The petitioner was an employee of 3rd respondent Bank. He had approached the District Labour Officer, Palakkad in Ext.P1 petition raising an industrial dispute against the 3rd respondent, alleging that the 3rd respondent had obtained a resignation letter by misrepresenting certain facts and by misusing such a letter service of the petitioner was terminated. The petitioner contended that the termination of service effected is not legal and that he is entitled to be reinstated with continuity in service. The Labour Officer, on failure of conciliation attempts, had forwarded a report to the Government. Since no action was taken on the basis of such report, the petitioner approached this court in a writ petition. In Ext.P5 judgment this court observed that the petitioner was an employee of the 3rd respondent Bank and the dispute between them have not resolved through since conciliation. Hence it is for the Government to act on the basis of failure report and to take appropriate action enjoyed under law. The 1st respondent was directed to take a decision within a period of one month. Exhibit P6 is the consequential proceedings issued by the 1st respondent. The Government found that the termination of the petitioner from service was effected on the basis of a resignation letter submitted by the petitioner himself and therefore the issue does not merit for consideration. Hence the Government recorded the issue, in exercise of power vested under Section 12 (5) of the Industrial Disputes Act, 1947 as follows.-
“The termination of employment of Sri. V.H. Abdul Nazar, S/o. Hamza, Attender, Pudupariyaram Service Co-operative Bank Ltd. By accepting his resignation is justifiable.”
2. It is challenging Ext.P6 the petitioner is approaching this court. Section 12 of the Act deals with the procedure in relation to conciliation of the industrial dispute. Sub section (4) provides that if no settlement is arrived by the Conciliation Officer a report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and about bringing a settlement thereof, should be forwarded to the Government 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. Sub section (5) provides that if on consideration of the report the Government is satisfied that there is a case for reference to the Labour Court or Tribunal it may make such reference. On the other hand, if the reference is not made it shall record and communicate the parties concerned the reason thereof. From the above provision it is clear that when the Government refuses to refer the case to the Labour Court or Tribunal it shall record the reason for such refusal. In Ext.P6 the reason mentioned is that employment of the petitioner was terminated by accepting his resignation and hence it is justifiable. But it is pertinent to note that the case of the petitioner while raising the dispute itself was that the resignation letter was obtained by misrepresentation and it was misutilised for termination of the employment. The term 'Industrial dispute' defined under Section 2 (k) contemplates any dispute or difference between employer and the workmen connected with employment or non-employment or the terms of employment or with the conditions of labour. Therefore this court is of the prima facie opinion that there exists a dispute with respect to non-employment of the petitioner by the 3rd respondent. However question posed for consideration is as to whether the 1st respondent has jurisdiction to decide whether the dispute raised is one coming within the purview of industrial dispute defined under the Act. The hon'ble Supreme Court in Telco Convoy Drivers Mazdoor Sangh and another V. State of Bihar and others (1989 (3) SCC 271) held that, Government's function under Section 10 (1) is administrative and the Government is not entitled to go into the question whether master and servant relationship existed and, on the basis of its finding in the negative, refuse to make reference of the dispute. It is further held that when the Government's refusal to make reference of dispute is found to be unjustified, the court can direct the Government to make a reference to appropriate Tribunal. A learned Judge of this court had occasion to consider a similar question in the decision reported in Mercantile Employees Association of State of Kerala (1987 (2) KLT 442). It is held that the decision of the Government as to whether it is expedient to refer for adjudication, is to be arrived at on relevant considerations without expressing anything on the merits of the case. Referring to another decision of the apex court in Syndicate Bank V. Government of India and another (1985 (1) LLJ 93) it was observed that, it would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct was proved against the worker in the departmental enquiry and that penalty was imposed after following the required procedure. The apex court observed that, if such a course was permitted it will be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker with opportunity of having the dispute referred for adjudication. Such a situation cannot be countenanced by law. It is held by this court that, when a dispute existed the only consideration should be whether it is expedient in the circumstances to refer that case and it is for the Tribunal or Labour Court to adjudicate the dispute.
3. On the facts of the case at hand it is evident that the Government have taken a decision not to refer the dispute based on the factual aspects involved, which is not admitted and disputed by the workman. The refusal for reference cannot be taken based on the version of other parties on the disputed aspects. Being an administrative action the Government is not supposed to have any evaluation or adjudication on the merits of the issue. Therefore this court is of the considered opinion that the reasoning mentioned in Ext.P6 for refusing the reference is unsustainable. As observed above, prima facie it is satisfied that there exist a dispute between the petitioner and the 3rd respondent relating to the employment/non-employment. Hence it is necessary for the Government to refer the matter to the appropriate Tribunal/Labour Court.
4. Therefore, this writ petition is allowed. Exhibit P6 is hereby quashed. The Government is directed to refer the dispute for adjudication by the appropriate Tribunal/Labour Court forthwith, at any rate within a period of one month from the date of receipt of a copy of this judgment.
5. It is made clear that this court has not expressed any opinion with respect to the maintainability of the dispute under the Industrial Disputes Act or with respect to existence of an industrial dispute coming within the purview of the provisions of the I.D Act. It is left open to the Labour Court/Tribunal to decide all such issues.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge