ORDER
1. The only grievance made by the learned counsel for the respondents is that since the Government has applied its mind and. found prima facie that the enquiry held was valid therefore, neither any labour dispute survives nor it can be referred to the Labour Court for adjudication.
In support of his contention learned counsel for the respondents relied upon Mehar Singh v. The State of Haryana and Anr. 1993 (2) PLR 77 and Bombay Union of Journalists and Others v. The State of Bombay and another, 1964-I-LLJ-351.
2. Learned counsel for the petitioner contends that the State has no jurisdiction to determine the dispute on merits. In the case in hand the reference has been declined and it would be expedient to reproduce the order declining the reference which reads as under:
“On the above said matter it is hereby informed you that the Government does not find it fit to send your matter for reference before the Court, because after enquiry it has come to the knowledge that you have worked with negligence and the organisation has suffered a loss of about 10,000 syringes and when the foreman tried to advise you, you behaved rudely with him and violated the discipline of the organisation and also created hindrances in the production. Thereafter from the enquiry you were found guilty. So accordingly your services were terminated for violating the industrial peace and discipline”.
3. In our considered view, we find no force in the submissions made by the learned counsel for the respondents. It has been specifically laid down in the judgments relied upon by the learned counsel for the respondent that the disputes which can be declined to be referred to the Labour Court are those disputes where State has come to a conclusion that it is frivolous or is belated etc. It has been specifically laid down in the judgments that the Government cannot enter into merits or demerits of the dispute. In case the submission made by the learned counsel for the respondent that the State has to prima facie go into the merits of the dispute, is taken to be correct, in that eventuality not only the object of the Act but also the right of the worker the quantum of punishment to be determined from the Labour Court would stand frustrated.
4. The State Government has categorically declined the reference after determining the dispute on merits i.e, the workman having worked with negligence and caused loss of 10,000 syringes behaved rudely with the foreman, violated the discipline, created hindrances in the production and valid enquiry has been held where all the charges stand proved. So far as the validity of enquiry causing of loss or hindrances in the production is a question of fact to be determined by the Labour Court after recording evidence of both sides. The State cannot be permitted to assume the role of Labour Court specifically not provided for it.
5. In Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and Others (1989-II-LLJ-558 (SC), it had been observed that while considering question whether reference should be made or not cannot delve into merits of dispute and determine the is itself. It has been further observed that State function while declining the reference or making the reference are administrative in nature. We may hasten to add that though it was observed that the State is entitled to form an opinion as to whether an industrial dispute exists or is apprehended. The existence of industrial dispute is not in dispute. As observed by the Hon’ble Supreme Court in Bombay Union of Journalists case (supra) and The M.P. Irrigation Karamchari Sang v. State of M.P. and Anr. (1985-I-LLJ-519)(SC), a reference can only be declined by the State if the dispute is frivolous or other relevant considerations like industrial peace etc. are involved.
6. It has been further observed in The Rajashtan State Road Transport Corporation and Ors. etc, v. Krishna Kant etc (1995-II-LLJ -728) (SC), that the power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment which is not unguided. The rule is to make a reference unless the same is frivolous one ex facie the government is conferred with the power to refer the dispute and not to decide.
7. The Industrial Disputes Act is a social Welfare legislation and has been enacted in order to provide effective, cheaper, efficacious summary remedy bereft of technicalities of Indian Evidence Act and procedural course before the Court remedy. The right of the petitioner to get the matter determined by the Tribunal cannot be taken away by the State under the garb of applying its mind for referring the disputes.
8. In our considered view, the order reproduced above is a decision on merits which was not within the purview of the State. So far as Mehar Singh’s case (supra) is concerned, the Division Bench of this Court after taking note of Bombay Union of Journalists case (supra) is concerned the conclusion on the fact that the dispute cannot be referred or the order decling in the reference is a valid order, which is not the case in hand. Apart from this the judgment in M.P. Irrigation Karmachan Singh’s case (supra) and Telco Convoy Drivers mazdoor Sang’s case (supra) which were binding were not brought on the notice of the Division Bench which decided Mehar Sing’s case (supra).
9. In view of observations made above, the impugned order Annexure P-2 is quashed, the respondent State is directed to decide the matter afresh in accordance with law. The writ petition is allowed with costs. Costs assessed at Rs.2000 to be borne by respondent No. 2.