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TMI Blog2023 (8) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... open for the appropriate Government, while exercising the powers under Section 10 (1) of the Act to decide the question whether the claim of the workman is stale or not. Hence, it is clear that the delay and latches itself cannot be a ground for refusing to make a Reference. If a person is guilty of delay and latches, it may be a ground for the Labour Court, either to refuse to grant any relief or refuse to grant relief of back wages. The Government cannot take up the role of an Adjudicating Authority while deciding the question as to whether a Reference should be made or not. While referring the dispute, the appropriate Government can formulate the question of Delay Latches to be decided by the Labour Court as a preliminary issue while simultaneously also making a reference on the industrial dispute to be decided on secondary issue. The impugned order is quashed and set aside, the Government is directed to make a Reference of the dispute - Petition disposed off. - Hon'ble Mr. Justice Anoop Kumar Dhand For the Petitioner : Mr. Kan Singh Rathore. For the Respondent : None. ORDER 1. The legal issues involved in this petition is Whether appropriate Government can refuse to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention, he has placed reliance upon the following judgments:- 1. Ajaib Singh Vs. Sirhind Co-op. Marketing-Cum-Processing Service Society Limited reported in 1999(2) SCT 667. 2. Raghubir Singh Vs. General Manager, Haryana Roadways reported in 2014 (10) SCC 301 7. Heard and considered the submissions. 8. Perusal of the material available on the record indicates that by passing the impugned order dated 19.12.2011, the appropriate Government has refused to refer the dispute to the Labour Court on the ground of delay and treated the dispute of the petitioner as Stale Claim . 9. Before proceeding further to deal with the issue in question it would be gainful to quote the relevant provision contained under Section 10 of the Act of 1947 which deals with Reference of disputes to Boards, Courts and Tribunal. Section 10 reads as under: 10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing (a) (refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing represent the majority of each party, shall make the reference accordingly,- (2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government: Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months: Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit: Provided also that in computing any period specified in this sub- section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal. Explanation.-- In this sub-section, Labour Court or Tribunal includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State. (7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government. (8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appropriate Government is precluded from considering even prima facie merit of the dispute when it decides the question as to whether its power to make a reference should be exercised. It was further held that if the claim made is patently frivolous or is clearly belated, the appropriate Government may refuse to make reference. 13. In Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others, (1989) 3 SCC 271, the Supreme Court held that though while considering the question of making a reference under Section 10 (1), the Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended , but it is not entitled to adjudicate the dispute itself on its merits. While exercising power under Section 10 (1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function. It therefore cannot delve into the merits of the dispute and take upon itself the determination of the lis. The question whether the persons raising the dispute were workmen or not, cannot be decided by the Government in exercise of its administrative function under Section 10 (1) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference of the dispute, restricted the back wages from the date of issuance of notice of demand till the date of award by the Labour Court to the extent of 60% and awarded full back wages only after succeeding period. 18. Under challenge before the Supreme Court in Nedungadi Bank Ltd. vs K.P. Madhavankutty and Ors, (2000) 2 SCC 455 was judgment of the Division Bench of Kerala High Court, which had allowed the appeal filed by the workmen and set aside the judgment of the learned Single Judge, whereby the writ petition filed by the Bank was allowed by quashing the reference made by the Central Government under Section 10 of the Industrial Disputes Act (for short, the Act ). The Supreme Court held that even though there is no statutory limitation period for making reference of industrial dispute, but such powers should be exercised reasonably and in a rational manner and not in a mechanical fashion. When a dispute becomes stale would depend upon the facts and circumstances of each case. The following observations of the Supreme Court in para-6 are worth quoting:- 6. Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation? 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 Governments 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 when the reference was made by the Government it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference. 9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram, (2006) 5 SCC 433, the Supreme Court held that so far as delay in seeking reference is concerned, no formula of universal application can be laid down for determination of the said question, it would depend on facts of each individual case. In Asstt. Engineer, CAD, Kota vs. Dhan Kunwar, (2006) 5 SCC 481, also the Supreme Court held that it may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on the facts of each individual case. 23. The Supreme Court in Rashtriya Chemicals Fertilizers Ltd. And another vs. General Employees' Association and others, (2007) 5 SCC 273, held that the High Court cannot straightway direct the appropriate government to refer the dispute. It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. 24. The Supreme Court in Krisihi Utpadan Mandi Samity, Manglor vs. Pahal Singh, (2007) 12 SCC 193 was dealing with a case where industrial dispute had been raised 18 years after the date of retrenchment. The Labour Court declared the termination of the services by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (hereinafter referred to as 'the Act'), it is not as if the Government has to act as a post office by referring each and every petition received by them. The Government is well within its jurisdiction to see whether there exists a dispute worth referring for adjudication. No doubt, the Government is not entitled to enter a finding on the merits of the case and decline reference. The Government has to satisfy itself, after applying its mind to the relevant factors and satisfy itself to the existence of dispute before taking a decision to refer the same for adjudication. Only in case, on judicial scrutiny, the court finds that the refusal of the Government to make a reference of the dispute is unjustified on irrelevant factors, the court may issue a direction to the Government to make a reference . 27. The issue and the controversy involved in this petition has already been decided by the Larger Bench of the Himachal Pradesh High Court in the case of Shri Jai Singh Vs. State of H.P. and Others CWP No. 2190/2020 by answering this issue in Para 28 which reads as under: 28. Following principles of law can, therefore be culled out from series of the precedents discussed above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence or apprehension of the dispute is conditioned by the effect of the delay on the liveliness of the dispute. x) That the appropriate Government in arriving at the decision to make a reference of industrial dispute or otherwise, in the context of delay, may examine whether the workman or the Union has been agitating the matter before the appropriate fora so as to keep the dispute alive, which however, does not necessarily mean that in a case where such action has not been initiated, the dispute has ceased to exist. xi) That the appropriate Government can, as per Section 10(1) of the Act, take a decision on the question of making reference at any time , thus implying that there is no limitation in taking such decision and the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to such proceedings. xii) That the appropriate Government while taking a decision on the question of making reference, need not provide an elaborate opportunity of hearing to the workman but it is under an obligation to consider his explanation for delay in making the demand. xiii) That in cases where the appropriate Government while examining the question of making a refere ..... 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