JUDGMENT
G.N. Ray, J.
1. This appeal is directed against the judgment dated 1st August, 1986 passed by the learned trial judge in Civil Order No. 8506(W) of 1985.
2. By the aforesaid judgment the learned trial judge dismissed the writ petition made by the appellant inter alia challenging the propriety of refusal by the Central Government to refer the dispute relating to the industrial dispute arising out of dismissal from service of the appellant by his employer under Section 10(1) of the Industrial Disputes Act to the appropriate Industrial Tribunal.
3. It appears that the Central Government in refusing to refer the dispute to the Industrial Tribunal has indicated the reasons for such refusal and the substance of such reasons is that after holding a proper departmental enquiry the order of dismissal was passed against the appellant and the action of the management in dismissing the workman from service was based on the findings made in the said enquiry wherein the employee was found guilty of misconduct and fraud and such finding did not appear to the Central Government as mala fide and/or unjustified.
4. Mr. Sengupta, learned Counsel appearing for the appellant, has submitted that after the amendment of the Industrial Disputes Act by incorporating Section 2A, an order of dismissal passed against a workman is an industrial dispute and there is no occasion to take any contrary view as to whether or not an industrial dispute has arisen in the facts and circumstances of the case.
5. Mr. Sengupta has further contended that under Section 10(1) of the Industrial Disputes Act, the Cental Government should have referred the matter to the appropriate Industrial Tribunal for adjudication because the Industrial Dispute in fact had existed because of the provisions of Section 2A and such dispute was required to be decided by the appropriate Tribunal. Mr. Sengupta has contended that under Section 12(5) of the Industrial Disputes Act, before making a reference under Section 10(1) which is an administrative function of the concerned Government, the reasonableness of the dispute is required to be gone into. But in doing so, the concerned Government should not embark upon the arena of adjudication which is purely quasi-judicial in nature. For the aforesaid purpose the Labour Court and the Industrial Tribunal have been set up under the Industrial Disputes Act and the qualification of the judge to preside over such Labour Court and Industrial Tribunal has been, indicated which will amply demonstrate that such presiding officer has sufficient experience as a Judge.
6. Mr. Sengupta has submitted that the Supreme Court in the case of Bombay Union of Journalists v. State of Bombay, reported in 1964-I-LLJ-351 has indicated that in considering the justification of reference of a dispute under Section 10, the concerned Government is not precluded from making a prima facie examination of the merits of the dispute while considering whether a reference was necessary or not. But at the same-time the supreme Court has indicated a note of caution that on a disputed question of fact, the appropriate Government cannot purport to reach a final conclusion, for, that again would be the province of Industrial Tribunals. Such view has been persistently followed by the supreme Court and in another decision of the supreme Court in M.P Irrigation Karmachari Sangha v. State of M.P. and Anr. reported in 1985-I L.L.J.-519 the Supreme Court after reffering the decision in the Bombay Union of Journalists’ case held in the said decision that when a reference is rejected on the specious plan that the Government cannot bear the additional burden, such decision constitutes the adjudication and thereby causes absorption of the power of the quasi-judicial tribunal. The reasons given by the state Government to decline a reference on such consideration, therefore, were revelent section of Industrial Disputes.
7. Mr. Sengupta has also referred to a decision of the Supreme Court made in the case of Ram AvtarSharma v. The State of Haryana, reported in 1981 (51) FLR page 71. The aforesaid decision was also cited before the learned trial Judge and was taken note of by the learned trial Judge in the impunged Judgment. Mr. Sengupta has, however, submitted that the learned trial Judge has failed to take note of the relevant portion of the judgment where the import of Section 2A and Section 11A in the matter of reference of an industrial dispute when a case of dismissal or removal is concerned, have been indicated by the Supreme Court.
8. It appears that Section 11A which was inserted in the Industrial Disputes Act, by the amending Act 45 of 1971 with effect from December, 1971, empowers the Industrial Tribunal to consider as to whether or not a punishment other than removal or dismissal was warranted in the facts and circumstances of the case even if the Tribunal entertains the view that the departmental enquiry was properly conducted and in law an order of dismissal could have been passed by the employer. It appears that the Supreme Court has proceeded on the footing that because of the amendment of the Industrial Disputes Act by incorporating Section 11A a workman may get the benefit of a lesser punishment in lieu of the punishment of dismissal or removal from service by the Industrial Tribunal even when the Tribunal comes to the finding that the order of dismissal was not vitiated by any unfair labour practice and such order was passed under the existing provisions of the standing order and the domestic enquiry had been conducted properly
9. Mr. Sengupta has submitted before us that since dismissal from service is an industrial dispute under Section 2A of the Industrial Disputes Act, a reference of such dispute to the Industrial Tribunal is necessary because it may ensure to the benefit of the concerned workman because the Tribunal even after coming to the finding that the order of dismissal was not otherwise vitiated, may hold that the case did not warrant the extreme punishment of dismissal from service and as such, such order of dismissal was not justified in the facts and circumstances of the case.
10. In our view, there is enough substance in the said contention of Mr. Sengupta and in view of the decision made in the case of Ram Avtar Sharma, (supra) there is no manner of doubt that the Central Government failed to appreciate the import of Section 2A and Section 11A in discharging the statutory obligation of considering the question of reference under Section 10(1) of the Industrial Disputes Act and the Central Government had clearly gone wrong in assessing the merits of the order which, in exercise of the administrative function under Section 10(1) should not have been done by the Central Government because such consideration really lay in the realm of quasi-judicial adjudication.
11. We, therefore, allow the appeal, set aside the order passed by the learned trial judge and direct the respondents to make a reference of the said dispute arising out of the order of dismiss: against the appellant before the Industrial Tribunal under Section 10(1) of the Industrial Disputes Act.
12. In the facts of the case, it is only desirable that the reference should be made as early/as possible, preferably within a month from the communication of this order to the appropriate forum.
13. There will be no order as to costs.
14. Let the certified copy of the order been as quickly as possible, if applied for.
Prabitra Kumar Banerjee, J.
15. I agree