The main legal point established in the judgment is that the appropriate Government does not have the authority to modify a reference made under Section 10(1) of the Industrial Disputes Act.

JUDGMENT :

A.C. Lakshmanan, J.—Heard Mr. C.P. Sudhakara Prasad for the appellant, learned Government Pleader for respondents 1 and 2 and Mr. Ashok Shenoy for respondents 3 and 4.

2. Appellant is the petitioner in OP 8944/91 which was filed by him to call for the records leading to Ext. P7 and quashing the same and for a mandamus directing the Industrial Tribunal, Quilon to proceed with the adjudication of the issue referred under Ext. P3. A further prayer by way of mandamus seeking an order declaring that the Government have no power to interfere with the issue referred to in Ext. P3 while the adjudication proceedings are pending before the Industrial Tribunal.

3. The facts of the case are as follows: Appellant is a cashew exporter manufacturing cashew in his factory. The fourth respondent, Sarasamma Amma, was employed as a shelling worker in his factory at Mukhathala. On November 26, 1988, the fourth respondent refused to give attendance card to the watchman who was posted at the factory and talked in an indecent manner to the watchman and also to a clerk at that time. She also shouted with indecent words to the manager. A show cause notice was prepared on November 26, 1998. When it was attempted to be given to her, she did not receive it and went from the factory without permission. She did not turn up for work from November 28, 1988 onwards. Hence the show cause: notice dated November 26, 1988 and another show cause notice dated November 28, 1988 were sent to her by post. She sent replies to the show cause notices. An enquiry was conducted by an advocate, who submitted his report, Ext.P1. She was found guilty. On the basis of the findings of the enquiry officer and after following the procedure prescribed by law, the fourth respondent was dismissed from service on July 18, 1989. After the dismissal of the fourth respondent, the Government referred an industrial dispute at the instance of the third respondent-Union to the Industrial Tribunal by Ext. P3 Government Order dated September 25, 1989. The question referred for adjudication by Ext. P3 was "denial of employment to Sarasamma Amma, Shelling No. 58 of Mukhathala Cashew Factory with effect from November 26, 1988". Before the Tribunal, the union filed Ext. P4 statement to which Ext.P5 reply was filed by the appellant. In the reply, the appellant pointed out to the Tribunal that there was no denial of employment to the fourth respondent, but the fourth respondent abandoned the work assigned to her in the factory after creating an unpleasant situation. Proceedings before the Tribunal started on November 3, 1989. Thereafter, there were several postings of the case and the last of such positing was on July 18, 1991. The fourth respondent was examined in full regarding the dispute Ext.P3 referred for adjudication. Thereupon, respondents 3 and 4 seem to have approached the District Labour Officer and the Government for withdrawing Ext.P3 reference and making another reference for adjudication before the Tribunal. Thereafter, Government issued Ext.P7 order dated February 26, 1991 by which the reference made under Ext.P3 was modified as follows:

"Dismissal of Smt. Sarasamma Amma Shelling Worker, M.Abdul Rahiman Kunju Cashew Factory, Mukhathala."

Since the reference now made under Ext.P7 was different from the reference made earlier under Ext.P3, the appellant tiled the Original Petition contending that once a reference is made u/s 10 of the Industrial Disputes Act, 1947 (for short 'the Act'), that is necessarily to end by an award u/s 17-A of the Act and hence the modification of the reference of 'denial of employment' to that of 'dismissal from service' is without the authority of law. Respondents did not file counter affidavit in the case. The Original Petition was dismissed on May 22, 1998. The learned Judge held that denial of employment takes in its ambit dismissal also. In that view, the learned Judge has dismissed the Original Petition with a cost of Rs. 2,500/- to the advocate