1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO. 256/2005 (Hukam Singh Vs. State of Rajasthan & Ors.) Date of Order : 17/04/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. Mukesh Vyas for the petitioner. Mr. B.L.Tiwari, Deputy Government Advocate for respondents. BY THE COURT:- Aggrieved by the order Annex.2 dated 23.08.2004 passed by Deputy Secretary to the Govt. of Rajasthan, Labour Department, Jaipur holding therein that the dispute has been raised after a lapse of 15 years, no justifiable reasons have been given for raising the dispute belatedly and the dispute does not appear to exist, the petitioner has filed the instant writ petition under Article 226 and 227 of the Constitution of India. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the petitioner was appointed by the respondent No.3 as Cattle-guard in the month of January, 1980 as daily wages labourer and continued to serve the respondents till 31st May, 1986 when his services were terminated by an oral order. The petitioner made an application before the Conciliation Officer raising industrial dispute, who in turn, on failure of the 2 conciliation proceedings, made a failure report and sent the same to the respondent No.1. The respondent No.1 instead of making a reference under Section 10 of the Industrial Disputes Act, 1947 (for short 'the ID Act' hereinafter) held that the dispute has been raised after a lapse of 15 years without any justification for raising the dispute belatedly and the dispute does not appear to exist. A reply to writ petition has been filed by respondents wherein respondents have contended that Appropriate Govt. was justified in not making such a belated reference. Learned counsel for the petitioner has contended that there is no period of limitation prescribed for making reference under Section 10 of the ID Act and therefore, it was not open for the respondent to decline to make the reference. It was also contended that what was required to be seen by the respondent is as to whether the industrial dispute is in existence on the date of reference for adjudication and if the answer is positive, the Govt. ought to have exercised the power whatever be the length of period which elapsed since inception of the dispute. Learned counsel further submits that in identical matters filed by Chatura Ram and Bhanwara Ram, the respondent No.1 made reference to the Labour Court despite the fact that in those matters also there was a delay of 10 and 8 years respectively, and therefore, the respondent No.1 ought to have referred the dispute to the 3 Labour Court for adjudication. Learned counsel appearing for the respondents has contended that the petitioner applied for the reference after a lapse of 15 years since termination of his services and therefore, the Appropriate Govt. was justified in not making the reference to the Industrial Disputes Tribunal. Learned counsel for the respondents has relied on decisions of Hon'ble Supreme Court in Nedungadi Bank Ltd. Vs. K.P.Madhavankutty and Others (2000) 2 SCC 455, Secretary, Indian Tea Association Vs. Ajit Kumar Barat and Others (2000) 3 SCC 93 and Haryana State Coop. Land Development Bank Vs. Neelam (2005) 5 SCC 91. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. Undisputedly, the services of the petitioner as stated by the petitioner in the writ petition were terminated on 31.05.1986 and the petitioner made an application before the Conciliation Officer raising industrial dispute after 15 years, who in turn, on failure of the conciliation proceedings, made a failure report and sent the report to the respondent No.1. The respondent No.1 instead of making a reference under Section 10 of the ID Act, held that the dispute has been raised after a lapse of 15 years without any justification for the long delay and the dispute does not appear to exist. In Nedungadi Bank Ltd. Vs. K.P. Madhvankutty and 4 Others AIR 2000 SC 839 Hon'ble Supreme Court held that although law does not prescribe any time limit for the appropriate Government to exercise its power under Section 10 of the Industrial Disputes Act, 1947, it is not that this power can be exercised at any point of time so as to revive the matters which had become stale. The learned Judges have held that this power has to be exercised reasonably and in a rational manner and if there is no rational basis for the Government to refer the dispute after long delay which in that case was 7 years, the Government would be justified in rejecting the reference of the dispute. In S.M.Nilajkar and Ors. Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27 before the Hon'ble Supreme Court it was submitted on behalf of the respondents therein that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants therein. The Apex Court did not agree with the contention relying on earlier decision of the Hon'ble Supreme Court in Shalimar Works Ltd. Vs. Workmen AIR 1959 SC 1217 wherein it has been held that merely because the Industrial Disputes Act does not provide for a 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 therefor. There is no limitation prescribed for reference of disputes to an 5 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 have failed, particular so when disputes relate to discharge of workmen wholesale. In Ratan Chandra Sammanta Vs. Union of India 1993 (supp (4) SCC 67 Hon'ble Supreme Court held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. In U.P. State Road Transport Corpn. Vs. Babu Ram (2006) 5 SCC 433, Hon'ble 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, Hon'ble 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 facts of each individual case. In Haryana State Coop. Land Development Bank Vs. Neelam (2005) 5 SCC 91 Hon'ble Supreme Court held that although, the court cannot import a period of limitation when the 6 statute does not prescribe the same, as was observed in Ajaib Singh Vs. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Another (supra) but it does not mean that irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate Government while making reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the Labour Court. In State of Bombay Vs. K.P.Krishnan and Ors. AIR 1960 SC 1223, a Constitution Bench of Hon'ble Supreme Court held that 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 of refusing to make a reference, the extraneous or irrelevant or which are not germane, and while considering the expediency, the Appropriate Government is not excluded to consider whether or not, it should exercise its power to make a reference. Even in dealing with the question as to whether it would be expedient or not 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 the relevant facts and circumstances. This view has also been reiterated by the Apex Court in Madhya Pradesh Irrigation Karamchari Sangh 7 Versus State of M.P. And another (1985) 2 SCC 102 and V. Veeranajan and others Versus Government of Tamil Nadu (1987) 1 SCC 479. In State of Gujarat Vs. Patel Raghav Natha and Ors. AIR 1969 SC 1297, Hon'ble Supreme Court while considering the question as to whether the Commissioner can revise an order made under Section 65 at any time held that it is true that there is no period of limitation prescribed under Section 211, but this power must be exercised in reasonable time. In Workmen Vs. I.I.T.I. Cycles of India Ltd. and Others 1995 Supp (2) Supreme Court Cases, 733 Hon'ble 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. In Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997) 6 SCC 71 Hon'ble 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. 8 In N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, Hon'ble Supreme Court held that a legal remedy cannot be kept alive for unreasonable period even if the statute does not provide for any limitation. In Bombay Union of Journalists Vs. State of Bombay and another, AIR 1964 SC 1617, the Hon'ble Apex Court held that while considering the question as to whether a reference should be made under Section 12 (5), the Appropriate Government has to act under Section 10 (1) of the Act which confers discretion on the Government either to refer the dispute or not to refer it. Under Section 12 (5) of the Act, the appropriate Government is under an obligation to record reasons for not making the reference. However, when the question involves raising a question of law and disputed question of fact, the Appropriate Government should not purport to reach a final decision on the same as it is a subject matter to be decided by the Industrial Tribunal, but it cannot be said that the Appropriate government is precluded from considering even prima-facie the merit of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10 (1) r/w Section 12 (5) of the Act. The Hon'ble Supreme Court further held that if the claim made is patently frivolous or is clearly belated, the Appropriate Government may refuse to make reference. 9 In the instant case, the petitioner-workman, whose services were said to have been discontinued by the respondent in the year 1986, sought to make the reference after a lapse of 15 years without any valid reasons and therefore, the respondent Appropriate Government declined to make the reference. The petitioner cannot claim parity with the other persons who raised the dispute much earlier than the petitioner. Undoubtedly, there is no limitation provided for making the application for reference, but it is culled from the various decisions of Hon'ble Supreme Court referred herein above that where no limitation is provided, the aggrieved party may approach the authority/ tribunal/Court within reasonable period. The reference may be made to the decisions of Hon'ble Supreme Court in Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (supra), State of Gujarat Vs. Patel Raghav Natha and Ors. (supra), N. Balakrishnan Vs. M. Krishnamurthy (supra), Nedungadi Bank Ltd. Vs. K.P. Madhvankutty and Others (supra), S.M. Nilajkar and Ors. Vs. Telecom District Manager, Karnataka (supra), Ratan Chandra Sammanta Vs. Union of India (supra). The public policy manifested in Industrial Legislation is to achieve the aim of justice and to maintain peace. Long Dormant claims have often more of cruelty than of justice in themselves and therefore, a legal remedy cannot be kept alive for unreasonable period even if the Statute does not provide for 10 any limitation. In this view of the matter, I am of the considered opinion that the reasons recorded by the respondent Appropriate Government for not making the reference after a lapse of 15 years cannot be said to be unreasonable or unjust. The order impugned, therefore, does not warrant any interference in the writ jurisdiction. The writ petition has no force and it is therefore, dismissed. There shall be no order as to costs. (H.R.PANWAR),J. rp