The discretion vested in the appropriate Government to decide whether to make a reference to the Labour Court and the scope of judicial review of such decisions.

JUDGMENT :

Jay Sengupta, J.

1. This is an application under Article 226 of the Constitution of India praying for direction upon the respondent authorities to pass an order in terms of Section 12(5) of the Industrial Disputes Act and for quashing the order dated 16.06.2022 passed by the Assistant Secretary (Labour), Andaman and Nicobar Administration.

2. Learned counsel appearing on behalf of the petitioner submitted as follows. The petitioner was working as a regular mazdoor in the Department of Forest, Andaman and Nicobar Islands. On 08.05.2015, the petitioner was dismissed from service. The order was affirmed by the Appellate Authority on 01.12.2015. Both the orders were challenged before the learned Central Administrative Tribunal which set aside the orders and remanded the matter back vide Order dated 14.06.2019. This Court thereafter affirmed the order of the Tribunal with certain modifications on 24.12.2019. On 17.07.2020, the Disciplinary Authority dismissed the petitioner from service by concluding the disciplinary proceeding. The appeal preferred by the writ petitioner was also dismissed on 19.01.2022 holding that there was no provision for such appeal. Thereafter, the petitioner filed an application before the Conciliation Officer, who rejected the application. Upon challenge, this Court set aside the order of the Conciliation Officer and directed the authorities to consider the representation of the petitioner afresh vide order dated 24.03.2022. The Conciliation Officer submitted a failure report before the Government on 27.04.2022. On 16.06.2022, the Assistant Secretary (Labour) refused to refer the matter to the Labour Court on the ground that the Disciplinary Authority followed the principles of natural justice and the punishment so imposed was proportionate. First, the Assistant Labour Commissioner could not refuse to refer the matter to the Labour Court, inter alia, as such authority could not scrutinize the issue judicially. Here, the decision was passed on reasons, which were given after entering into the merits of the case. Reference was made under section 10 of the Industrial Disputes Act and section 11(A) empowers the Labour Court or the Tribunal to adjudicate the issue relating to discharge of dismissal of an employee. Whether opportunity of hearing was given to the employee or not and whether the punishment was proportionate or not, could not be decided by the Assistant Labour Commissioner. In the decision reported at AIR 1985 SC 860, the Hon’ble Supreme Court held that allowing the Government to adjudicate the issue would render Sections 10 and 12(5) of the Industrial Disputes Act nugatory. A final decision on the demand could not be done by the Government. In the decision reported at 1985 (3) SCC 189, the Hon’ble Supreme Court held that if the Government was given the authority to refuse reference in cases of dismissal by holding that the Discipliner Authority had acted in accordance with law, Sections 10 and 11(A) would be meaningless. Reliance was also placed on the decision reported at AIR 1989 SC 1565, 1991(Suppl) 2 SCC 10, AIR 2002 SC 1724 and 2009 (11) SCC 609. In the decision reported at 1973(1) SCC 813, the Hon’ble Apex Court held that the Labour Court or the Tribunal had power under Section 11(A) to reappraise the evidence and examine the correctness of the finding arrive at in domestic enquiry. The decision relied by on behalf of the respondent authorities being the one reported at AIR 1960 SC 1223 was distinguishable in the present facts inasmuch as it did not relate to dismissal of an employee.

3. Learned counsel appearing on behalf of the respondent authorities submitted as follows. The petitioner had initially raised an objection as to the competence of the respondent no.2 to issue the impugned order. The respondent no.2 had filed an affidavit in July, 2022 pointing out that the decision of the respondent no.2 was duly ratified by the Labour Commissioner and the Secretary (Labour). The Sec