Judgment:
P.C. Naik, J.
1. Refusal on the part of the Government of Orissa in the Labour and Employment Department to refer a dispute for adjudication vide order dated September 21, 1996, is the subject-matter of challenge in this writ application.
2. The facts involved in this writ application lie in a narrow compass. According to the petitioner, they were engaged as nominal muster roll employees under the Executive Engineer, Parajanga Canal Division, Dhenkanal (opposite party No. 2 herein) on different dates in 1981 and continued as such till the year 1990 when they were illegally terminated in utter disregard to the provisions contained in the Industrial Disputes Act, 1947 (in short, 'the Act'). Aggrieved therewith, the petitioners had submitted a number of representations to their employer for reinstatement. Their personal approaches having failed to bring about any result, they lodged a petition before the District Labour Officer, Dhenkanal ventilating their grievance. The record indicates that the matter was taken up for conciliation by the District Labour Officer, Dhenkanal. As no settlement could be arrived at between the parties therein, the conciliation proceedings were closed and a failure report under Section 12(4) of the Act was submitted to the Government. The State Government on a consideration thereof, declined to make a reference by the impugned order which has brought the petitioners to this Court for relief.
3. A counter has been filed opposing the writ application. It is the case of opposite party No. 2 that the petitioners were not regular employees, but were working periodically on daily wage basis as and when their services were required and that the petitioners were not retrenched nor was there any order retrenching them from service. On the contrary, they remained absent from work for a long spell and as they did not report to work, the question of allotting them any work did not arise. It is also the case of said opposite party that there was no substantive post lying vacant against which the petitioners could be appointed and that when some of the petitioners made an approach, they were clearly told that there was no merit in their grievance as they were not regular and continuous workers under opposite party No. 2. Accordingly, the prayer is for dismissal of the writ application as no case for making a reference was made out.
4. The order impugned indicates that the Government, has declined to make a reference because (i) the workmen had not worked for 240 days of continuous service during the period of twelve months preceding their termination of service, and (ii) the dispute is belated. Thus, what is to be seen is, whether or not this order can be sustained.
5. It cannot be denied that Sub-section (5) of Section 12 of the Act invests the appropriate Government with a power to make or not to make a reference depending upon its satisfaction. The action of the Government is administrative in nature and not judicial or quasi-judicial. In a given case, when it declines to make a reference, it has to record some reasons therefor, but these reasons cannot prejudge the dispute or adjudicate the same. In other words, though the appropriate Government is to form an opinion as to whether or not an industrial dispute exists or is apprehended, it cannot adjudicate the dispute itself on merits, for that is the function of the authority to which a dispute is referred in terms of Sub-section (1) Section 10 of the Act. Thus, in a given case, if the order of the appropriate Government refusing to make a reference amounts to adjudication, that order, as of necessity, will have to be set aside. This is the settled position of law. In the case at hand, the question of decision before the Government under Sub-section (5) of Section 12 was to determine as to whether an industrial dispute did exist or was apprehended. Naturally, in order to determine this, the appropriate Government was obliged to consider, prima facie, the merits of the dispute because unless it looked into the same along with the conciliation report, it could not come to conclusion as to whether or not a case for reference was made out. But, after considering the same, it had to restrain itself from making any further adjudication touching merits thereof.
6. In M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh (1985-I-LLJ-519) (SC) it has been observed at p. 522:
'......... while conceding a very limitedjurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute exists or is apprehended and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi-judicial Tribunal by an administrative authority, namely the Appropriate Government.
XX XX XX 7. There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference, Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory.'
Thus, it follows that the jurisdiction of the appropriate Government is confined to its satisfaction as to whether or not any industrial dispute exists or is apprehended, but it does not extend to its forming an opinion about the genuineness or otherwise of the dispute.
7. When we look to the impugned order in the context of what has been stated above, we find that the State Government has refused to refer the dispute not because in its view no dispute did exist or was apprehended, but because the petitioners had not completed 240 days continuous service during the period of twelve months proceeding their termination of service. Thus, it implies that the State Government was conscious of the fact that the petitioners were terminated from service but declined to refer because in its view they would not be entitled to any benefit under Section 25F of the Act, as they had not put in the continuous service as provided for under Section 25B of the Act. Thus, it is clear that the State Government has adjudicated upon the claim of the petitioners on merits which it could not have.
8. The powers to refer or not to refer a dispute, vests with the appropriate Government under the Act and the decision to be taken thereon, is purely administrative in nature. If the administrative action is found to be bad, the appropriate course would be to quash it with a direction to the authority concerned to re-consider the matter in accordance with law. In the instant case, therefore, having held that the order refusing to make a reference is bad in law, the appropriate remedy would be to quash the same with a direction to the Government to re-consider the matter in its proper perspective in accordance with law. It is no doubt true that in Sankari Cement Alai Thozhilar Munnetra Sangam v. Government of Tamil Nadu (1983-I-LLJ-460) (SC) and Nirmal Singh v. State of Punjab (1984-II-LLJ-396) (SC), the Apex Court had directed the State Government to make a reference of the dispute for adjudication within a stipulated period. But, it ought not to be forgotten that the Apex Court under Article 142 of the Constitution of India has the power to pass appropriate orders to do complete justice between the parties. However, there is no provision akin to Article 142 of the Constitution investing similar powers with the High Court. Thus, in the case at hand, the appropriate course would be to quash the impugned order with a direction to opposite party No. 2 to re-consider the matter and pass fresh order in exercise of powers under Sub-section (5) of Section 12 of the Act within a period of twelve weeks from the date of communication of our order. We order accordingly.
9. The writ application is allowed to the extent indicated above. There shall, however, be no order as to costs.
P.K. Mohanty, J.
10. I agree.