The appropriate government's discretion to refuse a reference to an Industrial Tribunal under Section 12 of the Industrial Disputes Act, 1947, is not subject to judicial review if the decision is based on a prima facie examination of the facts and the government finds the claim to be patently frivolous or the facts glaringly against the workman.

S.K.Jha and R.P.Mandal JJ.

1. In this application under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a writ in the nature of mandamus and/or any other appropriate writ, direction or order commanding the respondents to make reference in the matter involved in this case under the provisions of Sec.12 of the Industrial Disputes Act, 1947 , (hereinafter referred to as the Act).

2. The petitioner was appointed in the Bata Shoe Company (India) Limited as Air Pressing on permanent basis. According to his case, he fell ill on 5th May, 1972, and was adviced medical treatment and rest from the 5th May, 1972, and after recovering from illness on the 11th August, 1972, Dr. A.K. Roy, Insurance Medical Officer, granted a medical certificate in support of his illness and by the same certificate the petitioner was found fit to resume his duty from the 12th August, 1972. It has further been alleged in the petition that on the 5th May, 1972, the petitioner informed the employer Company about his illness along with a medical certificate and, accordingly, the Company issued a card known as B.S.I. Leave Control". On the 12th August, 1972, the petitioner alleges, he went to the Company for resuming his duty but the Personnel Officer of the Company (respondent No. 3) pushed him out saying that he had absented from duty with effect from the 11th May, 1972, without obtaining any leave. The petitioner was further informed by respondent No. 3 that he had been discharged from his service with effect from the 11th May, 1972. This fact, however, is controverted on behalf of the employer and his actual date of discharge from service has been as effective from the 10th August, 1972, and not, the 11th May, 1972. That, however, is of no consequence. The petitioner further states that on the 17th August, l972, after becoming helpless in the matter, wrote a letter to the respondent No. 2, the Labour Commissioner of the State Government, raising the grievance of illegal discharge. Subsequently, on the 11th November, 1972, the 9th April, 1973, and on the other several dates the petitioner wrote letters to the respondents for their kind consideration in the matter of petitioners employment, but respondent No. 2, the Labour Commissioner, did not do anything. On the 9th April, 1973, the petitioner submitted a petition before the Manager of the Factory of the Company (respondent No. 4) submitting that a labour dispute was raised before the Conciliation Officer, and, in course of the conciliation proceedings the Management ensured that the petitioner would be reinstated and on such an assurance being given the petitioner went to resume his duty but he was asked to put in writing that he was absent from duty from the 5th May, 1972, to 11th August, 1972. The petitioner, however, requested the Company that he should be allowed to resume his duty without any condition. Subsequently, respondent No. 2, the Labour Commissioner, sent the matter to the Labour Officer, who has not been made a party in his writ application, for deciding the matter of the petitioner. The matter with regard to his reinstatement became a protracted one and ultimately his claim for the matter being referred to an Industrial Tribunal or Labour Court was refused. The petitioner then moved this Court in C.W.J.C. No. 2753 of 1976, which was ultimately disposed of on the 6th March, 1979. A Bench of this Court remanded the case to the Labour Commissioner and the State Government for passing a fresh order after hearing the petitioner and giving reasons for not referring the matter under Sec.12 of the Act.

3. The petitioner and the management were subsequently heard and the matter was reconsidered threadbare by the State Government. Ultimately, the State Government (respondent No. 1) refused to make any reference under Sec.10 read with Sec.12 of the Act. Reasons were given in the order refusing to make a reference. That is the impugned order which is inc