P. Mallesha Vs. Union of India and Another

P. Mallesha vs Union of India and Another

Type Court Judgment Court Karnataka Decided Mar 19, 1998

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Citation: sooperkanoon.com/381081
Court: Karnataka High Court
Judge: Ashok Bhan and;Mohamed Anwar, JJ.
Decided On: Mar 19, 1998
Case Number: Writ Appeal No. 9744 of 1996
Subject: Labour and Industrial

Case Summary

AI-generated summary - not the official court judgment text.

- KARNATAKA CO-OPERATIVE SOCIETIES ACT (11 OF 1959) Section 2AA(4): [D.V. Shylendra Kumar, J] Director of Co-operative Audit Held, Director of Cooperative Audit is also an officer who comes within the scope of administration, supervision of Government under Section 2AA (4) of the Act. Sections 63, 2AA(4): [D.V. ...

Key legal issue: Labour and Industrial
Acts & sections: Industrial Disputes Act, 1947 - Sections 10(1); Constitution of India - Articles 226

Parties & Advocates

Appellant / Petitioner

P. Mallesha

Advocate Sri K. Subba Rao, Adv.

Respondent

Union of India and Another

Advocate Sri R. Gururajan, Adv.

Legal References

Acts: Industrial Disputes Act, 1947 - Sections 10(1); Constitution of India - Articles 226
Reported In: [1999(81)FLR324]; 1998(4)KarLJ418; (1999)IILLJ423Kant

Excerpt

- karnataka co-operative societies act (11 of 1959) section 2aa(4): [d.v. shylendra kumar, j] director of co-operative audit held, director of cooperative audit is also an officer who comes within the scope of administration, supervision of government under section 2aa (4) of the act. sections 63, 2aa(4): [d.v. shylendra kumar, j] power of director of co-operative audit to re-audit to correct earlier lapse held, director can act under section 63 (11) on becoming aware of some past irregularity or impropriety or whatever it is, if the government by a communication alerts statutory authority to take action in exercise of the power under section 63 (11). in case of exercise of such power, neither any mala fide can be attributed to statutory authority nor can it be said that the authority had acted in violation. director of cooperative audit is also an officer who comes within the scope of administration, supervision of government under section 2aa (4) of the act. manner of exercise of power cannot be made a ground to invite interference by court in exercise of its jurisdiction under articles 226 & 227 of constitution - in the circumstances, conciliation officer submitted a failure report. apart from that the writ petition was dismissed on the ground that the workman had failed to give any explanation for delay in approaching the authorities. it has been held time and again by the supreme court of india as well as the different high courts that the appropriate government cannot delve into the merits of the dispute and take upon itself the determination of the lis which is in the exclusive jurisdiction of the labour court/industrial tribunal. that would certainly be in excess of the power conferred by section 10. section 10 requires the appropriate government to be satisfied that an industrial dispute exists or is apprehended......the government performs an administrative act while either making or refusing to make a reference under section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. that would certainly be in excess of the power conferred by section 10. section 10 requires the appropriate government to be satisfied that an industrial dispute exists or is apprehended. this may permit the appropriate government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. every administrative determination must be based on grounds relevant and germane to the exercise of power. if the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. therefore, the court may not issue writ of mandamus, directing the government to make a reference but the court can after examining the reasons given by the appropriate government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the government to reconsider the matter'.4. the question regarding delay has not been considered by the government and the reference was not declined on the ground of delay. the additional point taken by the learned single judge regarding delay in making the petition under section 10 could not under the circumstances of the case be taken into account.5. for the reasons stated above, the order of the learned single judge is set aside, the appeal is accepted.6. the writ petition is allowed. a mandamus be issued to respondent 1 (appropriate government) to reconsider the matter afresh and pass appropriate orders in accordance with law keeping in view the observations made above.no costs.

Full Judgment

Ashok Bhan, J.

1. This appeal is directed against the order of the Single Judge confirming the action taken by the appropriate Government refusing to make reference to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') on the ground that the appellant-workman had not put in 240 days of service.

2. Appellant filed a petition with the appropriate Government for making a reference under Section 10 of the Act for referring the dispute between him and his employer to Labour Court for adjudication. Management in the conciliation proceeding before the concerned authority took the objection that the workman ceased to attend the office from February 1986 and that he has not put in 240 days of service. Conciliation Officer came to the conclusion that there was no material to show that the worker had put in 240 days of service. In the circumstances, Conciliation Officer submitted a failure report. Acting on the report, the appropriate Government came to the conclusion that there is no subsisting dispute to be referred as there was no evidence to show that the worker was qualified for any relief under the Industrial Disputes Act. The appellant filed a writ petition challenging the action of the respondents on the plea that the Government itself could not delve into the merits of the dispute which was the exclusive jurisdiction of the Labour Court. Learned Single Judge did not accept the contention of the appellant and rejected the writ petition. It was held that it is for the authorities to prima facie consider whether the claim made by the worker is true or not. The Court cannot interfere in the discretion of the authorities with its orders. Apart from that the writ petition was dismissed on the ground that the workman had failed to give any explanation for delay in approaching the authorities. The termination took place in 1986 and the dispute was raised by the workman in the year 1993-94.

3. The order of the learned Single Judge cannot be sustained. It has been held time and again by the Supreme Court of India as well as the different High Courts that the appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis which is in the exclusive jurisdiction of the Labour Court/Industrial Tribunal. Reference may be made to Ram Avtar Sharma and Others v State of Haryana and Another:

'If the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. Therefore, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter'.

4. The question regarding delay has not been considered by the Government and the reference was not declined on the ground of delay. The additional point taken by the learned Single Judge regarding delay in making the petition under Section 10 could not under the circumstances of the case be taken into account.

5. For the reasons stated above, the order of the learned Single Judge is set aside, the appeal is accepted.

6. The writ petition is allowed. A mandamus be issued to respondent 1 (appropriate Government) to reconsider the matter afresh and pass appropriate orders in accordance with law keeping in view the observations made above.

No costs.

Same Court & Year Karnataka · 1998 Same Parties P. Mallesha vs Union of India and Another Same Subject Labour and Industrial Same Judge Ashok Bhan and;Mohamed Anwar, JJ. Acts & Sections Industrial Disputes Act, 1947 - Sections 10(1); Constitution ...

Labour and Industrial