ORDER
Krishna Moorthy, J.
1. The petitioner, a Society is challenging the order Annexure 'A' dated 11-5-1994 passed by the second respondent Labour Court refusing to consider an issue as a preliminary issue in dispute between the petitioner and the first respondent.
2. The first respondent was working as Secretary of the Petitioner-Society and he was dismissed from Service retrospectively from 1-8-1973 for an act of misconduct involving misappropriation of the Society's funds. The first Respondent gave a representation to the Assistant Registrar of Co-operative Societies on 25-6-1974. As the Assistant Registrar could not direct the Society to withdraw the order of dismissal, the appellant filed a Suit before the Munsiff Court, Sirsi, in O. S. 4/75. On 31-10-1977, the plaint was returned for being presented to a proper Court. Thereafter, the first respondent moved the Assistant Registrar of Co-operative Societies against the order of dismissal. That dispute was numbered and by an order dated 8-3-1978, the Assistant registrar appointed the Sale Officer as an Arbitrator and requested him to dispose of the applicants, dispute within a month. Even after many years, he matter was not disposed of an the first respondent, accordingly, withdrew the said dispute from the Assistant Registrar.
3. Thereafter, the first respondent-workman raised an industrial dispute before the Labour and Conciliation Officer on 16-4-1984. The respondent did not co-operate with the Conciliation Officer and the Conciliation Officer sent his factual report on 30-7-1985. The first respondent also represented to the Secretary, Government of Karnataka, on 29-8-1985 but the Government issued an order dated 19-9-1985 refusing to refer the industrial dispute for adjudication on the ground of laches. Thereafter, the first respondent filed a petition in the form of Appeal petition evidenced by Annexure 'R-3' before the Government requesting them to re-consider the question and to make a reference of dispute to the concerned Labour Court. So far no orders have bene passed on the application filed by the first respondent workman. While the above application was pending before the Government, by the Karnataka Industrial Dispute Amendment Act 5.88, sub-section 4-A was added to Section 10 of the Industrial Disputes Act, 1947, by which, a right was given to the industrial workman to apply to the Labour Court for adjudication of a dispute falling within the scope of Section 2-A and that the Court shall dispose of such application in the same manner as a dispute referred under sub-section (1). Accordingly, the first respondent filed an application before the Labour Court, Hubli, to decide the question as to whether the Management were justified in dismissing the petitioner with effect from 1-8-1973.
4. Various issues were raised in the case and one of the issues raised in the case is to the following effect :
'Where the petition is maintainable in view of earlier endorsement issued by the appropriate Government rejecting the dispute from making reference.'
5. The Management filed I. A. I. for an order from the Labour Court to decide this issue as a preliminary issue. By Annexure 'A' order dated 11-5-1994, the Labour Court rejected that application as it was of the opinion that the above issue cannot be tried independently as a preliminary issue and that all the issues have to be considered together. It is this order of the Labour Court that is challenged in this Writ Petition.
6. The learned Counsel for the petitioner contended that the issue in question which he has raised before the Tribunal goes to the root of the matter affecting the very jurisdiction of the Industrial tribunal and that it has to be decided as a preliminary issue. In support of his contention, he relied on a Division Bench Decision of his Court in Management of Rangaswamy & Co. v. D. V. Jagadish and Anr. 1990 II CLR 56 and that the dictum laid down by the Supreme Court in D. P. Maheshwari v. Delhi Administration AIR 1984 SC 153 had no application. On he other hand, learned Counsel for the respondent contended that the order of the Labour Court is perfectly valid and right in the light of Maheshwari's case mentioned above. But after some arguments, both counsel for the petitioner-Management as also the Counsel for the first respondent-workman unconditionally agreed before me that this court may decide the preliminary issue by itself without sending back that issue to the Labour Court for decision. As both Counsel have agreed for this Court deciding the preliminary issue regarding main-tenability of the application by this court itself. I need not express any opinion as to whether the Labour Court was justified in refusing to hear the above issue as a preliminary issue. Accordingly, I express no opinion on the question, but, proceeding to decide the preliminary issue as such by me.
7. As stated earlier, the application was filed by the first respondent workman before the Labour Court under Section 10(4-A) of the Industrial Disputes act as amended by the Karnataka Amendment Act. It is seen in the claim statement and the objection statement filed by the first respondent that he has been pursuing his right before one forum or the other from 1974 onwards, viz., the date of dismissal. It is true that in 1983, he raised a dispute and by Annexure 'C' order dated 19-9-1985, the Government refused to refer the dispute on the ground that there is no prima facie case and there is inordinate delay. Dissatisfied with the rejection, the first respondent workman again filed an application before the government evidenced by Exhibit R. 3 dated 14-11-1985 to re-consider the matter and refer the dispute to the Labour Court. Admittedly, no orders have been passed on this petition and it is while this matter was pending before the government that sub-section 4(A) to Section 10 was incorporated in the Industrial Dispute Act by the Karnataka Amendment Act. It is by virtue of this provision, that the first respondent filed an application before the Labour Court. The preliminary objection raised by the Management is that in the light of the fact that the Government refused to refer the dispute to a Labour Court in exercise of its power under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, an application under Section 10(4-A) is not maintainable. It is on this basis that the Tribunal raised an issue to the following effect :
'Whether the petition is maintainable in view of the earlier endorsement issued by the appropriate Government rejecting the dispute from making reference along with the other issues.'
8. Now I shall consider this issue. Section 10(4-A) of the Industrial Disputes Act as amended by the Karnataka Amendment Act reads as follows :
'Section 10(4-A) : Notwithstanding anything contained in Section 9C and in this Section, the case of a dispute falling within the scope of Section 2A, the individual workman concerned may, within six months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later, apply, in the prescribed manner, to the Labour Court for adjudication of the dispute and the Labour Court shall disposes of such application in the same manner as a dispute referred under sub-section (1).
NOTE : An application under sub-section (4-A) may be made even in respect of a dispute pending consideration of the Government for reference on the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987'.
9. The question to be decided is, as to whether the refusal of the Government to refer the dispute between the parties to the Labour Court is a ground for holding that an application under section 10(4-A) is not maintainable. For two reasons, I am of the view that the rejection by the Government to refer a dispute by itself will not be a ground for holding that an application under section 10(4-A) is not maintainable. It is an admitted fact that the application was filed by the first respondent before the Labour Court within the time prescribed under Section 10(4-A). The right to move the Labour Court under Section 10(4-A) in respect of a dispute falling under the scope of Section 2-A is given to the workman notwithstanding anything contained in that Section. In other words, the provisions contained in Section 10(4-A) shall have overriding effect over other provisions contained in Section 10. The refusal of the Reference earlier by the Government is by virtue of the provisions contained in Section 10(1) and in view of the non-obstinate clause contained in Section 10(4-A), the refusal to refer a dispute on an earlier occasion by the Government by itself will not be a bar for filing an application under Section 10(4-A). That right is given to the workman, de-hors any of the provisions contained in section 10. But the learned Counsel for the petitioner contended that non-obstinate clause contained in Section 10(4-A) will apply only to the provisions contained in Section 10 of the Industrial Disputes Act and cannot save the rejection of a Reference under cannot save the rejection of a Reference under Section 12(5) of the Act. But it is to be remembered that though section 12(5) of the Act also provides for making a Reference to a Labour Court or other authorities, the substantive provision under which a Reference has to be made in such circumstances in Section 10(1) and the power which the Government derives for making a Reference is under that Section. In State of Bombay and Anr. v. Krishnan (K. P.) and Ors. 1960 II LLJ 952 considering the scope of Sections 10 and 12(5), the Supreme Court observed as follows :
'In other words, the material provisions in Sub-sections (3) to (7) of Section 10(1) which are an integral part of the scheme of reference prescribed by Chapter III of the Act clearly indicate that even if the appropriate Government may be acting under Section 12(5), the reference must ultimately be made under Section 10(1). Incidentally it is not without significance that even in the petition made by the respondents in the present proceedings they have asked for a writ of mandamus calling upon the appellant to make a reference under Section 10(1) and 12(5).
Besides, even as a matter of construction, when Section 12(5) provides that the appropriate Government may make such reference, it does not mean that this provision is intended to confer a power to make reference as such. That power has already been conferred by Section 10(1); indeed Section 12(5) occurs in a chapter dealing with the procedure, powers and duties of the authorities under the Act; and it would be legitimate to hold that Section 12(5) which undoubtedly confers power on the appropriate Government to act in the manner specified by it, the power to make reference which it will exercise if it comes to the conclusion that a case for reference has been made, must be found in Section 10(1). In other words, when Section 12(5) says that the Government may make such reference, it really means if may make such reference under Section 10(1). Therefore, it would not be reasonable to hold that Section 12(5) by itself and independently of Section 10(1) confers power on the appropriate Government to make a reference.'
10. From the dictum of the Supreme Court quoted above, it is absolutely clear that the power to refer a dispute to a Labour Court including the power to refuse a Reference is exercised by the Government under Section 10(1) and not under Section 12(5). Section 12(5) by itself does not confer on Government power to refer or not to refer, but it is Section 10 which confers power on the Government. If that be so, when the provisions contained in Section 10(4-A) are notwithstanding anything contained in the other portions of the Section, the fact that a Reference was rejected on an earlier occasion is no bar to an application under Section 10(4-A) if the other conditions mentioned therein the satisfied.
11. Even otherwise, a mere refusal to refer a dispute to the Labour Court does not put an end to the Industrial Dispute as such and by the refusal to refer the dispute, the power of the Government to make a Reference is not exhausted. In appropriate cases, the Government is entitled to re-consider the matter and to make a Reference, it the Government feels that it is necessary in the interest of industrial peace. In other words, by the refusal to make a Reference, the industrial dispute does not come to an end. In M/s. Avon Services, Production agencies (P) Ltd. v. Industrial Tribunal, Haryana and Ors. : (1979)ILLJ1SC the Supreme Court held :
'Merely because the Government rejects a request for a reference or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist, nor could it be said to be a review of any judicial or quasi-judicial order or determination. The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate Government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, the appropriate Government does not lack power to do so under Section 10(1), nor is it precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference. The expression 'at any time' in Section 10(1) will clearly negative the contention that once the Government declines to make a reference under Section 10(1) in respect of the same dispute gets exhausted. Such a construction would denude a very vital power conferred on the Government in the interest of industrial peace and harmony and it need not be whittled down by interpretative process.'
12. Thus, it is clear that the mere fact that on earlier occasion, the request of the first respondent for making a Reference was rejected by the Government is no ground for holding that the industrial dispute has come to an end. The industrial dispute is very much in existence. Moreover, the application by the first respondent evidenced by Annexure-R2 was pending before the Government on the date when the Karnataka Amendment Act came into force and accordingly, the first respondent having satisfied the other conditions mentioned in Section 10(4-A) is entitled to maintain the application. I am even prepared to go to the extent of holding that the Note of Section 10(4-A) as introduced by the Karnataka Amendment Act would squarely apply to the facts of this case in view of the fact that a second application for a Reference was pending before the Government which the Government had jurisdiction to consider in the light of the dictum laid down by the Supreme Court in M/s. Avon's case (supra) mentioned above.
13. As I have already held that the application filed by the first respondent is maintainable. It is not necessary for me to go to into the other contentions raised by the parties in this case.
In the result, I hold the issue raised by the Industrial Tribunal to the effect 'whether the petition is maintainable in view of the earlier endorsement issued by the appropriate Government rejecting the dispute from making a reference' in favour of the first responded workman and direct the second respondent to dispose of the application by deciding all other issues as expeditiously as possible and at any rate, within a period of four months from the date of receipt of a copy of this order, taking into account the fact that the order or dismissal was passed in 1973.
14. Writ Petition is disposed of as above. There will be no order as to costs.