# PREM KAKAR v. STATE OF HARYANA AND ANR

- **Citation:** [1976] 3 S.C.R. 1010
- **Court:** Supreme Court of India
- **Decided:** 1976-04-05
- **Case number:** Civil Appeal No. 119 of 1975
- **Bench:** A. N. Ray, )Aswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-kakar-v-state-of-haryana-and-anr-6605
- **Pages:** 3

## Headnote

Writ of Manda1nus-Whether Rule Nisi can be issued to co1npel the State
to n1ake a reference uls 10(1) of the Industrial Disputes Act-Art 226 fl/ the
Constitutio11-lnd11strial Dfaputes Act, Ss. 10(1) and 12(5)-Scope of.
Under section 12(5) read with 10(1) of the JndJJstrial Disputes Act, if on
consideration of a failure rep_ort u/s 12 ( 4) from the conciliation officer, the
appropriate Government is satisfied and is of opinion that there is an industrial
dispute and a case for reference, it may make such reference to the labour court.
On considering the "failure report", of the conciliation proceedings in respect ~
of the appellant, an Electrical foreman, the respondent state informed him ~
that his duties being supervisory with wages more than Rs. 500/ - his ca'ic was
not covered by the definition of the terms "workrnan" under the Industrial
Disputes Act and therefore, not a fit case for adjudication.
·rhe appellant
assailed the said orders under Art. 226, which was dismissed.
On appeal by special leave the appellant contended that the question whether
an employee is a workman or not was a disputed question of fact and law
and,
therefore could only be decided by a Jabour court and on a reference
only; but-not by the State Gover:riment \vhile exercising its powers u/s 12(5).
Dismissing the appeal, the Court
HELD : (1) The order of the Government acting under s. 10(1) read \Vith
section 12(5) of the Industrial Disputes Act passed after subjective satisfaction
is an administrative order and not a judicial or a quasi-judicial one. [1012A]
Stae of Madras v. C. P. Sarathy, [1953] S.C.R. 334 and State of Bon1bay
v. K. P. Krishnan & Ors. [1961] I S.C.R. 227 [followed].
(ii) In entertaining 'OO application for a writ of lnandarnus against an order
made by the appropriate Government under section 10(1) read with s. 12(5)
of the Act the court does not sit in appeal over the order and is not entitled
to consider the propriety or the satisfactory character of the reasons.
If it
appears from the reasons j;!;iven 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 mandanuts.
[1012-A-C]
Bo1nbay Union of Journalists & Ors. v. The State of Bolnbay & A~1r. [1964]
•
6 S.C.R. 22 (followed).
G

## Text

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1010
PREM KAKAR
v.
STATE OF HARYANA AND ANR.
April 5, 1976
[A. N. RAY, C.J. AND )ASWANT SINGH, J.)
Writ of Manda1nus-Whether Rule Nisi can be issued to co1npel the State
to n1ake a reference uls 10(1) of the Industrial Disputes Act-Art 226 fl/ the
Constitutio11-lnd11strial Dfaputes Act, Ss. 10(1) and 12(5)-Scope of.
Under section 12(5) read with 10(1) of the JndJJstrial Disputes Act, if on
consideration of a failure rep_ort u/s 12 ( 4) from the conciliation officer, the
appropriate Government is satisfied and is of opinion that there is an industrial
dispute and a case for reference, it may make such reference to the labour court.
On considering the "failure report", of the conciliation proceedings in respect ~
of the appellant, an Electrical foreman, the respondent state informed him ~
that his duties being supervisory with wages more than Rs. 500/ - his ca'ic was
not covered by the definition of the terms "workrnan" under the Industrial
Disputes Act and therefore, not a fit case for adjudication.
·rhe appellant
assailed the said orders under Art. 226, which was dismissed.
On appeal by special leave the appellant contended that the question whether
an employee is a workman or not was a disputed question of fact and law
and,
therefore could only be decided by a Jabour court and on a reference
only; but-not by the State Gover:riment \vhile exercising its powers u/s 12(5).
Dismissing the appeal, the Court
HELD : (1) The order of the Government acting under s. 10(1) read \Vith
section 12(5) of the Industrial Disputes Act passed after subjective satisfaction
is an administrative order and not a judicial or a quasi-judicial one. [1012A]
Stae of Madras v. C. P. Sarathy, [1953] S.C.R. 334 and State of Bon1bay
v. K. P. Krishnan & Ors. [1961] I S.C.R. 227 [followed].
(ii) In entertaining 'OO application for a writ of lnandarnus against an order
made by the appropriate Government under section 10(1) read with s. 12(5)
of the Act the court does not sit in appeal over the order and is not entitled
to consider the propriety or the satisfactory character of the reasons.
If it
appears from the reasons j;!;iven 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 mandanuts.
[1012-A-C]
Bo1nbay Union of Journalists & Ors. v. The State of Bolnbay & A~1r. [1964]
•
6 S.C.R. 22 (followed).
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CIVIL APPELLATE JURISDICTION: Civil
Appeal
No.
119
of
1975.
~
H
Appeal by Special leave from the Judgment
and
order
15-4-1974 of the Punjab and Haryana High Court in Civil
Petition No. 4289 of 1973.
N. N. Goswami and Arvind Minocha for the Appel!ant.
dated
Writ
G. B. Pai, S. R.
Agarwal, Parveen Kumar and Khaitan & Co.
for Respondent No. 2.
•
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PREM KAKKAR v. HARYANA (Ray, C.J.)
10J1
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The Judgment of the Court was delivered by
' .-
RAY, C.J.-This appeal by special leave turns on the
question
•
whether the State can be asked by a writ of mandamus to make a
reference under section 10(1) of the Industrial Disputes Act (herir
inafter referred to as the Act).
The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd.
The services of the appellant were terminated on 4th September, 1972. · The appellant thereafter demanded
reinstatement.
The Conciliation Officer started conciliation proceedings under section 12 of the Act.
No settlement could be arrived
at.
The Conciliation Officer sent a report to the State Government
under section 12 ( 4) of the Act.
The State Government by letter
dated 7 June, J 973 informed the appellant that the Government had
considered the appellant's case not fit for reference to the Labour
Court for adjudication.
The Government in the letter stated as follows :
"The Government have not found your case
fit
for
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adjudication to a Labour Court because you were working
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as an Electrical Foreman in this concern, which
was a
supervisory job and your wages were more than Rs. 5001per month.
Therefore, your case is not covered by
the
definition of the terms "Workman" given in the Industrial
Disputes Act."
The appellant under Article 226 of the Constitution applied for
a writ of mandamus directing the State to make a reference.
The
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High Court dismissed the application.
The appellant contended that the question whether the appellant
was a workman was a disputed question of fact and law which could
be decided only by an awropriate Labour Court.
The appellant also
submitted that if the dispute in question raises questions of law the
appropriate Government should not give a final decision on
the
F
question. ' In short, the appellant's contention is that
the
issue
whether the appellant is a workman or not could only be decided by
the "Labour Court and, therefore, reference should have been made.
Under Section 10 of the Act where the appropriate Government
is of opinion that any industrial dispute exists or is apprehended, it
may at any time refer the dispute, inter alia, to a National Tribunal
for adjudication .
Section 12 of the Act deals with duties of Conciliation Officers.
If the Conciliation Officer cannot arrive at a settlement of the dispute
he sends a report to the appropriate Government.
Under seclion
12(5) of the Act 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, it may make· su~h reference.
Where the
appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor .
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1012
SUPREME COURT REPORTS
(1976] 3 S.C.R.
A
This Court in State of Madras v. C. P. Sarathy(') and State vf
Bombay v. K. P. Krishnan & Ors.(') held that the order of
the
Government acting under section 10(1) read with section 12(5) of
the Act is an administrative order and not a judicial or a quasi-judicial
one.
In
Bombay
Union of Journalists & Ors. v. The State
of
B
Bombay and Anr.(') this Court said that in entertaining an application
for a writ of mandamus against an order made by the appropria'.c
Goverrunent under section 10(1) read with section 12(5) of
the
Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of
the
reasons given by the Government. If it appears that the reasons
given show that the appropriate Government took into account any
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consideration irrelevant or foreign, then the Court may in a given
case consider the case on a writ of mandamus.
In K. P. Krishnan's case (supra) the issues in dispute related to
~
a claim of classification for specified employees and additional bonus
and the sole ground on which the Government refused to refer the
dispute for adjudication under section 12(5) of the Act was that the
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employees had adopted go-slow tactics during the relevant year. The
facts were that the company had nevertheless voluntarily paid three
months' bonus for that year and the report of the Conciliation Officer
was in favour of the employees.
This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.
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In the present case, the fact is that the Government found that
the appellant was not a workman within the definition of workman
•
in the Act, and, therefore, it was not a fit case for reference
for
"
adjudication.
The High Court rightly rejected the application.
The appeal is"
therefore, dismissed.
Parties will pay and bear their own costs.
S.R.
(1) [1953] S.C.R. 334.
(2) [1961] 1S.C.R.227.
(3)
[19641 6 S.C.R. 22.
Appeal dimissed-
.;