The State Government cannot usurp the functions of an adjudicating authority and must refer the dispute for adjudication under section 10(1) of the Industrial Disputes Act. The applicability of section 11-A allows the workman to plead before the Labour Court if a reference had been made.

N.K.Sodhi, J.

1. What is challenged in this petition under Article 226 of the Constitution is the communication dated September 9, 1993 received by the petitioner from the Joint Secretary, Government of Haryana, Labour Department, informing him that the industrial dispute sought to be raised by him was not being referred for adjudication. The petitioner was also informed that on an enquiry made by the State Government it was revealed that his services had been terminated for misconduct which stood proved in a domestic enquiry conducted by his employer and, therefore, the termination was valid.

2. It is common case of the parties that the services of the petitioner-workman were terminated on account of misconduct and the employer claims to have held a domestic enquiry in which the charges levelled against the workman were proved.

3. After hearing counsel for the parties, I am of the opinion that the State Government has transgressed its jurisdiction while exercising its powers under section 10(1) of the Industrial Disputes Act, 1947 (for short, the Act), while declining to make a reference it has virtually adjudicated upon the dispute and decided the merits of the case by holding that his services had been rightly terminated after a domestic enquiry. By doing so, the State Government has usurped the functions of the adjudicating authority which it could not do while exercising its powers under section 10(1) of the Act Even otherwise, this is a case where the provisions of section 11-A of the Act would come into play and it is open to the workman to plead before the Labour Court that the enquiry held by the management was not fair and proper and that the punishment of dismissal awarded was disproportionate to the proved charges. The workman could avail this opportunity only if a reference had been made by the State Government. This matter has been examined in two Division Bench judgments of this Court in Annapurana Aggarwal v. State of Haryana, C. W. P. No. 7827 of 1994 decided on 8.9.1994 and in Ramphal v. State of Haryana, 2 (1995-1) 109 PL R. 485 decided on 14.12.1994 and it has been held that in cases in which section 11-A of the Act is applicable the State Government has no option but to refer the dispute for adjudication to an appropriate authority under section 10(1) of the Act. It has also been held in these decisions that the State Government cannot usurp the functions of an adjudicating authority while exercising its powers under section 10 of the Act.

4. In the result, the writ petition is allowed and the impugned order of the Stale Government declining to make the reference quashed. The State Government is directed to refer the dispute for adjudication to an appropriate authority within one month from the date of receipt of a copy of this order. Parties are left to bear their own costs.