JUDGMENT
Rajesh Balia, J.
1. Having heard the learned counsel for the parties, we are of the opinion that this appeal deserves to be allowed.
2. This appeal was filed by the appellant challenging the order of the State Government acting as appropriate Government under the provisions of the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) refusing to make reference when it had received failure report from the Conciliation Officer, namely, Joint Labour Commissioner. The order of rejection reads as under :-
^^mijksDr fookn esa le>kSrk vf/kdkjh] mn;iqj
ls izkIr vlQy okrkZ izfrosnu esa mfYyf[kr rF;ksa ds vk/kkj ij fofnr gqvk gS fd
Jfed dks xaHkhj vuq’kklughurk ds vkjksi ij mls i;kZIr lquokbZ dk volj fn;s tkus
ds i’pkr~ lsok ls i`Fkd fd;k x;k gS A mDr vk/kkj ij le>kSrk vf/kdkjh us bl
fookn dks U;k; fu.kZ;kFkZ izsf”kr fd;s tkus ;ksX; ugha ekuk gS A
vr% ,slh fLFkfr esa jkT; ljdkj vkS|ksfxd fookn
vf/kfu;e] 1947 dh /kkjk 12¼5½ ds vUrxZr iznRr ‘kfDr;ksa dk iz;ksx djrs gq, mDr
fookn dks U;k; fu.kZ;kFkZ izsf”kr ugha dj jgh gS A**
3. The order was apparently beyond the jurisdiction of the appropriate Government while considering whether reference has to be made or not?
4. The petitioner appellant raised a dispute before the Divisional Joint Labour Commissioner, Udaipur, inter-alia, on the grounds that he was appointed with the respondent No. 3 on 24.7.1980 as workman and he was refused tobe taken on duty on 16.6.97, and, prior to terminating his services no notice etc. was served on him.
5. The notice of the said complaint being issued to employer, the employer disputed the factum of dismissal without notice. He took the stand that on allegation of indulging into dispute and scuffle with fellow workmen and inciting to close the work, he was suspended on 19.6.97. Thereafter, the workman was charge-sheeted. Even after giving charge sheet, two opportunities were given to submit his Explanation but he did not furnish the explanation. Looking to his grave mis-conduct, a disciplinary enquiry was commenced. He was called upon to appear on 21.7.97 for participating in the enquiry proceedings. However, the delinquent did not participate in the enquiry. He was again called upon to appear on 30.7.97 by registered post but he did not appear. Therefore, on 31.7.97 by an ex parte proceedings, enquiry was concluded. On 8th August 1997, the enquiry report was submitted by the Enquiry Officer. After receiving the Enquiry Report, by an order dated 16.9.97 he was terminated from service.
6. Thus, there being non conciliation, the Conciliation Officer submitted the failure report saying that despite conciliation meeting, the employer is not willing to take employee on job.
7. Apparently, there has been contentious issue between petitioner appellant workman and respondent employer on the ground that it was termination without any notice and without following required provisions of Industrial Disputes Act, and whether it was termination simplicitor or termination was by way of punishment due to mis-conduct. The Joint Labour Commissioner submitted a failure report in this regard.
8. Principally the position is settled and it does not require elaborate discussion that jurisdiction of appropriate government while considering whether the dispute is referable to Industrial Tribunal or Labour Court for adjudication or not is only confined to whether an industrial dispute exists or is apprehended to exist, and such jurisdiction does not extend to consider the merit of dispute which is shown to exist. A state dispute may be refused to be referred to Industrial Tribunal or Labour Court as the case may be, not on the ground that who is right or wrong, but on the ground that due to passage of time it has ceased to exist or it is not expedient to disturb the industrial peace by taking up stale claims.
9. The necessary opinion about existence of dispute or apprehended dispute is to be framed by the Appropriate Government and is not ordinarily open to judicial review merely on the ground of adequacy or sufficiency of material for formation of such opinion.
10. In making or refusing to make a reference the Appropriate Government not acts only administratively on its subjective satisfaction on the basis of material available with it. It is also trite to say that the Appropriate Government does not function as a judicial or quasi-judicial authority for determination of rights of parties.
11. The discretion by the Appropriate Government has to be exercised in a manner that it does not transgress into adjudicating jurisdiction by pronouncing upon the merit of dispute which exists.
12. The Appropriate Government is only expected to decide before making a reference as to ‘whether on a prima facie examination of the facts of the case, there is a dispute which requires a trial or adjudication by a Tribunal or the Govt. The Government cannot take up on itself the function of adjudication. The Appropriate Government cannot embark on the merit of the case and refuse to make a reference on the ground that domestic enquiry was properly and fairly held and order of punishment was justified.
13. A bare perusal of the impugned order refusing to make reference, after the State Government received the failure report from the Conciliation Officer reveals that there being no doubt about existence of dispute about termination of service of the petitioner, the State Government has encroached upon adjudicating territory by upholding the plea of employer that the workman was validly discharged after holding a proper enquiry after giving adequate opportunity of hearing.
14. Apparently the State Government acted without jurisdiction in declining make an existing dispute on its opinion about merit of the claims of parties. Such an order cannot be sustained on the face of it.
15. However, the learned Single Judge without adverting to this aspect of the matter has dismissed the writ petition on the basis of allegation made by the respondent employer that he has sent two cheques as arrears of emoluments and gratuity to the petitioner which he had accepted and these facts are not disclosed by the petitioner in his writ petition. Therefore, the petitioner cannot challenge the action of the respondents with the help of technicalities of law. The jurisdiction invoked by the petitioner under Article 226 of the Constitution of India is equitable and discretionary and can be invoked in favour of the persons who are coming before the Court with clean hands and discloses correct and true facts. The petitioner is not entitled to relief under extra ordinary jurisdiction, for the aforesaid non-disclosures, laches has also weighed with the learned Single Judge.
16. In our opinion, the petitioner ought not to have been non-suited on either ground; firstly, so far as ground of laches is concerned, it has been stated by the petitioner clearly that he has come to know of order dated 9th Jan. 2001, only in June 2001, when he received the copy of order and prior to that he has no information about the order. The petition was filed in Feb. 2002. In our opinion, it cannot be suffering from such laches which dis-entitles him from extra ordinary jurisdiction. There is no remedy available to pursue under the Industrial Disputes Act against the order of the State Government refusing to refer the case except to approach this Court. The remedy of civil court is not available to challenge the illegal termination.
17. So far as averments by the respondents that the petitioner accepted the sum of 2 months advance salary with earned leave and gratuity in Jan. 2002, also cannot come in the way of the petitioner. Significantly, there is no such assertion that any settlement was arrived at between the parties. It is apparent that the respondents have clearly taken the stand that they have dismissed the petition after holding the petitioner guilty of misconduct in a departmental enquiry somewhere in 1997. That was the plea put forward before Conciliation Officer refusing to accept petitioner in his employment. In Jan. 2001, the State Government excepting the plea on merit has refused to make a reference. It is strange that after about one year of refusal to make a reference, the employer has volunteered to pay not only advance salary but also the amount of balance leave and gratuity to make it post fact termination simplicitor.
18. Significantly, these amounts have been offered only a few days before filing of the writ. Such payment and acceptance would not have any bearing on the merit of termination order if it was otherwise invalid. Therefore, if a person out of employment for a period of 5 years and laying claim to reinstatement and emoluments for the entire period challenging validity of termination of his services its non-disclosure cannot be considered material for the decision of the case. It may be noticed that his case is termination of his service without notice whatever by abruptly refusing to take him on duty on 16.6.97 whereas the employer claimed to suspend him on 19.6.97 on allegation of alleged misconduct.
19. In this connection it may be recalled what Supreme Court said in Workmen of Subong Tea Estate v. Subong Tea Estate (1), that even if workmen have received sums paid to them in full and final settlement of their accounts, they would still be entitled to challenge the order of retrenchment for non compliance of the statutory requirements, if compensation as required by the Section has not been paid. In this case, the Court also spoke that technical pleas like acquiescence or estoppel does not apply to Industrial adjudication ordinarily. There cannot be estoppel against statute when noncompliance with the statute goes to the root of the matter.
20. The Supreme Court said about acquiescence and delay in the context of a party seeking industrial adjudication in Count Keen Williams (P) Ltd. v. P J Sterling (2), that pleas of acquiescence, estoppel and laches are ordinarily not appropriate to industrial adjudication.
21. In large number of cases principle has been accepted that rule of waiver or estoppel cannot be applied to retrenched workmen who have no freedom to refuse payment in view of their stand or financial position caused by retrenchment.
22. In the present case, the petitioner is seeking his right to seek industrial adjudication of dispute that exist between himself and his employer. He has immediately approached the Joint Labour Commissioner soon after termination of service in June, 1997, complaining about illegal termination of his services without any notice. Relationship of employer and employee is not in dispute. The employer claimed it to be a valid termination by way of punishment as a result of fair and proper enquiry. No payment or offer to payment of outstanding at that time is even alleged by the employer Stending of amount by the employer, which according to him in offence due to the employee at the time of his termination and even its acceptance now does it affect the validity or otherwise of termination. It was not even alleged that payment was made to and received by the petitioner by way of any settlement to resolve, the dispute. In these circumstances payment or receipt of the amount by the petitioner workman in Jan. 2002, shortly before filing of the writ petition challenging the order of refusing to make a reference has hardly any relevance to controversy raised before this Court in the writ petition. Therefore, the petitioner in our opinion can neither be held guilty of laches nor can be held to have suppressed material facts relevant for the lis.
23. In these circumstances, the appeal is allowed and the judgment of the learned single is set aside. The writ petition is allowed. The order dated 9th Jan. 2001 passed by the Appropriate Govt. is quashed and respondent No. 1 is directed to decide the question of making reference on the basis of failure report submitted by the Joint Labour Commissioner by taking relevant factor for making reference without entering into merits of the dispute, which undisputedly exists between the parties. This decision shall be taken within 2 months from the date of receipt of writ or furnishing certified copy of the judgment by any of the parties to the State Government whichever is earlier.
24. There shall be no order as to costs.