G.S. Singhvi, J.
1. Though the facts are quite different, but a simple common question of law arises for determination in these two writ petitions, and therefore, notwithstanding that facts are different, I am deciding both these writ petitions by a common order.
2. The order Annexure-2, dated February 3, 1983 in Writ Petition No. 1533/83 and the order (Ex.8) dated March 1, 1985 in Writ Petition No. 1112/85 have been passed by the Government in Labour Department in exercise of its powers ; under Section 12(5) of the Industrial Disputes Act, 1947 (for short the Act of 1947).
3. In both these cases, the petitioners were employees of the Rajasthan State Road Transport Corporation. Both were charge-sheeted. Domestic enquiries were held and, on the basis of the evaluation of evidence made by the employer, namely, Rajasthan State Road Transport Corporation, orders were passed for their removal from service. In both the cases, workmen challenged the action of the management of the Corporation in imposing punishment of removal from service. On the basis of the demand raised by the employees, the conciliation proceedings were held. The usual result of conciliation proceedings was a failure report. While the petitioners insisted for their reinstatement in service, the management of the respondent Corporation took the stand that once the employees have been removed from service after holding regular domestic enquiry, there was no justification for their reinstatement in service. Now the stage was reached where the State Government in the Labour Department was required to apply its mind to the facts of the case and, after considering all the provisions of law, to take a decision, as to whether a reference be made to the competent Labour Court/Industrial Tribunal for adjudication of the dispute relating to the termination of the services of the workmen.
4. Both these orders however show that the officers of the Labour Department of the Government of Rajasthan, who are entrusted with the duty of taking a decision regarding reference of disputes between the employers, and employees are either wholly ignorant of the law laid down by the Apex Court or they do not apply their mind to the relevant provisions of law. In either case their actions or omissions have serious adverse impact on public interest. It is true that the power of the Government under Section 10 of 1947 Act is administrative in nature but nevertheless this power has to be exercised with due application of mind and after an objective consideration of the material which conies to the notice of the Government. The Government cannot arbitrarily pass order refusing to make a reference of an Industrial dispute. In course of taking a decision in such matters the Government cannot examine the merits of the dispute. It cannot also decide disputed questions of fact.
5. Unfortunately, despite several decisions of the Apex Court and of this Court as also of clear provisions of law, the authorities of the Labour Department passed cryptic orders refusing to make reference of the dispute. The only reason given for refusal of reference of the dispute in both the writ petitions is that the order of punishment has been passed by the competent authority on the basis of regular domestic enquiry and on the basis of which the charges have been found to be proved against the employees. There is a total non-application of mind by those who are entrusted with the statutory duty of application of mind. The manner in which the order has been passed leaves much to be desired. The impugned orders passed in these two cases show utter disregard of law and contempt for the pronouncement of the Apex Court.
6. In the matters relating to the dispute between the parties, which relate to termination of the service of workman by way of punishment, the Government cannot refuse to make a reference in any case after addition of Section 11A of 1947 Act by the amendment of 1971.
7. This provision has been inserted by the Parliament keeping in view the observations made by the Apex Court in different cases in regard to the scope and extent of the jurisdiction of the adjudicating authorities under the Act of 1947. Prior to this amendment, their Lordships of the Supreme Court had in number of cases held that the Labour Court or Tribunal or National Tribunal had the jurisdiction to interfere even with the quantum of punishment which an employer may have imposed on its employee. A look at Section 11A shows that, where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and if in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. The phrase 'or such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the case may require' gives wide power to the Labour Court, Tribunal or National Tribunal to substitute the punishment which may have been awarded to an employee by its employer. Even in cases, where the Labour Court, Tribunal or National Tribunal records a finding that the domestic enquiry held by the employer is fair and in accordance with the principles of natural justice, the adjudicating authorities are now vested with the statutory power to award lesser punishment.
8. There is yet another aspect of the matter which deserves to be noticed. This Court as well as the Supreme Court have, time and again held that, in cases where an employee comes within the definition of the term 'workman' under Section 2(s) of 1947 Act, he cannot directly approach the High Court for vindication of his rights in view of the fact that a more effective alternative remedy of getting relief by means of adjudication under the Act of 1947 is available. While laying down this principle the Courts have been very much conscious of the fact that statutory power is available to the adjudicating authorities under the Act of 1947 to substitute the punishment which may have been awarded by the employer while this Court or the Apex Court interferes with the quantum of punishment in very rare cases.
9. When this has been the trend of the judicial decisions and Section-11A has been inserted by the legislative amendment, there could be no justification whatsoever for the authorities of the Labour Department to decline to make a reference in case where the dispute relates to termination of service by way of punishment. In such cases, no discretion is left to the authorities of the Labour Department. It is of necessity obliged to make a reference to the competent authority. In no circumstances, the Government can decide either on the question of fairness of enquiry or on the question of quantum of punishment, whether an enquiry has been held in accordance with law, if any, applicable in respect of the relationship of master and servant between the employer and employee or whether the principles of natural justice have been complied with, or all questions of fact which are required to be determined on the basis of evidence. What are the circumstances which warrant a particular amount of punishment, also largely depends on evidence which is produced by the parties before an adjudicating authority. The Government while taking decision under Section 12(5) read with Section 10(1) of 1947 Act discharges an administrative function, it cannot take upon itself the task of deciding the controversial and disputed questions of fact affecting merits of the case between the parties.
10. In Indiraj Singh v. State of Rajasthan, 1990 II CLR 31, N.C. Sharma J. referred to several decisions of the Supreme Court in regard to the power of the Government on the question of reference of disputes and then proceeded to observe:
'As would appear from the decision of their Lordships of the Supreme Court in Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. reported in (1989 -II-LLJ-558) that it is well settled that while exercising powers under Section 10(1) of the Industrial Disputes Act, 1947, the function of the appropriate Government is an administrative function and not judicial or quasi- judicial function, the State Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. It is true that in considering the question of making a reference under Section 10(1) the State Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended. The formation of opinion as to whether an industrial dispute exists or is apprehended is not the same thing as to adjudicate the dispute itself on its merits.'
11. This summary of the principles of law made by Shri N.C. Sharma, J. does not require further elucidation.
12. These writ petitions were filed before the Court in the year 1984 and 1985. Unfortunately, they have remained pending for a period of 8 years and 7 years respectively. As I have found, the orders passed by the Government in both these cases not only suffer from error of jurisdiction, but are patently illegal. The Government will now be obliged to make a reference of dispute to the competent Labour Court or Tribunal. If, ultimately the Labour Court or the Tribunal comes to the conclusion that the enquiry held against either of the petitioners was not in conformity with the provisions of law or the principles of natural justice, the Labour Court or the Tribunal may have to record the evidence and may have given an opportunity to the employees to lead evidence to disprove the charges. Then the punishment, if any, awarded to the workman will operate prospectively. Even if the Labour Court or Tribunal finds that the enquiry has not been held in accordance with law or has been held against the principles of natural justice, it may, in exercise of its judicious discretion, not uphold the punishment of the employees. In that event, the Labour Court or the Tribunal may have to make an award for compensation or in respect of wages. Who is to bear the burden? Only the respondent Corporation will have to bear this burden of payment of wages or any amount of compensation which may be awarded by the Labour Court or the Tribunal. The Corporation runs on the public fund. This money is provided by the public at large. Thus, as I have said earlier, the utter incompetence of the officers who are entrusted with the task of deciding the question, as to whether a dispute should be referred or not, has resulted in serious injury to the public interest.
13. Before parting with the case, I may observe that the Government should post such officers in Labour Department who have in-depth knowledge of industrial legislation and also arrange for their regular refresher course, so that they may keep themselves abreast with latest development of law. That would not only be in interest of Government but in larger public interest and would be conducive to expeditious disposal of disputes between employers and employees.
14. In the result, both these writ petitions succeed and are hereby allowed. The respondent No. 1 is directed to make a reference of dispute relating to the termination of service of each of the petitioners within a period of 15 days of the submission of the certified copy of this order. Each of the petitioners shall get costs of Rs. 500/-from respondent No. 1.