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TMI Blog2015 (9) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a non-existing dispute. - SLP (C) No. 27080 of 2015 - - - Dated:- 7-9-2015 - A. K. Sikri And Rohinton Fali Nariman JJ. JUDGEMENT A. K. Sikri, J. 1. Delay condoned. This special leave petition arises from the judgment dated June 06, 2011 passed by the High Court of Karnataka, Circuit Bench at Dharwad, whereby writ appeal of the Respondents (hereinafter referred to as the 'Management') herein was allowed resulting in setting aside the award of the Labour Court directing reinstatement of the Petitioner herein in service without back wages and other benefits, even when the said order was upheld by the Single Judge of the said High Court in the writ petition filed by the Management challenging the award. 2. We may state at the outset that the main factor with which the High Court has been influenced is that the Petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter on one pretext or the other and when they ultimately told him that they would not reinstate him into service, he had no alternative but to raise the industrial dispute. The conciliation proceedings have started, which ended in failure. Thereafter, the appropriate Government referred the matter regarding validity of termination of the Petitioner for adjudication. 5. The Management had taken a specific plea in the conciliation proceedings as well as before the Labour Court that such a reference was not competent and the Petitioner was not entitled to any relief when he had raised the dispute after fourteen years of his termination. On merits it was pleaded that the Management had not terminated the services and, in fact, it is the Petitioner who left the services. Various issues were framed by the Labour Court, which included a specific issue as to whether any relief could be given when the dispute was raised after fourteen years of alleged termination. After the evidence was led, the Labour Court passed the award holding that the Petitioner had worked for more than 240 days and his services were terminated by the Management without complying with the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viving Or whether it can be said that dispute does not exist when the concerned workmen after his say termination kept quiet for number of years and thus acquiesced into the action 9. Before we proceed to deal with the aforesaid questions, it would be proper to discuss the power of 'appropriate Government' Under Section 10 of the Act in referring or refusing to refer the dispute for adjudication. It is a peculiar position provided under the Act that an aggrieved workman cannot approach the Labour Court or Industrial Tribunal directly for adjudication of 'industrial dispute'. Except those cases falling Under Section 2A of the Act, he has to seek reference of dispute to Labour Court/Industrial Tribunal Under Section 10 of the Act. 'Appropriate Government', as defined Under Section 2(a) of the Act, is empowered to refer the dispute. Section 10(1) stipulates that 'appropriate Government' may, at any time, by order in writing, refer the dispute to a Board, Labour Court or Industrial Tribunal where 'it is of the opinion that any industrial dispute exists or is apprehended'. Interpreting this Section, way back in the year 1953, this Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. 13. When the 'appropriate Government' makes a reference of an industrial dispute for adjudication, it does not decide any question of fact or law. The only condition, which the exercise of that power should satisfy, is that there should be the existence or apprehension of an industrial dispute. When once the Government is satisfied about this question, it acquires jurisdiction to refer the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that the industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or claim is frivolous or bogus or put forth extraneous and relevant reasons not for justice of industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the administrative determination is based on the relevant, extraneous or grounds not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review. 16. From the aforesaid discussion, it clearly follows that even when making a reference by the appropriate Government is an administrative act, before making such a reference it has to form an opinion as to whether any industrial dispute exists or is apprehended. While forming this opinion, the appropriate Government is supposed to take all relevant facts into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable, wherever possible, for the Government to indicate the nature of dispute in the order of reference; (ii) the order of the appropriate Government making a reference Under Section 10 of the Act is an administrative order and not a judicial or quasijudicial one and the Court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order; (iii) an order made by the appropriate Government Under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government; (iv) if it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus and; (v) it would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act. 18. At this stage, it may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression at any time , though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can at any time , i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression at any time thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay: 6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers Under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the Respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference Under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made Under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference In question was made. The only ground advanced by the Respondent was that two other employees who were dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in Its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference. 24. Even in Sapan Kumar Pandit (Note 2 above), the Court emphasized that limitation period for making the reference is co-extensive with the existence of dispute, meaning thereby that the dispute should be alive on the day when the decision was taken to make a reference or to refuse to make reference. In the facts of that case, the Court found that dispute remained alive and, therefore, reference was legally made. What is significant is that the Court in that judgment interpreted the words 'at any time' occurring in Section 10 of the Act and clarified that though these words, prima facie, indicate that there is no time limit for making the reference, but such a meaning cannot be assigned to these words and the real test is the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Government, there existed such a dispute. 25. In Raghubir Singh v. General Manager, Haryana Roadways, Hissar, 2014 10 SCC 301, this Court scanned through most of the available case law on the subject and emphasized that the words 'at any time' occurring in Section 10 of the Act would imply that law of limitation did not apply. On facts, the Court held that the State Government had rightly exercised its power and referred the dispute to Labour Court within reasonable time considering circumstances in which the Appellant therein was placed. In fact, the Court accepted the explanation for delay given by the workman in raising the dispute. In that case, it was found that there was a criminal case pending against the workman and further the Management had assured him that he would be reinstated on his acquittal. It was also noticed that even despite delay, there was no loss or unavailability of evidence due to the said delay. 26. The aforesaid case law depicts the following: (a) Law of limitation does not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senti when the reference is sought. To put it otherwise, if it no longer remains an industrial dispute or industrial dispute 'does not exist' at that time, there would not be any question on making reference or adjudicating the matter as it is not an industrial dispute. 29. Section 2(k) of the IDA defines 'industrial dispute' and it reads as under: 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons; 30. As per Section 2A dispute relating to discharge, dismissal, retrenchment or termination of an individual are also deemed as industrial dispute and, therefore, an individual is given right to raise these disputes. 31. The term 'industrial dispute' connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression 'dispute or difference' as used in the definition, therefore, means a controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that workmen, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a 'dispute' what had otherwise become a buried issue. 35. Let us examine the matter from another aspect, viz. laches and delays and acquiescence. 36. It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity delay defeats equities . 37. This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no industrial dispute within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted. 41. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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