1. The petitioner was appointed as Gangman with the western railway. As per the petitioner, he was on leave from 18.02.1991 to 27.12.1991, since he was sick and after producing medical certificate of fitness, he was reinstated from November,1995. Since petitioner remained on leave from April,1995 to October, 1995, his services were terminated by the Railway Authority. The dispute was raised by the petitioner through the union under the Industrial Disputes Act. The charter of demand was that the services of the workman have been illegally terminated, and therefore, workman is required to be reinstated in service with full backwages. The dispute came to be considered by Government of India, Ministry of Labour and at the time when the decision to be taken by the competent authority of Government of India, on the aspect of as to whether reference deserves to be made to the appropriate Court or not for adjudication under the Industrial Dispute Act, the decision has been taken at Annexure-B dated 17/21.08.2000, whereby the dispute is not referred for adjudication on the following reasons.
“Since the workman has admitted during the enquiry that he was unauthorisedly absent from 18.02.1991 to 27.12.1991 and the charges was proved and the penalty of removal from service was imposed accordingly, hence no need to refer this dispute for adjudication”.
Under the circumstances, the present petition.
2. I have heard learned advocate Ms.Kamani for learned advocate Ms.Pathak for the petitioner, learned advocate Mr.Qureshi for the respondent no.1 and learned advocate Mr.Juneja has filed his appearance for the respondent no.2.
3. As such the order for rejection of reference which is under challenge cannot be sustained in the eye of law since the authority who has to decide the aspect of making reference is not required to examine the merits of the action for termination. In the present case, the reasons reproduced herein above goes to show that the competent authority of the Government of India has examined the merits and thereafter, having found that the penalty of removal from service was imposed, it is found that there is no need to refer the dispute for adjudication. In my view, such can be said as ultra virus to the powers inasmuch as at the time when the dispute is referred for adjudication, it is only required to be examined as to whether it is a genuine dispute, which is required to be referred for adjudication to the appropriate Court or not. At this stage, the reference may made to the decision of the Hon'ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh and Anr. Versus State of Bihar and Ors., reported in AIR 1989 SC 1985 wherein the Hon'ble Apex Court has observed in Paragraph-13 and 14 as under:-
“13. Attractive though the contention is, we regret, we are unable to accept the same. 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 the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma V. State of Haryana, (1985) 3 SCR 686 :(AIR 1985 SC 915) :
M.P.Irrigation Karamchari Sangh V. State of M.P., (1985) 2 SCR 1019: (AIR 1985 SC 860):
Shambu Nath Goyal V. Bank of Baroda, Jullundur, (1978) 2 SCR 793 “ ( AIR 1978 SC 1088).
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P.Irrigation karamchari Sangh's Case (Supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a 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 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 that to allow the Government to do so would be to render Section 10 and 12(5) of the the Act nugatory.
4. If the facts of the present case are examined, in light of above referred legal position, the impugned decision cannot be maintained in the eye of law. Consequently, the same deserves to be set-aside.
5. In above view of the aforesaid observation and discussion, the impugned order at Annexure-B is set-aside with the direction to the respondent no.1 to examinine the question of reference of the dispute for adjudication, within a period of three months from the receipt of the order of this Court. The present petition is allowed to the aforesaid extent. Rule is made absolute. No order as to costs.
Girish (JAYANT PATEL,J.)