Natarajan, J.


The State has preferred this appeal against the order of Ramaswami, J. in Writ Petition No. 386 of 1977 setting aside an order of the Government in G.O.Rt. No. 1194, Labour and Employment Department dated 1st June, 1976 and remitting the matter for fresh disposal in accordance with law. Pursuant to domestic enquiry held by the second respondent against its employee, the first respondent, with reference to charges of creation of bogus records and other irregularities, the second respondent dismissed the first respondent from service by its order dated 28th February, 1974. The first respondent sought to raise an industrial dispute. Conciliation proceedings were held by the second appellant but as they did not fructify, he sent a failure report. Thereupon the first appellant declined to refer the dispute for adjudication by the Labour Court. The impugned G.O. whereunder the order of the Government was made was in the following terms :



"It is seen that the charges against the worker have been proved in a proper enquiry. The Government do not, therefore, refer the issue in dispute for adjuciation." *


2. Aggrieved by the order of the Government, the first respondent filed Writ Petition No. 386 of 1977 and sought a writ of certiorari to quash the order passed by the Government. Ramaswami, J. allowed the writ petition on the ground that after the introduction of section11-A in the Industrial Disputes Act, 1947, (hereinafter referred to as the Act), the Government is bound to apply its mind before ordering or declining to make a reference about the adequacy or otherwise of the punishment, but since the Government had failed to apply its mind to that aspect of the matter while passing the impugned order, the order suffered from non-application of mind by the Government and hence the order had to be quashed and the matter remitted to Government for fresh consideration. It is to challenge the correctness of this view of the learned single Judge, the State has preferred this appeal.


3. Mr. Chinnaswami, learned Additional Government Pleader, submitted that the order of the learned single Judge is not sustainable on account of several factors viz., 1. The discretion vested in the Government under sections 10(1) and 12(5) of the Act is not trammelled in any manner by section 11-A. Only if the Government is of opinion that any industrial dispute exists or is apprehended or if the Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make a reference and the discretionary power of Government to make reference or not under these sections has not been reduced or affected in any manner by the introduction of section 11-A(2). The object of enacting section11-A in the Act is to confer wider powers to a Labour Court, Tribunal or National Tribunal, as the case may be, and the additional powers exercisable by the Labour Court under section 11-A will be available only in respect of those workmen whose cases are referred for adjudication to the Labour Court, Tribunal or National Tribunal. Section 11-A will not therefore entitle every workman dismissed or discharged from service from seeking as of right a reference of his case for adjudication by a Labour Court, Tribunal etc. (3) If a different construction, than the one set out above, is to be placed on section 11-A then it would mean that whenever a workman is dismissed or removed from service, the Government must necessarily make a reference of the dispute for adjudication and the resultant reduction of the discretionary power of the Government would run counter to the terms of sections 10(1) and 12(5) of the Act. (4). The learned single Judge has committed an error in holding that the Government had not applied its mind to the question of punishment being commensurate to the charges proved.


4. On a close examination of the matter, we find merit and force in the contention of the learned Additional Government Pleader. Section10(1) and section12(5) of the Act, confer on Government the power of reference of an industrial dispute to a Labour Court, Tribunal or National Tribunal, for adjudication. Section 10(1) lays down that an industrial dispute may be referred for adjudication to a Labour Court or a Tribunal, if the Government is of opinion that an industrial dispute exists or is apprehended. Likewise, section 12(5) lays down that the Government, is empowered to refer a case to the Board, Labour Court, Tribunal or National Tribunal, if the Government, after considering the failure report, is of opinion that there is a case for reference. When the Government finds that an enquiry has been conducted properly and that the findings reached by the Enquiry Officer have been rendered on the basis of evidence, the Government will not be under an obligation to refer a dispute for adjudication to the Labour Court or Tribunal. The Government can therefore decline to make a reference under section10(1) or 12(5) of the Act. What is however contended by the petitioner is that even where the Government finds that the enquiry has been conducted in a proper manner and that the findings on the charges have been rendered on the basis of evidence recorded in the domestic enquiry the Government is under a further obligation to take note of section 11-A and go into the question whether the punishment awarded is proportionate or otherwise to the charges found proved against the worker and if it finds the punishment to be disproportionate, it should make a reference of the dispute to the Labour Court or Tribunal for adjudication. In fact, going a step further, it is argued that since a worker has a right under section 11-A to complain about the severity of the punishment awarded to him, even if the findings on the charges are not disturbed, the Government must necessarily afford an opportunity to the worker to present his case to the Labour Court or Tribunal for seeking relief under section 11-A.


5. In our opinion, neither of the contentions can be accepted. The purpose for which section 11-A has been enacted is to enlarge the powers of the Labour Court, Tribunal or National Tribunal, as the case may be, so that in appropriate cases even if the Labour Court or the Tribunal finds that the enquiry had been held properly and the charge is borne out by the evidence, the Labour Court or the Tribunal may still give some relief to the workers if it finds the punishment to be disproportionate to the charges held proved. That would not however mean that section 11-A will have the effect of controlling the discretion of the Government in exercising its powers of reference under section10(1) or section12(5) of the Act. In other words, section 11-A will come into operation only when a case is found fit for reference under section10(1) or section12(5) of the Act. Till then, the section will only be a dormant provision. Further more, if it is construed that by reason of section 11-A, the power of Government to decline to make a reference under section 10(1) or section 12(5) stands restricted, then what would follow is that in the case of every worker, who is dismissed or whose services are terminated, the Government will have to necessarily make a reference under section10(1) or section12(5) of the Act. To put it differently, even if the Government finds that a domestic enquiry has been held in a fair and impartial manner, and the evidence recorded brings home the guilt of the worker on the charges framed against him, still the Government will not be entitled to decline to make a reference; but will have to necessarily make a reference in order to enable the Labour Court or Tribunal to exercise its power under section 11-A and go into the question whether the punishment of dismissal or termination of service is commensurate with the misconduct committed by the worker. We do not think that the Legislature has incorporated section11-A of the Act for such a purpose or which such an object in mind.


6. These very provisions have earlier come up for consideration by this Court in Veerarajan v. Government of Tamil Nadu W.A. No. 178 of 1982. A Division Bench of this Court consisting of Ramaswami, J. and Shanmukham, J. has held that 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 is found that the punishment is disproportionate to the charge and that there is intrinsic indication in the Act itself to show that the discretion of the Government to refer cases for adjudication is in no way fettered by sections 2-A and 11-A. In another case, Kanyakumari Automobiles (P) Ltd. v. Natarajan (1983-I-LLJ-323) the scope of section 11-A came up for consideration. What fell for determination in that case was whether the Labour Court can exercise its power under section 11-A and modify the punishment awarded to the workman after rendering a finding that the management had established misconduct and disobedience by the concerned workman and that the enquiry had been conducted in a fair and proper manner. The Bench answered the question in the negative and pointed out that in the absence of a finding that the discharge or dismissal was not justified, the Labour Court will have no power to award compensation to a workman. Thus, it may be seen that even a Labour Court or Tribunal cannot exercise its powers under section 11-A unless it is of opinion that the order of discharge or dismissal is not justified. Such being the case, it goes without saying that the Government cannot be compelled to refer every dispute for adjudication by the Labour Court or Tribunal solely because of the additional powers conferred on the Tribunal under section 11-A irrespective of the fact whether the enquiry had been held in a fair and proper manner and the findings had been rendered on the basis of evidence. We are therefore unable to approve the view taken by learned single Judge and hold that because of section 11-A, the Government is bound to apply its mind to the quantum of punishment before refusing to refer a dispute for adjudication, notwithstanding the fact that no reference is called for as regards the manner in which the enquiry was held or the correctness of the finding rendered by it.7. Turning to the last contention, the learned Government Pleader had sought to bring to the notice of the learned single Judge the conciliation failure report as also the counter affidavit in support of his argument that the Government had in fact taken into consideration the quantum of punishment before declining to make a reference. The learned single Judge, was not persuaded to consider those materials because, in his view, the Government's decision on the question of punishment must be expressly stated in the order itself and the lacuna cannot be filled up by reference to the conciliation failure report or the counter affidavit. We find that the learned single Judge's view is not in conformity with the view taken by a Bench of this Court consisting of Ismail, C.J. and Ratnam, J. in Writ Appeal No. 708 of 1979, reported in Balasubramanian v. Govt. of Tamil Nadu reptd. by Secretary, Labour and Employment Department and another, 1980 T.L.N.J. 58. That was also a case where the Government had failed to state in their order declining to make a reference that they were satisfied that the punishment was not excessive. Even so, the Bench held that it was open to the Government to satisfy the Court that they had taken into consideration the nature of the punishment awarded before declining to make a reference. The Bench has expressed its view in the following manner.


"The fact that the Government did not state in the order declining to make 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 questi

on and were of the opinion that the punishment was not disproportionate. In fact, in paragraph 3 of the counter-affidavit filed by the Government, the Government have clearly stated that having regard to the nature of the misconduct, the punishment could not be held to be disproportionate.But simply because the Government stated that the application of section11-A of the Act would 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. As it is apparent from the counter affidavit filed by the Government, the Government did consider the question whether the punishment was disproportionate or not and only after such consideration declined to make a reference." * 8. Viewing the matter in this perspective, we find that the Government had taken into consideration the nature of the punishment awarded to the workman before declining to make a reference. We are, therefore, clearly of opinion that there are no grounds for quashing the impugned order of the Government. The learned single Judge's order is set aside and the writ appeal will stand allowed. Consequently, the writ petition will stand dismissed. There will be no order as to costs.