 of the Indian Penal Code amounts to moral turpitude leading to termination under the said provision are purely questions of law and fact which could not be decided by the Government. As has been held in the decisions referred to above, the scope of manoeuvre by the Government while acting under Section 10(4) of the said Act is circumscribed within the ambit as to whether a dispute exists or is apprehended and nothing more. In the present case, admittedly a ; dispute exists. As soon as the services of an employee is terminated and the justification of such termination is challenged by the employee, it is a normal conclusion that the employer would dispute such contention of the employee and maintain that the termination was justified. Dispute in its ordinary sense means that over some issue, two parties have two contrary and controversial opinions. Therefore a challenge to the termination as unjustified and claim by the employer as justified undoubtedly gives rise to a dispute. Therefore, in the present case, a dispute exists. It appears that the Government had avoided to consider about the existence of the dispute which it ought to have done in the facts and circumstances of the case. Instead of deciding as to whether any dispute exists the Government has delved into the merits of the case and decided the same thereby it had exceeded its limit and had encroached upon the domain of the adjudicative authority. As such the said order of refusal to refer dated April 28, 1978 as contained in Annexure '3', cannot be sustained and is liable to be quashed.
14. A very long time has lapsed in the meantime. It would be unwise to leave the petitioner at the mercy of the Government once again after the lapse of such a long time and thereby expose him to further delay. In the facts and circumstances of the case, I think the Government should be directed to make such a reference. In several instances, the Hon'ble Supreme Court had directed the Government to make a reference under Section 10(1) when the Government had declined to make such a reference and the Hon'ble Supreme Court was of the view that such a reference should have been made. Reference may be made to the cases of Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nadu (1983-I-LLJ-460) Ram Avtar Sharma v. State of Haryana (supra) M.P. Irrigation Karmachari Sangh v. State of M.P. (supra) and Nirmal Singh v. Stare of Punjab (1984-II-LLJ-396)
15. In the circumstances, the order dated April 28, 1978, impugned in this writ petition being annexure '3' thereto is hereby quashed and the Government is directed to make a reference to the authority mentioned under Section 10(1) of the said Act for adjudication of the dispute within the period of one month from the date a certified copy of its order is produced along with an application for reference by the petitioner himself, in case the petitioner makes such a representation along with certified copy of this order within a period of one month from the date a certified copy of this order is supplied to him. If such reference is made, the authority concerned shall dispose of such reference/dispute as expeditiously as possible without granting any adjournment unless it is extremely necessary in exceptional cases, preferably within a period of two years from the date of such reference.
16. In the result, the writ petition, succeeds. A writ of certiorari quashing the impugned order referred to above contained in Annexure '3' to the writ petition do issue to the extent indicated above. A writ of mandamus do issue commanding the respondent No. 1 to make the reference as indicated in the preceding paragraph within the time mentioned. There will, however, be no or-der as to costs.
17. Certified copy on usual terms be delivered to the petitioner, if applied within a week.