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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 ..... than fourteen years. On the facts of this case, the High Court has held that there was no 'live' dispute and even when no period of limitation is provided for raising the disputes under the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') and provisions of the Limitation Act, 1963 are not applicable, there could not have been a reference at such a belated stage, inasmuch as, after a lapse of such abnormal time, the dispute ceases to exist and, therefore, the appropriate Government had no jurisdiction or power to make a reference of a non-existent dispute. The Petitioner has questioned the appropriateness of this view taken by the High Court. 3. Primary submission of the learned Counsel appearing for the Petitioner is that once it is accepted that the law of limitation does not apply, the Government could make the reference even if the dispute was raised belatedly and in such circumstances power of the Labour Court is to mould the relief. In support of this contention, learned Counsel referred to the judgment of this Court in Raghubir Singh v. General Manager, Haryana Roadways, Hissar, 2014 10 SCC 301. In order to appreciate the aforesaid content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of his own was negatived by the Labour Court with the reason that no person would give up the work easily without any cause and as the Petitioner had not got any alternate employment anywhere, the question of leaving his job by himself did not arise. Insofar as the issue of raising the dispute belatedly is concerned, the Labour Court held that even if there was a delay of fourteen years, only relief was required to be moulded because of that reason. Thus, the Labour Court ordered reinstatement, but denied back wages or other benefits. For this purpose, the Labour Court referred to the judgment of this Court in Sapan Kumar Pandit v. U.P. State Electricity Board and Ors., 2001 6 SCC 222. 6. As pointed out above, the writ petition preferred by the Management against this award was dismissed by the Single Judge of the High Court. Against the order of dismissal passed by the learned Single Judge, the Management preferred writ appeal, which has been allowed by the Division Bench vide impugned judgment dated June 06, 2011. This special leave petition is preferred challenging the said judgment and there is also a delay of 1438 days in filing the same. 7. From the facts narrated above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and circumstances brought to its notice, in its subjective opinion that an 'industrial dispute' exists or is 'apprehended'; (ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide; (iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and (iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction Under Article 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended." These propositions were based on unamended Act which did not contain the words 'where the appropriate Government is of the opinion'. 10. In Western India Match Co. Ltd. v. The Western India Match Company Workers Union and Ors., 1970 1 SCC 225., this Court took support of C.P. Sarathy's case (Note 3 above) to hold that function of the appropriate Government to make reference Under Section 10(1) is an administrative function. This view that the appropriate Government is performing an administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the Court to exercise its power of judicial review and to determine whether, in fact, there was any material before the 'appropriate Government' and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was apprehended and it was expedient to make the reference. Therefore, an order of reference is open to judicial review if it is shown that the appropriate Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration. 14. Likewise, when the appropriate Government refuses to make reference, it is also amenable to judicial review if it is shown that the appropriate Government did not take into consideration the relevant material which could show existence or apprehension of industrial dispute or if it is shown that the reasons for refusing to make reference are irrelevant or not germane to the formation of opinion. 15. It has been held in catena of judgments that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate Government refuses to make reference, such a refusal can be challenged in the court of law. Conversely, which is equally true, if the reference is made even when no dispute exists or is apprehended, such a reference will also be subject to judicial review. 17. We may refer to the judgment in the case of The Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors., 2000 3 SCC 93 In that case, the "appropriate Government" refused to make a reference on the ground that the concerned employee who had raised the dispute was not 'workman' within the meaning of Section 2(s) of the Act. While doing so, the Government considered the salary and allowances drawn by the employee as well as the nature of work performed by him, including his power to sanction expenses incurred by his Office. The concerned employee (Respondent in the said case) filed a writ petition against the order of the appropriate Government refusing to make reference and the High Court in that writ petition directed the Government to make the reference as to whether he was a workman. Appeal filed by the Appellant therein was also dismissed and in these circumstances the Appellant preferred Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court. 19. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power Under Section 10 of the Act, such a power could not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture. 20. As early as in 1959, this Court in the case of Shalimar Works Ltd. v. Their Workmen, 1960 1 SCR 150 pointed out that there is no limitation prescribed in making a reference of disputes to Industrial Tribunal Under Section 10(1) of the Act. At the same time, the Court also remarked that the dispute should be referred as soon as possible after they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence. xxx 13. It is true that where a Government reconsiders its previous decision and decides to make the reference, such a decision might cause inconvenience to the employer because the employer in the meantime might have acted on the belief that there would be no proceedings by way of adjudication of the dispute between him and his workmen. Such a consideration would, we should think, be taken into account by the Government whenever, in exercise of its discretion, it decides to reopen its previous decision as also the time which has lapsed between its earlier decision and the date when it decides to reconsider it. These are matters which the Government would have to take into account while deciding whether it should reopen its former decision in the interest of justice and industrial peace but have nothing to do with its jurisdiction Under Section 4(k) of the Act. Whether the intervening period m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d incompetent. 7. In the present appeal it is not the case of the Respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the Respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power Under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question. 8. It was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the difference between these two provisions does not relate to the points at issue in this case. Though no time limit is fixed for making the reference for a dispute for adjudication, could any State Government revive a dispute which had submerged in stupor by long lapse of time and rekindled by making a reference of it to adjudication The words "at any time" as used in the section are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this Sub-section itself to indicate that the time has some circumscription. The words "where the Government is of opinion that any industrial dispute exists or is apprehended" have to be read in conjunction with the words "at any time". They are, in a way, complimentary to each other. The Government's power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression "at any time" terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused. (d) Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference. 27. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espective contentions. 32. To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term: 'Dispute': "to argue about, to contend for, to oppose by argument' to call in question - to argue or debate (with about or over), - a contest with words; an argument; a debate; a quarrel; 33. Blacks law dictionary, 5th Edition, page 424 defines 'dispute' as under: "A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined." 34. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an 'industrial dispute' cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation Act. 38. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong. 39. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dispute is raised after a long period, it has to be seen as to whether such a dispute still exists Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 42. To summarise, although there is no limitation prescribed under the Act for making a reference Under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry. 43. On the application of 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 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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