The State Government cannot refuse to refer a dispute to adjudication in cases where a workman has been dismissed or discharged from service for misconduct and an industrial dispute raised on that account, as Section 11-A of the Industrial Disputes Act, 1947, has impliedly taken away the discretion of the State Government to refuse to make a reference.

N. K. Sodhi, J.

1. Ramphal-petitioner (for short, the workman) was employed as a welder-cum-fitter with respondent 2 since January 1, 1983 and his monthly salary is stated to be Rs.1875/-. The management alleged that the vorkman was highly irregular in attending to his duties and the record of his attendance for the past three years with effect from December 16, 1992 was rather ] poor. He is said to have worked for 171 days in the year 1991, for 73-1/2 days during the year 1991-1992 and for only 64 days till December 16, 1992 and that in spite of several warnings he did not improve. The management is stated to have served him with a charge sheet and after holding a domestic enquiry in which he was found guilty of being a habitual absentee his services were terminated on January 14, 1993. This termination gave rise to an industrial dis-pute and the workman served the management with a demand notice under Sec.2 (A) of the Industrial Dispute Act, 1947 (hereinafter called the Act ). The dispute between the parties was taken up for conciliation by the Conciliation Officer. These proceedings proved abortive and the Conciliation Officer must have sent his failure report to the State Government. The State Government then in the exercise of its powers under Sec.10 (1) of the Act declined to refer; the dispute for adjudication. The communication dated September 16, 1993 addressed by the State Government to the petitioner in this regard as translated in English would read as under:-

"on the subject cited above, you are informed that the Government does not consider your case fit for adjudication by the Labour Court as it has come to its notice that you were in the habit of remaining absent because of which your services have been terminated after enquiry". It is this communication that has been impugned in the present petition filed by the work- man under Article 226 of the Constitution.

2 Learned counsel for the petitioner while challenging the impugned order submitted that the State Government cannot itself adjudicate upon the merits of the charge that was levelled by the management against the workman and there-upon decline to refer the dispute to the Labour Court. It was further contended that even if the charge against the workman stood proved and the domestic enquiry conducted by the management is taken to be fair and proper, it was open to the workman to have the matter re- examined by the Labour Court and get the punishment reduced under Sec.11a of the Act. This, according to the learned counsel, could happen only if the State Government had made a reference.

3. Learned Counsel for the management, on the other hand, contended that it was always open to the State Government to prima facie look into the dispute sought to be raised by the workman and the Government in its discretion could reject the same as the Government is not expected to refer all disputes that are raised by the workmen.

4. We have heard counsel for the parties at length and find merit in the contentions raised on behalf of the petitioner. The present is a case where the management charge sheeted the workman and after holding a domestic enquiry found him guilty of the charges and as a consequence of those findings, the workman was dismissed from service. The law as it stood prior to the introduction of Sec.11a of the Act was that where the employer had dismissed the workman on charges of misconduct proved in a domestic enquiry, the Labour Court or the Industrial Tribunal on a reference made to it could only examine the validity and fairness of the enquiry held by the employer and whether the findings of misconduct arrived at in the domestic enquiry found support from the evidence led by the parties in that enquiry. The adjudicating authority could not, however, re-appraise the evidence led at the domestic enquiry and come to a conclusion different from the one arrived at in such an enquiry. Again, the adjudicating authority could not interfere with the qu