1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7650 OF 2008 Balasaheb Ambadas Gunde, R/o. Satpute Galli, Kedgaon, Taluka & Dist. Ahmednagar ....Petitioner. Versus 1. Union of India, Through Secretary for Ministry of Labour and Employment, New Delhi. 2. The Regional Labour Commissioner, 1 - Kaul Bagh, Guru Nanak Nagar, Shankarseth Road, Pune. 3. Food Corporation of India, Mistry Bhavan, Dinshaw Vachha Road, Mumbai ....Respondents. Shri. P.V. Barde, Advocate for the petitioners. Shri. Alok Sharma, Assistant Solicitor General for respondents. CORAM : V. C. DAGA & A.V. POTDAR, JJ. DATE : 14TH JULY, 2009 2 ORAL JUDGMENT : [ PER V.C. DAGA, J. ] 1. We have heard the learned counsel for the parties. Rule returnable forthwith. Mr. Alok Sharma waives service on behalf of the respondents. By consent petition is taken up for final hearing. 2. This petition is directed against the decision of the respondent No. 1 communicated to the petitioner under communication letter bearing No. L-220120/362/2007/IR (CM) II, dated 30th September 2008, refusing to make reference under section 10(1) read with section 12(5) of the Industrial Disputes Act ("the Act" for short). The Facts 3. Brief facts are as under :- The petitioner was working as a worker with the unit of Food Corporation of India ("the Corporation" for short) at Ahmadnagar. The Corporation decided to grant permanency to its temporary employees. However, the petitioner was excluded though employees junior to the petitioner were granted permanency. The petitioner made a grievance which, ultimately, resulted in oral termination of his service without any written order of termination. No retrenchment compensation was offered. No charge sheet was served on him. 3 4. The petitioner initially made various representations and tried to persuade the authorities of the Corporation to withdraw action of termination. But, it appears that none of the representations were considered by the Corporation. 5. The factual matrix reveal that petitioner had made various representations right from 17.3.1999 to the year 2002 and, ultimately he approached to the Assistant Labour Commissioner, Central, Pune vide his application dated 25.11.2003 which resulted in initiation of the pending conciliation proceedings. The conciliation proceedings were dragged on right from the year 2003 till May 2006 and, ultimately, ended in failure report. By the impugned communication dated 30th September 2008 the Government of India, Ministry of Labour, New Delhi informed to the petitioner and refused to make reference in the following words : "The dispute for alleged termination of service w.e.f. 01.09.1997 has been raised belatedly over 9 years of said termination without any explanation for such delay in raising dispute and is, therefore, not deemed fit for adjudication." (Emphasis supplied) 6. The validity of the aforesaid decision of the respondent No. 1, 4 refusing to make reference is subject matter of challenge in this petition filed under Article 226 of the Constitution of India. Rival submissions 7. The learned counsel appearing for the petitioner submits that the reason sought to be given for rejecting reference is absolutely untenable. He submits that the petitioner approached the Conciliation Officer well within reasonable period from the date of termination. He further submits that from time to time approaches were made to the employer by the petitioner and, ultimately, the conciliation proceedings were opened in the year 2003. He, thus, submits that the impugned order holding delay of 9 years is factually erroneous, perverse and suffers from non application of mind. He further submits, as to whether the approach was made belatedly or otherwise could be a subject matter of industrial adjudication. In his submission at the time of final disposal of the dispute relief can be moulded considering delay, if any in approaching to the Conciliation Officer, but the adjudication of the dispute cannot be denied. He, thus, submits that the impugned decision of the respondent No. 1, communicated to the petitioner, is liable to be quashed and set aside. The reliance is place on the judgment of this Court in the case of Devidas S. Amin Vs. State of Maharashtra and others, reported in 2001 (2) Bom. C. R. 183. 8. Per contra, the learned counsel for respondents tried to support 5 the impugned order, but he could not take his submission to the logical end. He, ultimately, agreed that the reference be made to Industrial Tribunal for adjudication of the dispute on merits and left the issue for adjudication in accordance with law. Consideration 9. Having heard rival parties to the petition, we are of the confirmed view that it was not open for the Central Government to refuse to make reference alleging delay on the part of petitioner in raising dispute. In this behalf, it will be useful to make reference of the earlier decision of the Supreme Court in the case of State of Bombay Vs. K.P. Krishnan reported in A.I.R. 1960 S.C. 1223 and Bombay Union of Journalists and others Vs. The State of Bombay and another, reported in 1964 S.C. 1617 wherein it is observed :- "From the perusal of these two decisions, it becomes clear that the ambit of the enquiry open for the Government or the Dy. Commissioner under section 12(5) of the Act is very limited. The Government has only to consider whether there is a prima facie case or merits and it is not permissible to adjudicate on the merits of the claim raised by the employee. Instead, the Government or the Dy. Commissioner of Labour should be very slow in declining to make the reference because such an action would shut the doors for an employee to get his dispute adjudicated by the Labour Court. The legislature has enacted the Industrial Dispute Act 6 with a fervent hope that the disputes between the employee and the employer would be decided expeditiously and the substantial right conferred on the employee to get his dispute adjudicated from the Court should not be defeated by the Dy. Commissioner of Labour or the Government by adjudicating that the action of the management is justified. 10. In the present case, it cannot be said that there was delay on the part of the petitioner in raising dispute. The petitioner has rightly placed reliance on the two judgments in the cases of Ajaib Singh V. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another reported in A.I.R. 1999 S.C. 1361 and Karan Singh V. M/s. Executive Engineer Haryana State Marketing Board, reported in A.I.R. 2007 SC (Supp) 989 wherein the references were made even after expiry of more than seven (7) years. In the case of Ajaib Singh (Supra) the Apex Court observed as under :- "The provisions of Art. 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workmen merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown 7 to be existing, the tribunal, labour Court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of back wages instead of full back wages. In the case of Karan Singh (Supra), the Apex Court ruled as under :- "11. Sofar as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would be depend on facts of each individual case. 12. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. V. K.P. Madhavankutty and Ors. (200(2) SCC 455) it was noted at paragraph 6 as follows : "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been 8 apprehended. A dispute which is stale could not be the subject-matter of reference 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 in nowhere mentioned. Demand raised by by the respondent for raising an industrial dispute was ex- facie bad and incompetent. 11. In the above circumstances, the order passed by the respondent No. 1 is liable to be quashed and set aside. The respondent No. 1 is directed to make reference within one months from today to the appropriate Tribunal which must be tried with expeditious dispatch. 12. We would like to make it clear that the observations made by us are tentative. The same would not bind the concerned Court or Tribunal while adjudicating the dispute on merits as the authority shall have to decide the dispute afresh on its own merits after giving reasonable opportunity of hearing following principles of natural justice to both the 9 parties. 13. Rule is made absolute in above terms with no order as to costs. [ A.V. POTDAR, J. ] [ V.C. DAGA, J. ] ssc/wp7650.08