JUDGMENT
Vijender Jain, J.
(1) Petitioner has filed the present petition aggrieved by the order of the respondents declining to refer the industrial disputes for adjudication. Respondent-Delhi Administration vide its letter dated 10.10.74 declined to refer the disputes for adjudication on the ground that Lt. Governor of Union Territory of Delhi does not consider the disputes fit for reference to the Industrial Tribunal for adjudication that:- “(1)The disputes regarding reduction of hours of works was previously rejected by the Tribunal and there does not appear to be any change in circumstances requiring a reference once again. (2) Creation of posts of promotion is a function of management depending upon the need for such posts and other factors. The management has however been advised to examine the possibility of providing promotion in other Cadres.”
(2) Mr. Charya, learned Counsel for the petitioners has argued that the appropriate Government, i.e., Delhi Administration has decided upon the merits of the disputes which were not warranted under Section 10 of the Industrial Disputes Act (hereinafter to be referred to as the Act). Mr. Charya has further contended that whether the previous award of the Tribunal would operate as res-judicata or not, was a matter which ought to be adjudicated upon by the Tribunal and the Government was not empowered to decide the same. The said exercise on the part of the appropriate government is usurpation of power unwarranted by the provisions of Industrial Disputes Act.
(3) It has been next contended by Mr. Charya that creation of post by promotion cannot be left to the management and it was for the Industrial Tribunal / Labour Court which could have gone into this aspect and in any event if it was a management’s function relating to service conditions of the employees, the same ought to have been so determined by the Labour Court. Mr. Charya has further contended that promotion is an essential ingredient of service conditions as lack of generation of promotion creates stagnation adversely affecting the industrial peace. In support of his arguments he has relied upon Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and Others, in which Supreme Court held that: “REASONABLE promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly.”
(4) In support of his arguments that the refusal to make reference under Section 10 of the Act the Government relied on irrelevant and extraneous material which was not germane to determine the reference, therefore, the petitioner was left with no other remedy except to file writ petition in this Court. He has cited Ram Avtar Sharma and Others v. State of Haryana and Another Mr 1985 Supreme Court 915 which reads as under:- “……ALLthese relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore, if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus. It is equally well-settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision. In this case a dear case for grant of writ of mandamus is made out.”
(5) Nobody has put in appearance on behalf of the respondents.
(6) I have given my careful consideration to the arguments advanced by learned Counsel for the petitioner as well as the counter to the writ petition Filed by the respondent.
(7) Both the disputes of which reference has been declined by the Delhi Administration and the reasons which are given for declining such reference, the decision tantamounts to adjudication of disputes itself. In the case of dispute regarding reduction of hours of work reasoning that the same was rejected by the Tribunal and there was no change in the circumstances hence no reference can be made, is bad in law. Whether there was any change in the circumstances or whether the decision of the Tribunal would operate as res-judicata, these issues ought to have been referred to the Industrial Tribunal/Labour Court for adjudication. Similarly, creation of posts by promotion was needed in view of the facts stated in the disputes by the Union ought to have been determined on a reference by a Competent Tribunal.
(8) These disputes could not have been answered in abstract without reference to the facts and circumstances in regard to which the dispute was raised and that is why industrial adjudication always attempts not to answer questions in the abstract in order to evolve any general or inflexible principles. The best course to adopt in dealing with industrial disputes is to consider the facts of the case, the nature of the demand made by employees, the nature of the defense raised by the employer and decide the dispute. All these functions were to be performed by the Industrial Tribunal /Labour Court. Mr. Charya has also argued that merely because this petition is pending for more than 20 years would not make a difference in not referring the disputes. Learned Counsel has argued that still the petitioner demands adjudication of these disputes.
(9) In view of the aforesaid discussion, I hold that the impugned letter dated 10.10.74 was bad in law respondents assumed jurisdiction which they did not have while deciding to refer the disputes taking into consideration the merits of the disputes which was not warranted by law. The petition is allowed. Rule is made absolute. Letter dated 10.10.74 is quashed. Respondents are directed to refer the disputes for adjudication to the Industrial Tribunal/Labour Court. No order as to costs.