S. Natarajan, J


This appeal has been preferred by the petitioner in Writ Petition No. 3913 of 1977, who sought a writ of certiorari to quash an order of Government (1st respondent) in G.O.Rt. No. 332, Employment and Labour Department, dated 19th February, 1974 declining to make a reference under section10(1) of the Industrial Disputes Act for adjudication by the Labour Court.


2. Briefly stated, the case of the appellant is to the following effect. While the appellant was serving the second respondent as Assistant Cashier, certain charges were framed against him alleging that he had misappropriated sale amounts of scrap to the tune of Rs. 2017/- and when questioned by the Assistant Manager, he had made good only a sum of Rs. 500/- and failed to deposit the balance of the amount. The appellant's explanation to the charge memo was not accepted and a domestics enquiry was held and the Enquiry Officer gave a finding that the charge was proved. Based on that finding the appellant was removed from service. The appellant raised an industrial dispute and conciliation proceedings were conducted by Labour Officer IV, Madras. The conciliation proceedings ended in failure and there upon a failure report, was sent to the Government. The appellant sought a reference of the dispute for adjudication by the Labour Court; but by the impugned order dated 19th February, 1974, the Government declined to refer the issue for adjudication. Challenging the correctness of the order, the appellant filed W.P. No. 3913 of 1977 and sought the issue of a writ of certiorari to quash the order of the Government. A learned single Judge of this Court declined to issue a writ of certiorari on the ground that there is no material on record to show that the impugned order of Government is vitiated on account of reliance on extraneous considerations or non-consideration of relevant materials or by mis-direction in law. Against the dismissal of the Writ petition, the appellant has preferred this appeal.


3. Mr. Fenn Walter, learned counsel for the appellant argued that the learned single Judge was not right in holding that the order of Government was not vitiated by non-consideration of relevant materials, because the Government has committed an error in holding that the appellant has not let in evidence during the enquiry to show that he had not received the amount alleged to have been misappropriated by him. The counsel invited our attention to the appellant's deposition in the domestic enquiry and his referring to the procedure that was being followed in the office of the 2nd respondent for receipt of cash towards sale of scrap, etc., and his categoric statement that the twenty bills, on which the management placed reliance, are not cash bills, but only bills issued at the first stage of the transaction without cash actually being received and as such, he is in no way liable to account for the sum claimed from him.


4. To appreciate the argument of Mr. Fenn Walter properly, it is necessary that we should set out the exact terms of the order passed by the Government, when it declined to make a reference. The order reads as follows :-


"The Government have considered the conciliation report submitted by the Labour Officer IV, Madras on the dispute raised by Thiru K. K. Kurian, formerly an Assistant Cashier, over his non-employment against the management of the Southern Bottlers Private Ltd., Madras-32 and they pass the following orders :


2. Thiru K. K. Kurian has been dismissed for having been found guilty of misappropriation of the sum of Rs. 2, 017/- under twenty bills which were neither accounted for nor deposited in the bank. He has not let in evidence during enquiry to show that he has not received this amount. Hence the findings of Enquiry Officer that Thiru K. K. Kurian was guilty, are correct.


3. The proper procedure was followed in the conduct of the domestic enquiry in consomance with the principles of natural justice.


4. The Government therefore consider that it is not necessary to refer the issue for adjudication." *


From the records, it is however seen that the appellant has examined himself during the domestic enquiry and has referred to the terms of the Office Order setting out the procedure to be followed whenever sale of scraps is effected. The relevant portions of his evidence are in the following terms :-


"As per the office order No. 202, the Stores Department prepares the bill in triplicate and they are to be sent to Accounts Section and it will be checked by the Accountant. Payment is then to be made to the cashier. This will clearly show that there are two stages before the cash is received by the Cashier, viz., preparation and scrutiny. The statements of the witnesses that it is coming directly" *


to the cashier is wrong. By procedure and practice, instead of Accountant. I myself check and initial in one copy with an endorsement 'received'. It indicates only the bills have been received by me and checked. The bills will be sent back to Stores in order to remit the cash. If the cash is received by me, I issue a stamped receipt. For these twenty bills in question, receipts are not produced and hence, I am not responsible .... Rs. 500/- was not paid by me on 12th February, 1972 and there was no reason for such payments .... In the above circumstances, I am in no way at fault as per the allegation against me."


5. Having regard to the categorical statements made by the appellant during the domestic enquiry, it goes without saying that the Government was not right in concluding that he had not let in evidence during the enquiry to show that he has not received the amount. Likewise, the statement that he had made a part-payment of Rs. 500/- is also not correct because the appellant has denied the payment of Rs. 500/- attributed to him. It therefore follows that the order of the Government is vitiated by the fact that there has been failure to consider relevant materials, which are on record. The learned single Judge was not therefore right in concluding that the order of the Government is not vitiated in any manner. On that short ground, the appeal deserves to succeed.


6. Mr. Fenn Walter also cited a recent decision of the Supreme Court in Ram Avtar Vs. State of Haryana (1985-II-LLJ-187). It has been held in that case that when the Government exercise its powers of reference under section10(1) of the Industrial Disputes Act, it performs only an administrative act and as such, it cannot delve into the merits of the dispute and take upon itself the determination of lis. The learned counsel argued that since in this case the Government have gone into the merits of the case, it has exceeded the limits of its power under section10(1) of the Act and on that ground too, the writ appeal should be allowed and the order of the Government should be quashed. Since we have

found merit in the first contention itself, it is not necessary to go into the merits of the second contention put forward by the learned counsel. 7. In the result, the writ appeal is allowed and there will be a rule quashing the order of the Government in G.O.Rt. No. 332, Employment and Labour Department, dated 19th February, 1974. The matter will stand remitted back to the Government for fresh consideration of the question. It is needless for us to state that while considering the matter afresh, the Government will bear in mind the ratio laid down by the Supreme Court in Ram Avtar's case (supra) referred to already and exercise its powers under section10(1) of the Act on considerations relevant and germane to the decision. There will be no order as to costs.