STATE OF BOMBAY V K P KRISHNAN

STATE OF BOMBAY V K P KRISHNAN

(1961) 1 SCR 227 : AIR 1960 SC 1223

FACT

A dispute arose between Firestone Tyre and Rubber Co. Ltd and its workmen, wherein the workmen(respondents) raised a few demands to the company.

The Conciliation officer examined the demands made by the respondents and admitted only two demands into conciliation, they were in respect of the classification of certain employees and the bonus for the year 1952-53.

The conciliation proceedings proved infructuous, and the conciliator made his failure report under Section 12(4) of the act. On receipt of this report, the government of Bombay came to the conclusion that the dispute in question should not be referred to an Industrial Tribunal for its adjudication. The reason so communicated by the Government as required under section 12(5) was “that the workmen resorted to go slow during the year 1952-53”.

A Writ of Mandamus was filed by the respondents before the Bombay High court against this order of the government calling upon it to refer the said dispute for industrial adjudication under Section 10(1) and Section 12(5) of the Act.

 

HIGH COURT

Reason given by the appellant(State of Maharashtra) for refusing to make the reference was very extraneous.

Mandamus was issued against the appellant to reconsider the question of making or refusing to make a reference under Section 12(5) ignoring the fact that there was a slow-down and taking into account only such reasons as are germane to the question of determining whether a reference should or should not be made.

CONTENTIONS

Respondent

Despite the go slow strategy adopted by them for some months the total production for the said period was very favourable when compared with the previous year and hence the profit made by the company for that relevant year justifies their claim for an additional bonus.

Appellant

The respondents adopted go-slow strategy during the relevant year the industrial dispute raised by them in regard to bonus as well as classification was not to be referred for adjudication under Section 12(5).

ISSUE

(1)The reference to be made by the government would be as under Section 12(5) or under Section 10(1)?

(2)While acting under Section 12(5),if the Appropriate Government is bound to make its decision only on the basis of the report made by the Conciliation Officer made under Section 12(4)?

(3) Whether the word ”may” in the first part of Section 12(5) must be construed to mean “shall”?

(4)If the government was correct in considering the “slow down” tactic as a relevant factor in not referring the dispute?

 

HELD

• When section 12(5) provides that the appropriate government may make such reference it does not mean that this provision is intended to confer a power to make reference as such. Such a power to the government has been conferred by Section 10(1). So under section 12(5) if the appropriate government comes to the conclusion that a case for reference has been made, such reference must be made under section 10(1). It would not be reasonable to hold that Section 12(5) by itself and independently of Section 10(1) confers power on the appropriate Government to make a reference.

• The words of Section 12(5) do not suggest that the report is the only material on which Government must base its conclusion. It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice, and it is in the light of all these relevant facts that it has to come to its decision whether a reference should be made or not. A discretion to consider all relevant facts which is conferred on the Government by Section 10(1) could be exercised by the Government even in dealing with cases under Section 12(5) provided of course the said discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances, and the second part of Section 12(5) is complied with.

• In order to understand this issue the Court gave an example of Section 13(4).Here it was considered that if a reference has to be made in regard to a dispute referred to a Board under Section 13, Section 10(1) would apply, and there would be no question of importing any compulsion or obligation on the Government to make a reference. Now, if that be the true position under the relevant provisions of Section 13 it would be difficult to accept the argument that a prior stage when Government is acting under Section 12(5) it is obligatory on it to make a reference as contended by the respondent.It was held that these arguments by the respondent and the appellant are just academic in nature and both of them lead to the same conclusion. It is for the government to consider all the relevant and germane facts ,and if in refusing to make a reference Government is influenced by reasons which are wholly extraneous or irrelevant or which are not germane then its decision may be open to challenge in a court of law.

• It was held that the High Court was correct in coming to the conclusion that the impugned decision of the Government was wholly punitive in character and must in the circumstances be treated as based on a consideration which is not germane and is extraneous.

The Act has been passed in order to make provision for the investigation and settlement of industrial disputes, and if it appears that in cases falling under Section 12(5) the investigation and settlement of any industrial dispute is prevented by the appropriate Government by refusing to make a reference on grounds which are wholly irrelevant and extraneous a case for the issue of a writ of mandamus is clearly established.