K. SHANMUKHAM, J.:

1. The appellants are seven workmen whose services were terminated by the 3rd respondent, the Management of Lucas TVS Limited. In respect of such a dispute between the appellants on the one hand and the 3rd respondent on the other as regards the non-employment of the appellants, conciliation proceeding was held by the Labour Officer, Chingleput, and the said Officer submitted his failure report on 19.7.1979. However, the 1st respondent declined to refer the said dispute for adjudication, vide G.O.Ms. No.1650 dt. 11.10.1979. Aggrieved against such refusal by the Government to refer the industrial dispute for adjudication, the appellants came forward with W.P.No.350 of 1982 for the issue of a proper writ, order or direction, as the case may be, in particular, for the issue of a writ in the nature of mandamus directing the 1st respondent (Government of Tamil Nadu) to reconsider their order dt, 11.10.1979 (referred to supra) and as confirmed by the further order dt. 1.6.1981. The said matter came up for admission before Mr.Justice Nainar. Sunda-ram. But the learned Judge dismissed the writ petition in limine. Hence this appeal.

2. Before we refer to the contentions put forward on behalf of the workmen, it is essential to notice the grounds urged by them before the learned Judge. They can be gathered from the order appealed against. The first ground is that section 10(1) of the Industrial Disputes Act, 1947. (hereinafter referred to as the) lacks guidelines with reference to the exercise of the powers conferred on the appropriate: government. The second ground. is that when the order is passed under section 10(1) of thewhich involves grave consequences, the appellants ought to have been heard by the Government before the order is made in conformity with the principles of natural justice and as such procedure was not adhered to, the order should be held to be illegal and has to be set aside. The last ground is that the third respondent had acted discriminatorily against the appellants alone because when other workers who were also proceeded against by the Management in the departmental enquiry and were found guilty were reinstated the appellants alone were singled out and their services were terminated and that this vital aspect does not appear to have been noticed and considered by the Government.

3. Before us, additional points were also urged. The foremost point is that after the inclusion of section 2(A) and section 11(A) in the, there is no discretion vested in the government but to refer the industrial dispute for adjudication. In other words, according to the learned counsel for the appellants, the word may in section 10(1) of thehas to be read as shall in a case where the services of the workmen are terminated or retrenched or discharged. The learned counsel further pointed out the purpose of widening the jurisdiction of the Tribunal under section 11(A) is a clear pointer to the fact that the government has no discretion but to refer the matter for adjudication. His further contention is that though there was no amendment as such to section 10, yet the existence of these two provisions, namely, section 2(A) and section 11(A) which are intended to protect the interest of the workmen had really usurped the discretion that was vested with the government under section 10. The learned counsel further pointed out that the question whether the punishment of termination is disproportionate to the charges is not within the jurisdiction of the government but is within the exclusive domain of the Tribunal and that this will also suggest that in a case of termination governed by sections 2(A) and 11(A), the government shall refer the dispute for adjudication.

4. On merits, the learned counsel pointed out that the government, in any event, had not considered the complete discrimination made by the Management between those who were reappointed and the appellants who were dismissed from service. Non-consideration of such vital matters will invalidate the impugned order. His further argument is that all the conditions for reference are fully established in the instant case and consequently the government was bound to refer the dispute for adjudication. Relying upon the report of the Commissioner of Labour dated 30.8.197.9, the contention is that the government is bound by the report of the Commissioner of Labour and as the Commissioner of Labour had suggested the reference of dispute to adjudication, the government cannot ignore the report of the Commissioner of Labour and refuse a reference. He further pointed out in this connection that the government had not given any reason, more so, weighty reasons, to differ from the Commissioner of Labour.

5. The appeal is resisted not only by the Management represented by Mr.A.R. Ramanathan but also by Mr.Sadanand, learned Government advocate. It may be useful to point out that the Management as also the Government filed respective counter to the writ petition in this appeal for, as earlier pointed out, the writ petition was dismissed in limine. It may also be noticed immediately that the charge of discrimination urged by the appellants, according to the learned counsel for the third respondent-management, was not raised before the learned judge and, therefore, the appellants should not be permitted to urge the said charge. On the strength of the averment set out in the counter filed by the Management, the learned counsel submitted that they disputed the facts on which the charge of discrimination is founded. We will be referring to it at the appropriate time in detail on this subject. Learned Government advocate brought to our notice sections 33(A) and 33(C)(2) in the to support his contention that section 10 stands unaffected notwithstanding the introduction of sections 2(A) and 11(A) of the. The learned counsel emphasised relying upon A.I.R. 1965 Supreme Court 661 at 680 that a legal fiction created under a statute in confined to the purpose for which it is intended and the same shall not be extended for any other purpose. He further submitted that though the Parliament amended the in 1965, 1971 and 1982, section 10 did not suffer any amendment notwithstanding the introduction of sections 2(A) and 11(A) of the.

6. At the outset, we have to point out that the learned counsel for the appellants had not argued the point that section 10 is unconstitutional for want of guidelines with reference to the exercise of the powers conferred on the appropriate government. Be that as it may, it is too late in the day for the appellants to assail the vires of section 10 of thein view of the decision of the Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Shambunath Mukherji and others (1977) Lab.I.C. 1695: (1977)4 S.C.C. 415: (1978)1 S.C.R. 591: A.I.R. 1978 S.C. 8. which was also relied on by the learned judge. Thus this point fails.

7. Let us now consider as to whether section 2(A) and section 11(A) had mitigated the discretionary powers of the government under section 10(1) of theto refuse to refer the dispute for adjudication. section 2(A) provides:

2A. Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.

section 11- A provides:

11-A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal, or National, Tribunal, as the case may be, is; satisfied that the order of discharge or dismissal was not justified, it may, by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

It may be noticed that section 2(A) was inserted by Act 35 of 1965 with effect from 1.12.1965 while the other provision, namely, section 11(A) was inserted by Act 45 of 1971 and came into force with effect from 15.12,1971. Under section 10(1), where the appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing, refer the dispute to a Board for promoting a settlement thereof or refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry or refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to the matter specified in the second schedule, to a Labour court for adjudication, or refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the second schedule or the third schedule, to a tribunal for adjudication. The second proviso alone may be noticed at this stage. According to that proviso, where a dispute relates to a public utility service and a notice under section 22 has been given, the appropriate government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceeding under this Act in respect of the dispute may have commenced, (emphasis supplied by us). Under section 12(5), if, on a consideration of the report referred to in sub section (4), the appropriate government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference, and, where the appropriate government does not make a reference, it shall record and communicate to the parties concerned its reasons therefor. On the advent of section 2(A), where any employer discharged, dismissed, retrenched or otherwise terminated, the service of an individual Workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. In short, if the circumstances under the said provision are established, the law shall presume that there shall be deemed to be an industrial dispute. If we turn, to section 10(1) it is clear that before a reference is made by the government, it shall form the opinion that an industrial dispute exists or is apprehended. It is pertinent to remember that any dispute or difference relating to discharge, dismissal, retrenchment or termination of the services of a workman otherwise, between that workman on the one hand and his employer on the other is not an industrial dispute as per section 2(k) of the. In other words, under section 2(k) a worker by himself is not enabled to raise --- an industrial dispute. This handicap is removed by section 2- A. section 2(A) has no further part to play. It would immediately follow that section 2- A does not at ait retrench upon the discretion vested in the government under section 10. A close reading of these two provisions sections 2- A and 10 of the will justify our view.

8. Now turning to section 11(A) of the Act, we must point out that under that provision, the powers of Labour Courts, Tribunals and National Tribunals were alone enlarged. It may be useful to point out at this juncture that before section 11(A) the powers of these Tribunals in the reappraisal of the evidence before the Domestic Tribunal were very limited. But after the introduction of section 11(A) these Tribunals are empowered to examine the evidence afresh and also to grant additional opportunities to both the parties to place further evidence to sustain or to assail an order passed by the Domestic Tribunal where the industrial dispute related to the discharge or dismissal of a worker. Though the side-note is not conclusive, yet, it is relevant to understand the content of a particular provision. In this case, section 11(A) prescribes powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Even a fair reading of the said provision indisputably points out where an industrial dispute relating to the discharge or dismissal of a workman had been referred to such Tribunal, such enlarged powers as prescribed under section 11(A) can be used by such Tribunals. To put it differently, the discretion vested in the government under section 10(1) is in no way ruffled by this provision. No doubt, when the government refuses to make a reference, section 12(5) requires that it shall record and communicate the reasons therefor. In case where section 11(A) is attracted, where the government refuses a reference of the dispute for adjudication, the government shall record its reasons also on the quantum of punishment. Before section 11(A), there was no statutory obligation on the part of the. government to give its reason when it refused reference even in respect of punishment awarded in a domestic enquiry. Now, section. 11(A) obliges the government to state reasons even on the quantum of punishment. This, in our view, is the only effect of a conjoint reading of section. 12(5) and section 11(A) of the. We have to reiterate that section 11(A) had no effect at all on section 10. We find no nexus between the power conferred on the government under section 10(1) and the enlarged power conferred on the Tribunals under section 11- A. If so, there can be no justification whatever to dilute the discretionary power of the government under section 10(1) simply because a radical change is made in the power of the Tribunals in that their jurisdiction over the findings of the domestic tribunal was enlarged. The object of section 11- A is to confer on Tribunals larger powers so as to enable them to interfere with the punishment of termination if it were found that the punishment is disproportionate to the charge. As otherwise, if for a trivial charge the workman is dismissed and if the finding of guilt could not be interfered with by the Tribunals, the workman would be left helpless and would be without any remedy. section 11- A rescues the workman from such disproportionate punishment at the hands of the establishment. Further, it is manifest from the wording employed in section 11- A that only on a reference are the Tribunals enabled to exercise such wide power now conferred on them under section 11- A. We hold that section 11- A does not in any manner control the discretionary power of the government under section 10(1).

9. These apart, there are intrinsic indications in the itself, which positively point out that the discretion of the government is in no way fettered by sections 2- A and 11-A. In the foremost, the second proviso to section 10(1) which came into force with effect from 10.3.1957; requires to be noticed. According to that proviso, where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced. Thus, in a case where a dispute related to a public utility service, the government had no discretion but is bound to make a reference under section 10(1). While in section 10(1) the word may is used indicating that the discretion is vested with the government either to refer or not to refer any dispute for adjudication; such a discretion is taken away in a case where the dispute related to a public utility service. Thus, in the very same provision two different powers in the government are found. In such a case, it is but reasonable to conclude that the contrast was deliberately provided for in other words the word may in sub- section (1) cannot be read as shall. This contrast Conclusively establishes that except in a case covered by the proviso referred to above, it is for the government to exercise its direction in all other cases either to refer or to refuse a reference for adjudication. Obviously, therefore, the learned counsel for the appellants confined his argument on the interpretation of section 10(1) to the effect that in a case where sections 2- A and 11-A are attracted, the government has no discretion but shall refer the dispute for adjudication. Besides, if we turn to sections 33- A and 33-C(2), it is seen that a right is conferred on any employee to approach directly any of the Tribunals named therein to obtain the reliefs referred to in the said provisions. Under section 33- A where an employer contravenes the provisions of section 33 during pendency of the proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint, that Labour Court, Tribunal or National Tribunal, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate government and the provisions of this Act shall apply accordingly.. section 33(2) enables a workman to have the question arising as to who is entitled to receive from the employer any money or any benefit which is capable of- being computed in terms of money and to have any question arising as to the amount of money due or as to the amount at which such benefit should be computed, decided by such Labour Court as may be specified in this behalf by the appropriate government. Therefore, if really the Parliament intended that in the face of sections 2- A and 11-A, the goverments discretion under section 10(1) were to be curtailed, it would have added a proviso to section 10(1) as the second proviso, referred to supra. But that is not the case. The significance of non-amendment to section 10 by the Parliament is a. major and important factor to appreciate the impact of sections 2- A and 11-A on section 10. If the Parliament in its wisdom did not amend section 10 notwithstanding sections 2- A and 11-A, it stands to reason that it deliberately avoided defusing the discretionary powers of the government to refer or not to refer any industrial dispute for adjudication. We are, therefore, unable to accept the interpretation, as suggested by the learned counsel for the appellants that in a case covered by sections 2- A and 11-A the government had no other alternative but to refer the dispute for adjudication. Indeed, the Supreme Court in Workmen v. Firestone Tyre and Rubber Co. (1973) 1 S.C.C. 813: (1973) Lab.I.C. 851: A.I.R. 1973 S.C. 1227: (1973)3 S.C.R. 587 at page 608 observed:

To invoke section 11-A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication.

10. It is equally of vital importance to notice that in the cases rendered after the advent of sections 2- A and 11-A and cited before us by both the learned counsel, no decision had gone to the extent of laying down the law that on account of sections 2- A and 11-A the discretion of the government under section 10 was lost or taken away, save S.Arumugham v. Govt. of Tamil Nadu S.Arumugham v. Govt. of Tamil Nadu (1980)1 I.L.J. 305 which would actively support our. view.

11. In Prem Kakkar v. Haryana (1976)3 S.C.R. 1010: (1976)3 S.C.C. 433: A.I.R. 1976 S.C. 1474, the principle laid down is that in entertaining an application for a writ of mandamus against an order made by the appropriate government under section 10(1) read with section 12(5) of thethe court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons and that if it appears from the. reasons given that the appropriate government took into account any consideration irrelevant or foreign, then the court may in a given case consider the case for a writ of mandamus. In that case, ultimately the Supreme Court held it was not a fit case for reference for adjudication and upheld the governments refusal to refer the dispute for adjudication.

12. Varadarajan, J. (as he then was) in S.Arumugham v. Government of Tamil Nadu (1980)1 L.L.J. 305 held that because the government took into account the report of the Advisory Committee, which included among its Members the Managing Director of the Management itself and because the Governments order did not contain anything to show that the government went into the truth or otherwise of the fact mentioned by the conciliation officer in paragraph 5 of his failure report that the action of the management is not free from suspicion in regard to their motive having regard to the fact that the petitioner was an active office-bearer, namely General Secretary of the TIDCO Employees Union, quashed the order of the government refusing a reference and directed the government to reconsider the matter in the light of relevant materials and his judgment. At the same time, at page 308 second column, the learned Judge observed:

There is no doubt that the government has completely ignored the effect of section 11-A of the Industrial Disputes Act in case a reference is made under section 10(1) read with section 12(5) of thethough section 11- A cannot be stated to compel a reference in all cases.

It is this passage which would repel the contention of the learned counsel for the appellants. It is convenient to advert to the argument advanced by the learned counsel for the appellants relying on the observations of the learned judge and that is:

What is more, the government had declined to make a reference inspite of the fact that the motive of the second respondent has been suspected by the conciliation officer and both the conciliation officer and the Commissioner of Labour have reiterated that the matter may be subjected to judicial scrutiny by making a reference for adjudication before the Labour Court.

A reading of the judgment, as a whole, would clearly point out that the learned judge did not quash the order of the government solely on the ground that the government failed to accept the recommendation of the Commissioner of Labour. As a matter of fact, the argument advanced by the learned counsel for the appellants is that the government is bound by the report of the Commissioner of Labour considering the position the said Officer holds in that particular Department and if the government were to differ it shall give weighty reasons for the same. Such a contention is hardly tenable and the judgment of the learned judge, quoted above, does not lend support to such a contention. it is relevant to notice that in that case both the conciliation officer and the commissioner of labour reiterated that the dispute should be referred to adjudication and further, as already pointed out by us, that was not the only circumstances which persuaded the learned judge to quash the said order of the government. On the other hand, the more powerful circumstances which really influenced the learned judge are that the government considered the report of the Advisory Committee in which the Managing Director of the Management itself was a member and that the governments order did not contain anything to show that the government went into the truth or otherwise of the fact mentioned by the conciliation officer in paragraph 5 of his failure report that the action of the second respondent is not free from suspicion in regard to their motive having regard to the fact that the petitioner was an active office bearer in the Union concerned.

13. A Division Bench of this court in P.Balasubramaniam v. Government of Tamil Nadu reptd. by the Secretary Labour and Employment Department Madras and another P.Balasubramaniam v. Government of Tamil Nadu reptd. by the Secretary Labour and Employment Department Madras and another (1980) T.L.N.J. 58 had pointed out:

The fact that the government did not state in the order declining to make a reference that they were satisfied that the punishment was not disproportionate cannot preclude the government from stating to the court, when the issue was before the court that they had considered the question and were of the opinion that the punishment was not disproportionate.

For that purpose, the Division Bench relied on paragraph 3 of the counter affidavit filed by the government, in which the government clearly stated that having regard to the nature of the misconduct, the punishment could not be held to be disproportionate. It is also interesting to note that the Bench had further observed:

But simply because the government stated that the application of section 11-A of thewould arise only after a reference had been made to the Labour Court or the Tribunal it could not be held that the government had not considered whether the punishment was disproportionate or not, before they declined to make the reference.

Thus, ultimately it upheld the order of the learned Single Judge of this court, who in turn declined to set aside the order of the Government refusing to make a reference. The Division Bench further found that the government had considered all the facts before it declined to make a reference.

14. In Workmen v. Firestone Tyre and Rubber Co. (1973)1 S.C.C. 813: (1973)3 S.C.R. 587: A.I.R. 1973 S.C.I 227: (1973)1 L.L.J. 278 the effect of section 11- A was noticed by the Supreme Court and we quote the relevant paragraph:

The legislature in section 11- A has made a departure in certain respects in the law as laid down by this court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in all enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the proviso. The proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workman only on the basis of the materials on record before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The matter in the proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.

Though, we would be referring to Sengara Singh v. State of Punjab (1984)1 L.L.J. 161 in detail in due course, we have to point out at this stage that the effect of sections 2- A and 11-A did not fall for consideration in that case. What was pointed out by the Supreme Court in Hoch-tiee Gammon v. State of Orissa (1976) 1 S.C.R. 667: (1975)2 L.L.J. 418: (1975)2 S.C.C. 649: A.I.R. 1975 S.C. 2226 is that the courts can interfere with such executive orders passed by the Government, if the government refused to consider relevant matters or took into account wholly irrelevant and extraneous considerations or they misdirected themselves on a point of law and in short the court has the power to see that the executive acts lawfully. It was further pointed out that the government should give reasons and that if they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. In that case, no doubt the order of the government was quashed and the state Government of Orissa was directed to reconsider the matter and take a decision in the matter of reference in the light of the relevant facts.

15. Where the Labour Commissioner, while exercising the powers of the State Government under section 12 for making reference, declined to refer the dispute for adjudication on the ground that the delinquent, a bank employee, was not a workman within the meaning of section 2(s) but no reasons were given by him to justify that conclusion, all that he has stated in his order was that the post held by the delinquent did not fall within the category of workman, the Supreme Court straightaway directed the Labour Commissioner to make a reference either to the Labour Court or to the Industrial Tribunal under section 12(5) as he considers proper - vide Nirmal Singh v. State of Punjab (1984) Lab.I.C. 1312: (1984)2 S.L.J. 321: A.I.R. 1984 S.C. 1619.

16. A Division Bench of the Bombay High Court in K.P.Kshatriya v. Khandelwal Udyog Ltd. (1980)2 L.L.J. 261: (1981) Lab.I.C. 1611 made the following observations:

The power conferred under section 10 to make a reference or not, is indeed discretionary and that the government is not bound to make a reference of any dispute because a party or a union or the employer demands such a reference. Even so, the government is under an obligation to exercise the discretion, reasonably and by reference only to relevant considerations. One of the relevant considerations, while making or refusing to make a reference, after the introduction of section 11- A must necessarily be that the employee is entitled to get the evidence as to the proof of his misconduct received in such a reference as also the quantum of punishment, even if the misconduct is held to have been proved. In other words, the circumstances that the disciplinary authority or the appellate authority over the same has applied its mind to the evidence on record and had bona fidecome to some conclusion as to the proof of misconduct and the quantum of punishment by itself is not sufficient to refuse to make reference.

In the altered legal situation, the government has to consider prima facie whether there is anything in the evidence which may goad or persuade the Labour Court or the Industrial Tribunal to change its opinion as to the conclusion of misconduct or the quantum of punishment therefor. The government may refuse to make a reference if in their prima facie opinion the right of getting evidence reviewed already recorded and the right of getting reviewed the quantum of punishment awarded, is bound to be of no practical use in a particular case.

In conclusion, the Division Bench quashed the order of the government, because, according to them, the government has not borne in mind the relevant considerations. It is pertinent to notice that the learned judges of the Bombay High Court expressed, no doubt, about discretionary power vested with the government under section 10 notwithstanding section 11-A, on the other hand, they asserted that the power conferred under section 10 to make a reference or not is indeed discretionary and then the government is not bound to make a reference of any dispute.

17. Padmanabhan, J. in Balasubramaniam v. Government of Tamil Nadu (1982)1 L.L.J. 447 pointed out that the petitioner therein never questioned the severity of the punishment in any of his representations and held:

As the government had applied its mind to the consideration of severity of the punishment, the question whether victimisation would include a case where a worker has been punished out of proportion to the offence need not be decided.

18. Even the decision in Kaithdar Singh v. State of Gujarat (1977)2 L.L.J. 353; Workmen J and P Coats v. State of Kerala (1977)2 L.L.J. 534 and Venkatiah v. Government of India, Ministry. of Labour (1978)2 L.L.J. 487: (1978) Lab.I.C. 135 had uniformly laid down that the government shall take into consideration all relevant considerations and should not be influenced by remarks which are not germane.

19. We do not find any substance in the contention urged by the learned counsel for the appellants that the courts shall give due importance to the policy of the. According to the learned counsel, being a benevolent statute, the courts shall render an interpretation as to advance the interest of the workmen. But the is intended to make provision for the investigation and settlement of industrial disputes and for certain other purposes. Even since the introduction of the, the discretion to refer or not any industrial dispute for adjudication came to reside only with the government. As already pointed out, notwithstanding several amendments in 1965, 1971 and 1982. the discretion of the government under section 10(1). never underwent any change. As a matter of fact, learned counsel for the appellants did not dispute the discretionary power vested with the government under section 10(1) before the advent of sections 2- A and 11-A. If so, we are unable to understand as to how the policy of the would have an impact in any way on section 10(1) merely because sections 2- A and 11-A were introduced later. In other words, section 10(1) was in consonance with the policy of the before the introduction of sections 2- A and 11-A. Then, it is too late in day to contend that by virtue of the two provisions having been inserted in the act, section 10 would be repugnant to the policy of the. The correct approach should be to find out how far these two new provisions had affected the discretionary right of the government under section 10(1). We have already expressed our opinion.

20. Learned counsel for the appellants also stressed that if the government were to refuse a reference as in this case, it would be frustrating the workmens right to have the dispute adjudicated by a National Tribunal. This argument does not appear to us to be sound. For, the judicial pronouncements have indicated that the court has the power to interfere with the orders of the government in refusing a reference for adjudication in certain circumstances. Nor does the purpose of section 11 become illusory, as repeatedly urged by the learned counsel for the appellants, simply because in certain cases involving termination of service of the employee, the government refused a reference. For, wherever the matter is referred to arbitration, the Tribunal shall exercise the wide powers conferred under section 11- A. Where there is a wrongful refusal, the wrongful refusal can be remedied by this court under Article 226 of the Constitution of India, as indicated by the judicial pronouncements, referred to supra. Thus, even this argument has to be rejected.

21. We may incidentally point out that in view of the decision in Nirmal Singh v. State of Punjab (1984) Lab.I.C. 1312: (1984)2 S.L.J. 321: A.I.R. 1984 S.C. 1619, we have no hesitation to hold that this court has the power under Article 226 to issue a writ of mandamus straightway directing the government to refer the dispute for adjudication.

22. On merits, the argument of the learned counsel for the appellants is that the government had not taken into consideration all the relevant circumstances. According to him, the most relevant and important circumstance is that the Management had made a discrimination between the workers who were taken back into service vis-a-vis the appellants and five others, who were dismissed from service. Learned counsel would urge that the conduct of the management in reappointing 135 alone and in dismissing the rest, including the appellants, herein, is plagued with discrimination; that this particular aspect was not noticed by the government, as is evident from the impugned order, that therefore, the government failed to consider the material consideration and that consequently the order is liable to be quashed. The point of law involved in this submission is beyond doubt. But the question is whether the appellants have succeeded in placing relevant factual data to sustain such a contention. We may straightway point out that in paragraph 14 of the counter affidavit filed by the management (third respondent) it is denied that the charge sheets containing the same charges were issued to 154 employees with an ulterior motive. It is further pointed out in that paragraph that there is no question of discrimination alleged by the petitioners, because the Enquiry Officers were different, charges were different in each case and these enquiries were independent and separate fully participated by the petitioners with the assistance of their leader and co-worker Sri K.Ramamoorthy. It is further pointed out in paragraph 15 of the counter affidavit that the punishment was awarded on a careful consideration of the charges, the proceedings of the enquiry, the findings of the enquiry proceedings and the past record of service. The appellants did not choose to file a reply affidavit. It is equally relevant to notice that neither in the letter dt. 27.2.1979 addressed to the Management nor in the revision dt. 17.4.1979 to the Commissioner of Labour and Welfare Department, had the appellants pleaded necessary facts to found a case of discrimination. The explanation put forward by the learned counsel for the appellant is that after all the workmen are not competent draftsmen and, therefore, liberal approach has to be made by this court. But, unfortunately, for the appellants even in the affidavit filed in support of the writ petition necessary facts are not averred to found the grievance of discrimination. The only reference in the affidavit filed by the appellants in support of the writ petition is to the effect that the third respondent management reinstated all the charge-sheeted employees except 12 including the seven present writ petitioners, that the action of the third respondent management dismissing the petitioners while reinstating other similarly charge-sheeted employees against whom also charges were held to be proved was discriminatory, arbitrary and vindictive. It is needless to state that unless it is not only pleaded but also established by satisfactory evidence that all the 154 employees were charge-sheeted for identical charges and for the charges so proved the establishment reinstated a major number of workmen but dismissed the twelve workmen including the writ petitioners, the appellants are not entitled to complain of discrimination or arbitrariness as against the management. As already pointed out, the affidavit filed in support of the writ petition is bereft of material particulars. Nor had the appellants chosen to file a reply affidavit before us when in the counter affidavit the Management had denied any such discrimination. It is relevant to note that while the management awarded punishment it not only took he guilt that was established in the domestic enquiry, but also the antecedents of several workmen. If, therefore, the Management took into consideration not only the guilt that was admitted by them in the domestic enquiry, but also their respective antecedents there can be no room for the contention that there was any differential treatment of those who were reappointed and those who were dismissed from service. Indeed, we had occasion to refer to the counter filed by the management that the management took into consideration not only the guilt but also the past record of service. It may not be out of place to refer to the failure report filed by the Labour Officer, Chingleput District to the government. As regards, A.Kondiah, it is stated therein that even on 23.8.1977 he failed to do his work, but also went to the other departments and prevented other workmen from doing their work. Thus, his past blemished record of service also prevailed with the management when they passed the orders of dismissal. A similar reference is found in that report regarding Harinathan and Kabaleeswaran. These circumstances will certainly fortify the stand taken by the management in the counter affidavit that not only the guilt but also the past record of services were taken into account by the management when they passed the orders. If the appellants had blemished records in the past and if such antecedents were also taken into account by the management in awarding the punishment of dismissal, it is not possible to accept the appellants contention that there was a discrimination amongst equals. We have to reiterate that the workmen had not laid foundation to support such a charge by alleging all relevant factors, such as antecedents of every workman, charges levelled against every workman and failed to satisfy by means of evidence that not only the past antecedents, but also the charges were identical between the workmen who were reappointed and the workmen who were dismissed from service. We reiterate no such materials were placed before the court; nor were they alleged in the affidavit filed in support of the writ petition. If so, the appellants have not made the necessary pleadings nor have they made out a case for sustaining their grievance of discrimination.

23. It is worthwhile to notice that even in the decision rendered by the Supreme Court in Sengara Singh v. Stats of Punjab (1984)1 L.L.J. 161 it is clear that if the present petitioners were to be guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated, there can be no discrimination as is evident from the following observations:

Now if the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal case against them, they could be reinstated, we see no justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. Respondents failed to explain to the court the distinguishing features and, therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which could tantamount to denial of equality as guaranteed by Article 14 of the Constitution.

In this case, we had already referred to the fact that no materials were placed before us to sustain the contention that all the employees were charged on identical accusation and that on the other hand it is fairly established by the management (third respondent) that the charges were quite different. There were as many individual enquiries as there were workmen and that while imposing the punishment not only the guilt that was admittedly by the employees but also the antecedents of every workman were taken into consideration. Thus, these are the distinguishing features which would forbid the application of the ratio laid down in the above Supreme Court decision.

24. However, it may be still open to the appellants to contend that the government had failed to consider this important point. Here again, we have to point out that the appellants cannot succeed for the simple reason that in their representations to the government this was not at all pleaded. It is relevant to refer at this stage to the letter of Mr.V.P.Chinthan, dt. 26.7.1979 addressed to the Secretary, Labour Department, Government of Tamil Nadu, Madras and the letter dt. 26.7.1979 addressed by the President of the Lucas-TVS employees Union to the Minister for Labour. These we could find from the government files produced by the learned Government advocate. On that basis, the impugned order came to be passed on 11.10.1979, where by the government refused a reference of adjudication. Thereafter, it appears that further representations were being made by the appellants to the government. One such representation is dt. 20.2.1981. It is this document that is pressed into service by the learned counsel for the appellants to support his contention that the workmen had brought to the notice of the government about the discriminatory treatment meted out to the appellants. Particular emphasis is made on paragraph 5 at page 95 of the government files. Even the allegation in that paragraph 5 would not in any way assist the appellants. It might be that in that paragraph it is stated that for like charges 154 employees were proceeded against and after enquiry while 135 were reappointed, 19 alone were dismissed, and such a conduct on the part of the management is discriminatory. We must point out that assuming the charges are identical that alone will not enable the appellants to successfully contend that the management is guilty of discrimination. For, we have already pointed out that when the management passed the punishment they took into account not only the guilt in the domestic enquiry, but also the past record of every workman. There is no reference in this document to the consideration of past record. Then, it is very difficult to accept the argument relating to discrimination.

25. We may incidentally add that though it was vehemently opposed by Mr.A.R. Ramanathan, learned counsel for the management that this new point should not be permitted to be raised by the appellants, we proceeded to consider them in the larger interest of the dismissed employees, particularly when there is a feeling of frustration in the minds of the dismissed employees.

26. The only other question is, whether the government has given reasons for its refusal to refer the dispute for adjudication. In this connection, the order itself is required to be noticed. The order runs thus:

LABOUR AND EMPLOYMENT DEPARTMENT

G.O.Ms.No.1650Dated 11.10.1979.

Read the following

1. From the Labour Officer, Chingleput at Madras conciliation report No.1055/79 dt. 19.7.79;

2. From the Commissioner of Labour, letter No.83/65286/79 dt. 31.7.79.

ORDER: The Government have examined the conciliation report of the Labour Officer first cited in regard to an industrial dispute raised by Thiru A.Kondiah and 6 others against the Management of Lucas TVS Limited, Madras-50 over the issue relating to the non-employment and they pass the following orders:

3. It is seen that the enquiries were conducted adhering to the principles of natural justice and that the punishment imposed is not disproportionate to the gravity of the offence committed.

4. Hence the government consider that there is no case to refer the issue in dispute for adjudication.

We find that the order had given reasons even with regard to the question whether the punishment imposed is disproportionate or not to the gravity of the offence committed. Thus, we find there is enough compliance of section 12(5) of the. It is needless to state, as also pointed out by the learned Judge, whose order is appealed against, that there is no mandate in law that the government shall write a judgment as such summarising the respective cases of the parties, its analysis of the circumstances, its reasoning and its conclusion. According to the citations brought to our notice and quoted earlier, the only mandate is that the government ought to have considered all the relevant circumstances; nowhere has it been laid that the government should write a judgment as such. It is not the contention of the learned counsel for the appellants that the government was influenced by irrelevant materials or circumstances. On the other hand, his argument was that the government failed to take into consideration all relevant circumstances, the most important one being the discrimination. Further, we have to point out that it is enough that the records of the government fairly indicate that the government had considered all relevant materials before it passed the impugned order. We have also had occasion to go through the files. Indeed, we have already made reference to certain pages. In our considered opinion, we are confident that the government had taken into consideration all the relevant factors before it passed the impugned order. It is essential at this stage to refer to the fact that in the impugned order though there is a reference to the letter dt. 31.7.1979 from the Commissioner of Labour, the order does not refer to the failure report submitted by the Commissioner of Labour on 30.8.1979. But it is relevant to notice that the said report is found in the file produced by the learned government advocate. This will clearly show that the government did take into consideration not only the report filed by the Labour Officer, Chingleput, but also the report of the Commissioner of Labour. Thus, we are unable to find anything to suggest that the Government had not considered all the relevant materials while it passed the impugned order.

27. Yet another point urged by the learned counsel for the appellants is that the government should have accepted the report of the Commissioner of Labour and if the government wanted to differ, it should give its reasons. In our view, the said argument is most untenable. There is no provision in the to warrant an imposition of such a duty on the government, under section 12(5) the government is bound to consider the report referred to in sub- section (4). Sub- section (4) in turn refers to the report of the conciliation officer. In this case, it is not in dispute that the conciliation officer is the Labour Officer, Chingleput. The Labour Officer had recommended refusal. It has to be remembered that the Commissioner of Labour had recommended a reference. According to us, unless there is mandate in law that the recommendation of the Commissioner of Labour is binding on the government or should be respected by the government, it is too difficult to accept the above argument. It might be that besides the report of the conciliation officer, the government also wanted to know the attitude of the Commissioner of Labour. But that would not mean that the government is either bound by such report or to furnish weighty reasons to reject such report. In this case, it is seen from the government files and the impugned order that the government also took into consideration the report of the Commissioner of Labour, which is after all his opinion, having no statutory sanction. Thus, even this argument fails.

28. As the order to be passed by the government under section 10(1) is after all an executive one and it is left to the subjective satisfaction of the government to refer or not a dispute for adjudication, the appellants are not entitled to have audi alteram partem and rightly did the learned single Judge reject their contention. As we have to construe the and as we had enough guidance from several decisions referred to in this judgment, it is unnecessary to refer to the recommendations of International Labour Organisation nor to several passages referred to in the Book of Administrative Law by Wade.

29. In the result, the writ appeal fails and is dismissed. But we make no order as to costs.