Bundi vs Labour, Secretariat, Jaipur, Rajasthan.

: Mr. Saumil Sharma for Mr. Gopal Krishan Sharma, Addl. GC JUSTICE ANOOP KUMAR DHAND Order 14/02/2025

1. By way of filing this writ petition, a challenge has been led to the impugned order dated 28.01.2010 passed by the respondents by which the competent authority has refused to make reference of the industrial dispute of the petitioner to the Labour Court for its adjudication on merits and demerits.

2. By passing the order impugned, the competent authority has acted as an Adjudicating Authority.

3. The issue involved in this writ petition has already been decided by this Court in the case of Gopiram Yadav Vs. State of (2 of 7) [CW-13203/2010] Rajasthan and Ors. while deciding S.B. Civil Writ Petition No. 11575/2019 on 17.08.2023 wherein it has been held in para 24, 25, 26 and 27 which reads as under:-

24. The Supreme Court in Krisihi Utpadan Mandi Samity, Manglor vs. Pahal Singh, reported in (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 the management as illegal and directed reinstatement of the workman with continuity of service and backwages. The Supreme Court held that the Labour Court is under an obligation to consider as to whether any relief, if at all could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years. The Supreme Court held that it is well settled principle of law that "delay defeats equity". It was further held that the Labour Court exercises its wide jurisdiction under Section 11-A of the Industrial Disputes Act, but such jurisdiction must be exercised judiciously. A relief of reinstatement with all back wages is not to be given without considering the relevant factors therefore, only because it would be lawful to do so. The Supreme Court set aside the judgment of the High Court and allowed the appeal.

25. In State of Karnataka and another vs. Ravi Kumar, reported in (2009) 13 SCC 746, the Supreme Court held that delay of 14 years in seeking reference and challenging the order of termination was fatal because the person supervising could be expected to prove after 14 years that the respondent did not work or that he did not work for 240 days in a year or that he voluntarily left the work. Since the reference was stale, it ought to have been rejected on that ground alone. Holding thus, the Supreme Court set aside the judgment of the High Court and restored the award of the Labour Court which rejected the reference. (3 of 7) [CW-13203/2010]

26. In Rahaman Industries Private Limited vs. State of Uttar Pradesh and others, reported in (2016)12 SCC 420, challenge before the Supreme Court was made to the order of the High Court giving peremptory direction to the appropriate Government to refer the dispute raised by the workmen for adjudication. It was argued that the order of the High Court has virtually taken away the discretion on the part of the Government to look into the issue as to whether there is a referable dispute at all. Upholding the argument, the Supreme Court held that 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. In Para-3 the Supreme Court held as under:- "3. We find force in the submission made by the Learned Counsel. In the scheme of the Industrial Disputes Act, 1947 (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 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 (4 of 7) [CW-13203/2010] 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, as to the effect of delay in demanding/making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Act:- i) That the function of the appropriate Government while dealing with question of making reference of industrial dispute under Section 10(1) of the Act, is an administrative function and not a judicial or quasi judicial function. ii) That the Government before taking a decision on the question of making reference of the industrial dispute has to form a definite opinion whether or not such dispute exits or is apprehended. iii) That whether or not the industrial dispute exists or is apprehended in the meaning of Section 10(1) of the Act can be decided by the appropriate Government alone and not by any other authority including by this Court. iv) That the appropriate Government in discharging the administrative function of taking a decision to make or refuse to make, reference of the industrial dispute under Section 10(1) of the Act, has to apply its mind on relevant considerations and has not to act mechanically as a post office. v) That while forming an opinion as to whether the industrial dispute exists or is apprehended, appropriate Government is not entitled to adjudicate the dispute itself on merits. (5 of 7) [CW-13203/2010] vi) That the delay by itself does not denude the appropriate Government of its power to examine advisability of making reference of the industrial dispute but the delay would certainly be relevant for deciding the basic question whether or not the industrial dispute "exists" which also includes the decision to find out whether on account of delay the dispute has ceased to exist or has ceased to be alive or has become stale or has faded away. vii) That whether or not a dispute is alive or has become stale or non-existent, would always depend on the facts of each case and no rule of universal application can be laid down for the same. viii) That even if Section 10(1) of the Act empowers the appropriate Government to form an opinion "at any time" on the question whether any "industrial dispute" "exists or is apprehended", and there is no time limit prescribed for taking such a decision, yet such power has to be the appropriate exercised by Government within a reasonable time. ix) That the period for making reference of industrial dispute is co-extensive with the existence of dispute because the "existence" factum of 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 asto keep the dispute alive, which (6 of 7) [CW-13203/2010] 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 examining the question of making a reference of industrial dispute arrive sat a decision that the question that on account of delay the dispute has ceased to exist or alive, would require elaborate examination of the evidence, it may while making a reference of the industrial dispute, additionally formulate question on this aspect to be decided as preliminary simultaneously also making a reference on the industrial dispute to be decided as secondary issue. xiv) That even in a case where reference has been made to the Industrial Court after prolonged delay, such Court would be entitled to mould the relief by declining whole or part of the back wages. (7 of 7) [CW-13203/2010] xv) That even when a reference is made by appropriate Government in a case after huge and enormous unexplained delay, the industrial Court would be entitled to return the reference since such Court judiciously exercises its wide jurisdiction under Section 11-A of the Industrial Disputes Act and is under obligation to consider whether in such like situation any relief at all could be granted to the workman.”

4. Accordingly, the writ petition stands disposed of in light of similar directions passed by this Court in the case of Gopiram Yadav (Supra) and in consequence thereof, the impugned order is quashed and set aside. The appropriate Government is directed to make the reference of the dispute. It is expected from the authority concerned to dispose of the dispute within a period of one month from the date of receipt of certified copy of this order.

6. Pending application(s), if any, also stand disposed of. Since the petitioner has remained unrepresented before this Court, Office is directed to send a copy of this order to the petitioner on his residential address mentioned in the memo of writ petition for their intimation/information. Karan/74 (ANOOP KUMAR DHAND),J