1995 JTR(SC) 1315
1996 AIR(SC) 1007 ; 1996 AIR(SCW) 485 ; 1996 32 ATC 847 ; 1996 1 CTC 169 ; 1996 88 FJR 279 ; 1996 73 FLR 955 ; 1995 9 JT 556 ; 1996 LIC 915 ; 1996 1 LLJ 879 ; 1996 1 LLN 439 ; 1996 1 Scale 9 ; 1996 2 SCC 66 ; 1996 SCC(L&S) 751 ; 1996 1 SCJ 301 ; 1995 Supp6 SCR 629 ; 1996 2 SCT 491 ; 1996 1 SLR 598 ; 1996 KHC 673 ; 1996 1 Supreme 211
1996(1) Supreme 211
SUPREME COURT OF INDIA
K. Ramaswamy and B.L. Hansaria, JJ.
Sultan Singh -Appellant
versus
State of Haryana & Anr. -Respondents
Civil Appeal No. 9719 of 1995
Decided on 12.12.1995
Counsel for the Parties :
For the Appellant : R.C. Kaushik, Adv.
For the Respondents : I.S. Goyal and Indu Malhotra, Advocates.
IMPORTANT POINT
Though no hearing is to be given to employer while State makes reference on second application of employee under Section 10 of I.D. Act, in the facts of this case no reference is ordered by the Govt.
Act Referred :INDUSTRIAL DISPUTES ACT : S.10(1), S.10, S.12(5)
(A) Industrial Disputes Act, 1947 Sections 10(1) and 12(5) Reference of industrial dispute Nature of order Whether the State Government is required to hear the employer before making a reference on a second representation Order of reference is an administrative order and not a quasi-judicial order No lis is involved; therefore, no need to issue notice to the employer or hear them before making or refusing a reference Section 12(5) requires recording of reasons only when the Government refuses to make a reference, not when it makes one. (Paras 3, 4 and 5)
(B) Administrative Action Subjective satisfaction The appropriate Government is entitled to determine if an industrial dispute exists or is apprehended based on material on record; such satisfaction is subjective. (Para 4)
Facts of the case:
The appellant, a former employee, was terminated from service and subsequently sought reinstatement. After an initial application for reference under Section 10 of the Act was rejected, the appellant made a second representation. While a Minister initially noted a direction to make a reference, the Labour Department later communicated that the Government did not consider it necessary to reconsider the previous decision. The High Court had previously held that the State was required to give notice to the employer before making a reference on a second application.
Findings of Court:
The court found that the High Court erred in concluding that notice to the employer was mandatory for a second application. However, as a matter of fact, the Government had ultimately declined to make the reference, meaning no dispute was actually referred to a tribunal.
Issues:
(1) Whether the State should hear the employer before making a reference on a second representation under Section 10 of the Act since it was rejected previously; and (2) whether an order of reference was actually made by the State Government.
Ratio Decidendi:
The order to refer a dispute is administrative, not quasi-judicial. Consequently, the principles of natural justice requiring a hearing do not apply. The Government is not mandated to record reasons for making a reference, only for refusing one under Section 12(5).
Result:
Appeal disposed of accordingly.
(A) Industrial Disputes Act, 1947 Sections 10(1) and 12(5) Reference of industrial dispute Nature of order Whether the State Government is required to hear the employer before making a reference on a second representation Order of reference is an administrative order and not a quasi-judicial order No lis is involved; therefore, no need to issue notice to the employer or hear them before making or refusing a reference Section 12(5) requires recording of reasons only when the Government refuses to make a reference, not when it makes one. (Paras 3, 4 and 5)
(B) Administrative Action Subjective satisfaction The appropriate Government is entitled to determine if an industrial dispute exists or is apprehended based on material on record; such satisfaction is subjective. (Para 4)
Facts of the case:
The appellant, a former employee, was terminated from service and subsequently sought reinstatement. After an initial application for reference under Section 10 of the Act was rejected, the appellant made a second representation. While a Minister initially noted a direction to make a reference, the Labour Department later communicated that the Government did not consider it necessary to reconsider the previous decision. The High Court had previously held that the State was required to give notice to the employer before making a reference on a second application.
Findings of Court:
The court found that the High Court erred in concluding that notice to the employer was mandatory for a second application. However, as a matter of fact, the Government had ultimately declined to make the reference, meaning no dispute was actually referred to a tribunal.
Issues:
(1) Whether the State should hear the employer before making a reference on a second representation under Section 10 of the Act since it was rejected previously; and (2) whether an order of reference was actually made by the State Government.
Ratio Decidendi:
The order to refer a dispute is administrative, not quasi-judicial. Consequently, the principles of natural justice requiring a hearing do not apply. The Government is not mandated to record reasons for making a reference, only for refusing one under Section 12(5).
Result:
Appeal disposed of accordingly.
ORDER
Two questions arise in this appeal, namely, (1) whether the State should hear the respondent/employer before making a reference on a second representation under Section 10 of Industrial Disputes Act, 1947 (for short, the Act ) since it was rejected on an earlier occasion; and (2) whether there is an order of reference by the State Government so as to entitle the appellant to have the dispute adjudicated by the tribunal.
2. The facts are not in dispute. Way back in 1955, the appellant had joined the respondents as a workmen (Khalasi). He was promoted on September 6, 1972 as a tape-reader. He was served with a charge-sheet on June 28, 1979 and his services were terminated on August 9, 1979. On June 30, 1981, he made a demand on the respondent/employer for reinstatement which was rejected. Thereafter, he made an application for reference under Section 10 of the Act to the State Government which was rejected by order dated October 20, 1981. The appellant again made a representation on March 25, 1982 and the Minister made a note on the representation directing to make a reference. However, since no communication was received by the appellant, he wrote a letter to the Labour Commissioner, Haryana on April 26, 1984 but to no avail. He then filed the writ petition. By order dated August 6, 1984 in CWP No. 2885/84, the High Court dismissed the writ petition.
3. The first question is whether the State should give a hearing to the employer before making a reference on second application, since on an earlier occasion, it was rejected. Section 10(1) of the Act provides that where an apropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing refer the dispute to named authorities. Section 12(5) of the Act postulates that on receipt and consideration of a report from the conciliation officer, if the Government is satisfied that there is a case for reference to the Board, Labour Court, Tribunal or National Tribunal, as the case may be, it may make such reference. Where the appropriate Government does not make such a reference it shall record reasons therefor and communicate to the parties concerned.
4. A conjoint reading, therefore, would yield to the conclusion that on making an application for reference, it would be open to the State Government to form an opinion whether industrial dispute exists or apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicate to the applicant. Nonetheless the order is only an administrative order and not a quasi-judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12 of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfactiion on the basis of the material on record. Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. Sub-section (5) of Section 12 of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.
5. The need for hearing is obviated, if it is considered on second occasion as even then if it makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore, it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference. Accodingly, we are of the view that the High Court was wholly wrong in its conclusion that before making reference on second application, it was incumbent upon the State Government to give notice to the employer and to give an opportunity to the employer and record reasons for making reference. The previous decision of that Court relied on in the case at hand was wrongly decided.
6. The second question is whether, as a fact, reference has been ordered by the Government. It is seen that on the earlier occasion admittedly reference was rejected on the ground that the appellant had settled the master with the employer. In the second application, the Minister made a note directing reference, but in the order communicate later to the appellant by the Labour Department, it was indicated that in view of the decision already taken, the Government did not consider it necessary to reconsider the decision already taken. In other words, they were of the opinion that there existed no industrial dispute. They declined to make reference under Section 10(1). Therefore, there is no reference, in fact, made to the appropriate Tribunal/Labour Court or Industrial Tribunal.
7. In these circumstances, we cannot give relief to the appellant, since there is no reference made by the Government. The appeal is disposed of accordingly. No costs.
Appeal disposed of accordingly.
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