JUDGMENT
S. Ramachandra Iyer, C.J.
1. Muthiah Pillai. who was employed by the South India Saiva Sidhhanta Works Publishing Society at Tirunelveli, was dismissed from service on 10-12-1959 on the ground that he was responsible for an article that appeared in an issue of “Indunesan” dated 24-10-1958 making certain allegations of malpractices committed by the directors of the society. No enquiry was held by the management to find out whether the employee was guilty of the conduct attributed to him and consequently there was no opportunity for the latter to show that the charge or suspicion against him was ill-founded. The Madras Press Labour Union, of which Muthiah Pillai was a member, took up ‘as cause and it raised an industrial dispute.
Conciliation proceedings which were initiated In consequence thereof, proved ineffective. The Labour Officer, who was entrusted with the conciliation work, while reporting his failure, intimated to the Government that the management was neither willing to reinstate the employee nor terminate his services by giving one month’s notice, on the footing that the previous dismissal was invalid. ‘The Government, on a consideration of the report, found that a reference of the dispute to the labour” court was not called for. By its order dated 14-9- J959 the Government stated:
“On a careful examination of the case the Government find that the termination of services of K. P. Muthiah Pillai is justified. The Union may, therefore, advise the worker to accept the Bum of Rs. 1034-47 offered of the management towards notice pay and compensation. There is no case for adjudication.”
The Labour Union at first applied to this court for the issue of a writ of certiorari, evidently on a misapprehension as to the nature of the order of the Government. But, later, it converted the application into one for the issue of a writ of mandamus |o the Government directing it to refer the dispute regarding the dismissal of Muthiah Pillai for adjudication by the labour court. Thus, the dispute, though it originated in the grievance of a single workman had, by reason of the espousal of his cause by the Union, gained support from the other employees of the same establishment who were members of that Union.
Veeraswami J. before whom the application for the issue of writ came up for hearing, held that the order of the Government was bad in two respects, namely
1. That it amounted to an adjudication of the dispute on its merits, which -the Government had no jurisdiction to do; and
2. that as no reasons had been given by the Government for its conclusion, its order contravened Section 12(5) of the Industrial Disputes Act. Conformably to the view thus expressed, a writ of mandamus was issued directing the Government to consider afresh whether a reference of the dispute to the appropriate authority under the Act is called for. The judgment in the case is reported as Workmen of South India Saiva Sidhanta Works: Publishing Society v. Government of Madras Reported in Ed.
The State Government have now appealed against the judgment.
2. Before taking up the substantial question raised in the appeal, we shall have first to deal with an objection raised by the learned Advocate General appearing for the Government – an objection which does not appear to have been taken before the learned Judge – regarding the propriety of issuing a writ of mandamus when the employer has not been made a party to the proceedings before this court. There is a misapprehension underlying the objection. The direction issued by the learned judge is one that requires the Government to do its duty, as the purported order of the Government in his view is non est in law. It is now well-settled that a writ of mandamus can issue even with respect to administrative acts, the only requirement being that there should exist a duty, public or quasi-public, in the body to whom the writ is addressed to perform that duty. It; cannot be disputed that a writ of mandamus will lie against the Government, if it refused to refer an industrial dispute for adjudication Under Section 10(1) of the Industrial Disputes Act, if such refusal is found to be either not bona fide or based on considerations of wholly irrelevant facts and circumstances.
Again, where the Government does not record and communicate to the parties its reasons for not making a reference Under Section 12(5), it will be open to the aggrieved party to apply to this court under Article 226 of the Constitution for the issue of a writ of mandamus to direct the Government to perform its duly. This has been authoritatively laid down in the decision of the Supreme Court in State of Bombay v. K. P. Krishnan, . The art which the Government will, in such a case, be directed to do is neither judicial nor quasi-judicial. It would, therefore, follow that in such cases the Government would not be bound to hear the parties before making a reference Under Section 12(5) read with Section 10(1) of the Industrial Disputes Act.
The nature and scope of the Government’s power in similar cases arose for consideration before the Privy Council recently in Beetham v. Trinidad Cement Ltd., 1960 I All EK 274, where Lord Denning observed –
“It was said that the Governor was, under the Ordinance, under a duty to ‘inquire into the causes and circumstances of the dispute’ before he appointed the board of inquiry; and that he had not enquired as he ought to have done. He ought, it was said, to have given a fair opportunity to both parties to make representations before he acted and the familiar passages in Local Govt. Board v. Arlidge, 1915 A. C. 120 were cited. Their Lordships reject this contention. True it is that the Governor had to inquire and, no doubt, he did – in his administrative capacity – but he had not to conduct anything in the nature of a judicial or quasi-judicial inquiry.”
It would follow from the principle implicit in the observations extracted above, that there are no two parties before the Government when it mates its mind either to refer or not to refer for adjudication an industrial dispute by the appropriate tribunal and there can be no question of affecting the right of any party by such an administrative decision on the part of the Government.
Therefore, it will be unnecessary for any aggrieved person moving this court for the issue of a writ of mandamus to direct the appropriate Government to refer an industrial dispute Under Section 10(1) of the Act, to implead as a party there* to the other party to the dispute, e.g., the management. The question before the superior Court in such a case will be, whether to issue a writ or not, and on that question the only person interested will be the Government. We cannot, therefore, accept the contention urged on behalf of the Government that the learned Judge had no jurisdiction to issue the writ of mandamus without giving an opportunity to the employer to show cause against its issue.
3. On the merits of the case, the fact that the Government had not recorded reasons for its refusal to make a reference of the industrial dispute, will be sufficient to support the writ issued by the learned Judge. But, out of deference to the arguments of the learned counsel on either side, we feel bound to deal with the larger question as to whether it would be competent for the Government to come to a conclusion on the merits of the dispute before making up its mind either to refer to or not to refer an industrial dispute for adjudication.
4. The view taken by Veeraswami J. in the judgment under appeal has been reiterated by the learned Judge in a subsequent decision in Salem Dist. Textile Workers Union v. State of Madras where it was held that it would not be competent to the Government to determine a disputed question of fact and on that basis come to a conclusion that there was no case for adjudication by the tribunal functioning under the Act.
5. The opinion thus expressed has been challenged by the learned Advocate General as erroneous, the reason being that it will be necessary for the Government in certain cases to consider the relevant matters before deciding the propriety of making a reference Under Section 10(i) or 12(5) of the Act.
6. For a due consideration of the question raised, it is necessary to refer to the relevant provisions of the Act, namely, Sections 10(1) and 12(5); the former enables the appropriate Government to refer an industrial dispute for adjudication by the Tribunal appointed under the Act.
7. But before we refer to them we would like to point out that the duty performed by the Government in making a reference or in refusing to make a reference, of an industrial dispute for an adjudication, can in no way be regarded as a “decision” if that word is taken to import an idea of judicial adjudication. What the Government does in such cases, and this we have pointed out earlier, is purely an administrative duty not involving a determination of the rights of parties to the dispute. Section 10(1), which enables the Government to refer a dispute for adjudication by the tribunal referred to in the section, speaks of the Government being of opinion that “any industrial dispute exists or is apprehended”. That implies that the Government has to arrive at a conclusion, subjectively as it has been held as to whether an industrial dispute exists or is apprehended. Even if that condition were satisfied, the Government will still have to consider whether it is expedient to refer the dispute for adjudication, Section 12(5), which occurs in the chapter dealing with the procedure, powers and duties of the authorities functioning under the Act, deals with a case where efforts at conciliation of an industrial dispute have proved futile and a report of the attempts made by the conciliator is before the Government. In such a case, the Government will have to consider the report, and if it is satisfied that there is a case for reference, it should make such a reference.
Although the language of Section 12(5) refers to the satisfaction of the Government on the basis of the report, and, as we shall show presently, after tailing other relevant matters into consideration, the power vested in the Government of referring the dispute, for adjudication has to be exercised only Under Section 10(1) of the Act. In the Supreme Court has held that Section 12(5) does not by itself, and independently of Section 10(1), confer a power on the appropriate Government to make a reference. If therefore, a reference has pot to be made Under Section 10(1), it will be the duty of the Government first to satisfy itself, on the facts and circumstances brought to its notice, that an industrial dispute exists or is apprehended,’ in relation to an industry.
In State of Madras v. C. P. Sarathi , Patanjali Sastri C. J. observed:
“But it must be remembered that in making a reference under S. to (i) the Government is doing an administrative act and the fact that it has 10 form an opinion as to the factual existence of. an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as i it was a judicial or quasi-judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on. which it could have come to an affirmative conclusion on those matters.”
From this, it will be evident that an enquiry inter the facts by the Government, so long as it is art enquiry made for the purpose of finding out whether an industrial dispute exists or whether there is a reasonable apprehension thereof, and also for the purpose of deciding as to the expediency of making a reference, is not shut out.
Now, an industrial dispute, according to the Act, (so far as it is relevant for the present case) will be one between employers and workmen, which, is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. An individual dispute will, if it becomes a collective dispute between the workers on the one hand and the management on the other, be also an industrial dispute. Per contra, an individual dispute which has not become a collective dispute, cannot be regarded in any sense, as an industrial dispute. Again, from the definition of the term “industrial dispute” and from the provisions of Section 10(1) it will be clear that it is not necessary for the existence of an industrial dispute that the claim, on behalf of the labour should necessarily be a lawful one. The essential requirement is that such claims should be on behalf of the workmen generally.
In Bird v. O’Neal, 1960-3 AH E R 254, the Privy Council held that the lawful dismissal of a workman can properly form the subject-matter of a trade dispute. What the Government, therefore, will be concerned with, before making up its mind to refer an industrial dispute for adjudication by the tribunal, will be whether a collective dispute between the labour and the management exists or is apprehended, and secondly, whether it is expedient to refer such a dispute for adjudication, and not whether the impugned action taken by the management, which gave rise to the dispute, is lawful or unlawful.
8. The considerations that should weigh with the Government before it decides to make a reference or refuse one, have been referred in the leading case of , Gajendragadkar J, observed:
“The problem which the Government has to consider while acting Under Section 12(5)(a) is whether there is a case for reference. This expression means that Government must first consider whether a prima facie case for reference has been made on .the merits. If the Government comes to the conclusion that a prima facie case for reference has been made, then it would be open to the Government also to consider whether there are any other relevant or material facts which, would justify its refusal to make a reference. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing ‘on the merits of a case’ as well as on the incidental question as to whether a reference should nevertheless be made or not. A discretion to consider all relevant facts which is conferred on the Government by Section 10(1) could be exercised by the Government even in dealing with cases under 5. 12 (5) provided of course the said discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances and the second part of Section 12(5) is complied with (Italics are (here in ‘ ‘) ours).
Again
“Though considerations of expediency cannot be excluded when the Government considers whether or not it should exercise its power, to make a reference, it would not be open to the Government to introduce and rely upon wholly irrelevant and extraneous considerations under the guise of expediency. It may, for instance, be open to the Government in considering the question of expediency to enquire whether the dispute raises a claim which is very stale, or which is opposed to the provisions of the Act, or is inconsistent with any agreement between the parties, and if the Government come to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference.”
It will be clear from the foregoing passages that the Government cannot avoid considering the merits of the case and other relevant circumstances adverted to above, for the limited purpose o making up its mind either to refer the case for adjudication or not.
In the case just now cited if was observed:
“It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice and it is in the light of all these facts it has to come to its decision whether a reference should be made or not.”
The question whether there is a prima facie case for reference, which it will be the duty of the Government to consider in a case coming either Under Section 10(1) or 12(5) of the Act, will necessarily involve going to some extent at least into the merits of the case.
It will be useful to refer, in this context to a few cases arising Under Section 33 of the Industrial Disputes Act where, while the industrial dispute is pending adjudication, the management can, with the express permission in writing from the Tribunal, alter the conditions of service or punish a workman protected under the provisions of that section. In these cases, the Tribunal which is to give the permission is required to consider whether the charge against the delinquent workman is prima facie proved or not. It has been held that such prima facie consideration of the merits of the case is not tantamount to an adjudication on the merits of the case. Therefore, an authority which for the purpose of discharging its duty goes into the matter prima facie cannot be held to have decided the! matter itself.
9. In Atherton West and Co., Ltd. v. Suti Mill Mazdoor Union, it has been held that permission given under a provision similar to that in Section 33 referred to above, would have the effect of merely removing the ban on the right of the employer to dismiss (the workman and cannot by itself validate a disciplinary action, if otherwise, it is, invalid. Again the power conferred Under Section 33 has been held in the Automobile Products of India Ltd. v. Rukmaji Bala, as not amounting to the same thing as the power to adjudicate upon the dispute, but it is as only to decide as to whether permission should be given or not. Under the provision, the only thing that the tribunal has to consider is, whether a Prima facie case has been made out by the employer for lifting the ban imposed by the section. If, therefore, on the materials before it, the tribunal is satisfied that there has been 0, fair enquiry in the circumstances of the case and that the management has bona fide come to the conclusion that the worker was guilty of misconduct with which ha had been charged, a prima facie case should be held to have been made out, and the tribunal would be bound to permit the employer to punish the workman – Vide Lakshmi Devi Sugar Mills Ltd. Ramsarup, 82).
10. It will follow that, on the principle of the decisions referred to above, in considering whether there is a prima facie case or not, the Government will have to go into the question of the merits of a case to some extent. But that does not, and indeed cannot, go to the extent of an adjudication on the merits of the case. Once the Government comes to the conclusion that there is a primam facie case, it will be its duty to refer the dispute, unless it considers that it is inexpedient to do so. For example, even though an industrial dispute exists or is apprehended, it may be that the Government considers that the claim is a stale or a frivolous one; then it will be entitled, in -the exercise of its discretion, to decline to refer the matter for adjudication. But where the case arises after the failure of the conciliation proceedings, the position will also be the same as reference even in such cases will have to be Under Section 10(1) only. I There will, however, be this difference, namely, that the Government will be bound to give reasons for its conclusion. These reasons can always be looked into by the .superior Court for the purpose of satisfying itself whether the Government acted in the due exercise of its powers. In either case, it will be the duty of the Government both in the interests of the industry as a whole and also in the due performance of its duties under the statute, to consider prima facie whether there is a case for reference to the industrial tribunal.
11. Sri V. G. Row on behalf of the Union has contended that, normally speaking, the Government would be bound to refer any dispute brought before it, in respect of which such a reference is sought, unless there be some specific reason for not so referring. We are of opinion that the contention so stated is too broad to be accepted. It may be that where an industrial dispute arises in a public utility service concern, different considerations might arise and the Government might, while in referring such disputes for adjudication, adopt that rule. But whether it be public utility industrial otherwise, the Government will have to consider the conflicting principles of securing an industrial peace and also helping the industrial economy and development. The mere fact that a dispute has been raised by all the workmen cannot mean that the Government should necessarily refer the dispute; Under Section 10 it has got. to exercise a. discretion before it decides to do so.
12. The problem may not present much difficulty when the industrial dispute relates to the workers or a section of workers generally. There, unless the dispute is either stale or frivolous, the Government should ordinarily leave it to the tribunal to adjudicate upon it. But even there, cases may arise where industrial disputes are raised not perhaps with the object of bettering the conditions of the labour but on account of the rivalries between various unions who claim membership in an industrial establishment.
13. Where, however, the industrial dispute is the outcome of an. individual dispute, the case will require greater scrutiny by the Government. In such a case, the fact that a union sponsors an individual dispute cannot mean that the Government should, as a matter of course, refer such a dispute Under Section 10(x). To hold otherwise would be to render futile the discretion vested in the Government under that provision. Let us make cleat what we mean by an illustration. Suppose, a dispute arises as a result of the dismissal of a work 111 an in an industrial establishment by reason of disciplinary action having been taken against him for misconduct. If there had been a proper enquiry in that matter by the management, or if for example, the workman had been convicted by the ordinary Courts of the land for the misconduct alleged, the Government will be justified in such a case to come to the conclusion that there is no prima facie case for reference. It cannot be said in such a case that the Government cannot look into the merits of the case. Again, it is well settled, that an Industrial Court cannot and does not, as a Court of appeal capable of substituting (sic) its judgment for that of the management in such disciplinary matters except where there is want of good faith on the part of the management, when there is victimization or unfair labour practice or the management has been guilty of a basic error or violation of a principle 01 natural justice, or on the materials the finding is completely baseless 01 perverse.
These principles have been laid down in Indian Iron and Steel Co. Ltd. v. Their Workmen, 1958 SCR 667 : (AIR 1:958 SC 130) and have been reaffirmed later in G. McKenzie and Co. Ltd. v. its Workmen and. again in Management, Balipara Tea Estate v. Its Workmen, . In the last mentioned case it was held that the misconduct for which the workman’ was dismissed if it had been done after the enquiry need not be proved to the satisfaction of the tribunal before whom the matter comes rip on reference in order to sustain the order. But the rule laid in the above cases will apply only when, there had been a proper enquiry by the management; it however, there had been no enquiry by the management, the issue about the merits of the impugned order of dismissal would be at large before the Tribunal and it would be competent to take evidence and decide for itself, whether the misconduct alleged has been proved and the punishment can be sustained; vide Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation : Except in the cases referred to above, it will not be competent for the tribunal, to which reference has been made, to depreciate the evidence; see Doom Dooma Tea Co. Ltd. v. Assam Chah Karmachari Sangha, 1960-2 .Lab V, J 56 (SC). In those cases, the scope of the powers of the Industrial Tribunal in respect of a disputed action taken by the management against its employees being limited, it will be for the Government to see whether the order of the management is prima facie bad or one that could be assailed for one or more reasons pointed out above.
14. An industrial dispute may originate due to a variety of reasons. But its essential characteristic will always be a difference between the employer land the employees in an industry in relation to a claim generally on behalf of the latter, or of a section of the workers or even of one person. In R. v. Industrial Dispute Tribunal, 1957-2 All ER 776 Devlin, J. observed:
“There are all sorts of industrial disputes which arise out of a difference between the employer and the employees in factory in relation to a claim made merely by one man, cases for example, where one man is unfairly victimised, or is unfairly victimised in the estimation of his fellow employees, and his fellow employees may made themselves parties to the dispute because they may say ‘Unless this man is treated in the way in which we think that he ought to be treated, there is going to be trouble.’ Or there may be other reasons which cause men to be interested and to wish to make themselves parties to a dispute which concerns only the claim of one man. Without being materially affected, other people may feel that their prospects of promotion are injured generally. They may be interested in the principle of the thing. They may say ‘If a, person of the length of service of Mr. Carreck is not promoted, what is going 10 happen to us when we get to that stage?’ Or there may be, on the facts which 1 have recounted, some general principle involved in the (‘dispute on which this particular claim happens to be founded which is .selected as a test action, the general principle here being whether it is right or wrong for the applicants to adopt the attitude that they will nor. discuss individual claims with the trade union but will discuss them only with the individual) concerned.” (Italics here into ‘ ‘) are ours.
15. What have been stated above are undoubtedly matters which the Government can legitimately (take into account while coming to a conclusion is to the expediency of referring an industrial dispute. It can therefore be broadly stated that it is not every individual dispute which has been. sponsored by a trade union or by an appreciable body of workers that should be referred for adjudication; the matter has to be looked into and if the Government finds that a question of principle; is involved, in the matter of the grievance of the individual worker, then all the other workers who sponsored his case may be regarded as parties to the dispute, though they might not be directly affected by the particular action taken by the management in such a case. That case will undoubtedly be a proper one for adjudication by a tribunal. It has been observed by Delvin, J. in the case to which we have made reference earlier):
“If the union chooses to make the matter a union issue, if it chooses to take up the cudgels on behalf of its member and thereby to become belligerent in the matter, it is a dispute to which more than one workman is a party. No doubt, the union, will not do it unless there is a matter of some general principle involved; but if the union chooses to make it a general issue, it becomes a dispute to which the whole body of workmen or group are made parties.”
Where, therefore, the union of workers takes up an individual dispute, no principle being involved therein, it will be for the Government to consider he merits of the case and decide whether it should refer the matter for adjudication Under Section 10(1) or 12(5). If, on the other hand, a question of principle is involved, like victimisation, unfair labour practice or the punishment of a worker without even an enquiry, it will be the duty of.
Government to act under those provisions. Such derisions as the Government arrives at in these cases are not decisions in the dispute but only a decision as to whether the machinery created by the statute should be put into action with a view to solve the dispute. In the present case, there has been no enquiry by the management before terminating the services of Muthiah Pillai. That case would fall within the principle to which we have made reference and the Government will be bound to refer. Although the view taken by the learned Judge in the case now under appeal well as in has been rather broadly expressed, we are of opinion, that the conclusion reached by the learned Judge in the present case cannot be assailed.
16. The appeal fails and will be dismissed with costs.
