R.P. Vyas, J.
1. The present writ petition has been filed by the petitioner against the order dtd. 19.2.2001 (Annexure-3) by which the dispute raised by the petitioner was not referred to the Labour Court for adjudication be quashed and set aside.
2. Brief facts of the case are that the petitioner submitted an application before the Regional Labour Commissioner, Ajmer (Conciliation Officer) raising the grievance in respect of retrenchment and continuance of junior employees in the department ignoring his right protected by the principle of last come first go.
3. The petitioner was initially appointed under the office of General Manager, Telecommunications as Telegraph Messenger. His name was sponsored by the Employment Exchange, in the year, 1984 and after being interviewed by a Committee of 5 members, he was ordered to join the duties. The petitioner continuously served the telecom department from March, 1984 to August, 1984, when he was verbally retrenched from the services. The petitioner, in his application before the Regional Labour Commissioner, Ajmer, referred to a number of representations made by him against his illegal retrenchment. The petitioner has subsequently submitted that the Telecom Department placed a request for sponsorship of the names from the Employment Exchange in the years 1985, 1987 and 1997, but he was not intimated ignoring his right for consideration. The petitioner, vide communication dated 8.4.2001, submitted that Shri Younus Beg and Jaisingh who were appointed alongwith the petitioner are allowed to continue till date and Shri Younus Beg is holding the post of Phone Mechanic in the respondents department. The petitioner also placed on record, the order dated 15.3.84, whereby he alongwith six other persons were appointed as daily wages Mazdoor after their names being sponsored by the Employment Exchange. The conciliation proceedings failed and the Conciliation officer submitted failure report.
4. It is further averred in the writ petition that the appropriate government on receipt of failure report declined reference vide order dated 19.2.2001 not considering the petitioner's dispute fit for adjudication for the reason that workman/petitioner has not completed 240 days and as such no protection is available to him under the Industrial Dispute Act.
5. In this writ petition, the main submission of the learned Counsel for the petitioner is that once the failure report was received, it was obligatory on the part of the respondent No. 1 to refer the matter to the Labour Court for adjudication because the respondent No. 1 (Secretary, Ministry of Labour, New Delhi) had no power to decide the matter on merits and hence, the order dtd. 19.2.2001 passed by the appropriate Government should be quashed and set aside and this writ petition should be allowed.
6. Reply to the writ petition was filed by the respondent No. 3 and it has been submitted by the learned Counsel for the respondent No. 3 that the competent authority was required to see as to whether prima facie industrial disputes exists or not and since in the present case, the competent authority did not find any case in favour of the petitioner, therefore, the matter was not referred to the Labour Court and hence no interference be called for in the order dtd. 19.2.2001 and the present writ petition deserves to be dismissed.
7. Heard the learned Counsel for the parties.
8. A bare perusal of the order dtd. 19.2.2001 (Annex.3) reveals that the matter was not referred to the Labour Court for the reason that the petitioner had not completed 240 days and hence he is not eligible for protection under the ID Act.
9. The question which arises for consideration is whether, in the facts and circumstances of the present case, the order dtd. 19.2.2001 (Annex.3) passed by the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) on the above ground, can be sustained or not?
10. In the case of Bombay Union of Journalists and Ors. v. State of Bombay and Anr. reported in : (1964)ILLJ351SC , the main contention raised before the Apex Court was that the reasons given by the appropriate Government for refusing to make reference considering the merits of the dispute was not proper. In Bombay Union of Journalists' case (supra), the Hon'ble Supreme Court held that when the dispute raises question of law, then the appropriate Government should not reach a final decision on the said question of law because it lies within the domain of the Labour Court or the Industrial Tribunal.
11. The Hon'ble Supreme Court in the case of Ram Avtar Sharma v. State of Haryana reported in : (1985)IILLJ187SC has observed that though the Government can examine frivolousness of the demand in order to reach to a prima facie conclusion, it is not competent to assume quasi-judicial function of Tribunal by going into merits of the demand to decide whether or not to make a reference.
12. In the case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. reported in 1983(3) SCC 271, the Hon'ble Supreme Court held that refusal to make reference on the part of the appropriate Government was wholly unjustified. It had further held that such decision should not be based on merits of the dispute itself as the Government's function under Section 10(1) of the Act is purely an administrative function.
13. In the case of Dhanbad Colliery Karamchari Sangh v. Union of India and Ors. reported in : 1991ECR439(SC) , the Hon'ble Supreme Court has clearly held that the Government itself cannot decide the dispute.
14. Similarly, the Division Bench of this Court in the case of Bhika Ram v. State of Rajasthan reported in 2000 (3) RLR 548 has held as under:
'Industrial Dispute Act, 1947. Sections 10 and 25F Power of Govt. to refuse to make reference, limited Govt. has no jurisdiction to decide as to whether the workman completed 240 days or not and cannot refuse to make reference by concluding that workman has failed to prove that he had worked for 240 days in a calender year-it is only Labour Court or the Industrial Tribunal which is competent to decide whether there is any dispute or not and whether the retrenchment was right or wrong.
15. Similar view has been taken by this Court in the case of Umesh Kumar Soni v. State of Rajasthan and Anr. reported in 2005(2) RDD 252 (Raj.) = RLW 2005(3) 1936
16. Thus, from the law laid down in the above authorities, it is clear that the appropriate government is not entitled to adjudicate the dispute itself on merits as the Government's function under Section 10(1) of the Act of 1947 is purely administrative in nature.
17. In the present case, the impugned order dtd. 19.2.2001 clearly reveals that the appropriate Government had decided the matter on merits by holding that the petitioner had not completed 240 days of service. The question whether the petitioner has completed 240 days of service or not is a question of fact and the same needs to be decided by leading evidence which is in the sole domain of the Labour Court. That apart, the petitioner has also raised question of violation of provisions of Section 25F, 25G, and 25H of the Act of 1947 which cannot be decided by the appropriate Government and hence the order dtd. 19.2.2001 (Annex.3) cannot be sustained as it was passed without jurisdiction.
Accordingly, the present writ petition is allowed and the order dtd. 19.2.2001 (Annex.3) passed by the appropriate Government is quashed and set aside and the respondent No. 1 (Secretary, Ministry of Labour, Government of India, New Delhi) is directed to make reference under Section 10(1) of the Industrial Disputes Act, 1947 of the dispute raised by the petitioner to an appropriate Industrial Tribunal within one month from today.
No order as to costs.