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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 ..... 985 and worked on that post till 28.12.1986. His attendance was marked in muster rolls and he has worked for more than 240 days in a calendar year but on 28.12.1986 his services were terminated orally without any notice or payment of one month's wages. It was pleaded that no seniority list was prepared. Hence, his services were terminated against the provision of the Industrial Disputes Act, 1947 (for short, 'the Act of 1947'). The case of the petitioner is that he was illiterate and he requested the respondent/employer to reinstate him back in service but except assurance no steps were taken for getting him back in service. 4. The reconciliation proceedings were conducted between the parties but both parties decided to stick to their stands, hence, the reconciliation failed on 27.06.2011 before the Labour Industrial Jaipur Region, who referred the matter to the appropriate Government to proceed further vide its letter dated 19.07.2011. 5. The appropriate Government refused to refer the dispute to the Labour Court/Industrial Tribunal on the ground of delay and latches as the dispute was referred after a delay of 24 years and no reasonable explanation of this inordinate delay was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government may, if it so thinks fit, make the reference to a Labour Court under clause (c): Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. (1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an industrial dispute to a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be] shall confine its adjudication to those points and matters incidental thereto. (5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal] under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments. (6) Where any reference h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d others AIR 1960 SC 1223, which held that Section 10 (1) of the Act confers wide and even absolute discretion, on the Government either to refer or to refuse to refer, an industrial dispute. An obligation is imposed on the Government to refer the dispute unless of course it is satisfied that the notice is frivolous, or vexatious or that considerations of expediency required that a reference should not be made. However, while making an order refusing to make reference, the appropriate Government is not expected to consider factors which are extraneous or irrelevant or not germane. Even in dealing with the question as to whether or not it would be expedient to make a reference, the Government must not act in punitive spirit but must consider the question fairly and reasonably and take into account only relevant facts and circumstances. This judgment was followed by the Supreme Court later in Madhya Pradesh Irrigation Karamchari Sangh vs. State of M.P. and another, (1985) 2 SCC 102 and V. Veeranajan and others vs. Government of Tamil Nadu, (1987) 1 SCC 479. 12. In Bombay Union of Journalists and others vs. the State of Bombay and another, AIR 1964 SC 1617, the Supreme Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en vs. I.I.T.I. Cycles of India Ltd. and others, (1995) Supp (2) SCC 733, the Supreme Court held that it is not obligatory on the part of the appropriate Government to make a reference of a dispute in each and every case where the reference is sought as the Government has to weigh the facts keeping in mind the objective of industrial peace and smooth industrial relations between the parties and where the reasons given by the Government for not making the reference, are found to be relevant, the Courts cannot interfere. 16. In Mohamad Kavi Mohamad Amin vs. Fatmabi Ibrahim, (1997)6 SCC 71, the Supreme Court held that wherever a power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time. In N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123, the Supreme Court held that a legal remedy cannot be kept alive for unreasonable period even if the statute does not provide for any limitation. 17. In Ajaib Singh vs. Sirhind Cooperative Marketing-cum- Processing Service Society Limited and another, (1999) 6 SCC 82, the Supreme Court held that even in cases of prolonged delay, relief can be moulded by declining whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence 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 from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent." 19. In Sapan Kumar Pandit vs. U.P. State Electricity Board and others, (2001) SCC 222, the judgment of High Court of Allahabad was challenged before the Supreme Court, which quashed the reference order passed by the appropriate Government on the ground of delay of 15 years. The Supreme Court held that the limitation period for making reference of industrial dispute is coextensive with the existence of dispute. The opinion as to the existence of the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute existed then the Government could make the reference. The only 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. 20. In S.M. Nilajkar and Ors. vs. Telecom District Manager, Karnataka, (2003) 4 SCC 27, the argument of the respondents before the Supreme Court was that on account of mere delay in raising the dispute by the appellants workmen, the High Court was not justified in denying the relief to them. Although, the Supreme Court upheld that argument in the facts of the case, yet relying on its earlier decision in Shalimar Works Ltd. vs. Workmen, AIR 1959 SC 1217, the Supreme Court held that merely because the Industrial Disputes Act does not provide for limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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, (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. 26. In Rahaman Industries Private Limited vs. State of Uttar Pradesh and others, (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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm 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, the appropriate Government is not entitled to adjudicate the dispute itself on merits. 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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. 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." 28. The intention of the legislature is to be gathered from the words used under Section 10 (1) of the Act of 1947, therefore, it is not open for the appropriate Government to travel beyond the intention of the legislature and it could not be presumed that the legislature has committed mistake in not providing limitation period while interpreting the statutory provision. Thus, it can safely be held that it would not be 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. 29. Hence, it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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