CWP 2202/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2202/2006 Nanhe Khan Versus Secretary, Labour Department Jaipur. Date of Order ::: 12/11/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Raghunandan Sharma, for petitioner (workman) Mr. JK Agrawal, Addl. Govt. Counsel for respondent Instant petition has been filed by workman assailing order dt.31/01/05 (Ann.2) whereby appropriate Government has declined to make Reference in exercise of powers U/S 12(5) of Industrial Disputes Act, 1947 (“the Act”) on the premise that application against alleged termination was submitted belatedly after more than 16 years without explanation therefor. As alleged in writ petition, petitioner was appointed as Beldar on daily wages basis on 01/01/86 and his services were retrenched by a verbal order w.e.f. 16/12/86 – against which he raised his grievance through application before Conciliation Officer for the first time on 10/03/2003 after almost 16 years of alleged termination. Conciliation Officer submitted failure report vide letter dt.13/09/04 (Ann.1). After taking note of material on record and inordinate delay of about 16 years, appropriate Government being satisfied that there does not CWP 2202/06 //2// exist an industrial dispute, declined to make Reference in exercise of powers U/S 12(5) of Act. Counsel for petitioner submits that U/s 10 of the Act, there is no limitation provided and even if there is a delay of 16 years in submitting application raising dispute against termination, appropriate Govt. has arbitrarily passed an order declining to make a Reference. In support, Counsel placed reliance upon decisions of Apex Court in Sapan Kumar Pandit Vs. UP State Elec. Board (2001(6) SCC 222); and of this Court (DB) in Ram Bharos Kharwad Vs. State (2006(1) RLW 768) and Jugal Kishor Vs. Secretary Labour Department (S.B.CWP-2439/04 decided on 13/02/08). Respondents have filed reply inter-alia averring that after taking note of over-all material furnished by Conciliation Officer, upon having satisfied therewith and considering inordinate delay of 16 years as the workman as alleged was appointed on daily wages and stood retrenched way back in December, 1986, for which application has been submitted for the first time on 10/03/03, appropriate Government after being satisfied, considered it proper to decline to make a Reference; as such order impugned does not call for interference. I have considered contentions of Counsel CWP 2202/06 //3// for both the parties and with their assistance, pondered over material on record. It is trite that u/s 10 of the Act, there is no time limit fixed for making a Reference for an industrial dispute for adjudication but this power cannot be exercised at any point of time or for reviving matters which since stood settled by a passage of time. Power vested with appropriate Government has to be exercised reasonably and in a rational manner. A dispute being stale could not be made subject matter of Reference U/s 10 of the Act. Question as to when a dispute can be said to be stale, would certainly depend upon facts of each case. In Sapan Kumar Pandit Vs. UP State Elec. Board (supra), Reference was made by appropriate Government for adjudication U/s 4-K of UP Industrial Disputes Act, 1947 but the reference was set aside by High Court of Allahabad on the premise that there being an inordinate delay, no Reference could be made by Government of UP. Apex Court observed that there are cases in which lapse of time may result in fading or even eclipse of dispute, itself; and if nobody keeps dispute alive during long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some CWP 2202/06 //4// time but when dispute remained alive though not gal- vanished by workmen or the Union for other justified reasons, it does not cause the dispute to wane into total eclipse; and that being so, such a long interval in like cases could be considered by adjudicating authority while moulding the relief. While examining scheme of the Act, 1947, Apex Court observed ad infra: “8. The above section is almost in tune with Section 10 of the Industrial Disputes Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time limit is fixed for making the reference for a dispute for adjudication, could any State Govt revive a dispute which had sub-merged in stupor by long lapse of time and re- kindled by making a reference of it to adjudication ? 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, CWP 2202/06 //5// complimentary to each other. The Govt. 's 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.” Aforesaid observations were taken note of by Division Bench of this Court in Ram Bharos Kharwad Vs. State (2006(1) RLW 768) and Single Bench in Jugal Kishor Vs. Secy Labour Department. However, in instant case, appropriate Government has declined to make a Reference on the premise of inordinate delay of 16 years and no explanation for such delay having been put forward by workman. Words, “at any time” used in S.10 of the Act will not certainly empower appropriate Government to exercise discretion to make Reference or for revising the matter belatedly. Dispute as alleged by workman was of December, 1986 and he raised grievance against CWP 2202/06 //6// alleged retrenchment by submitting application for the first time on 10/03/03 almost after more than 16 years. Such a dispute was certainly stale one and appropriate Government has not committed any error in declining to make Reference while passing order dt.31/01/05 (Ann.2). Certainly, lapse of time resulted in losing the remedy and the right as well; and the delay would be fatal if resulted in material evidence relevant to adjudication being lost or rendered unavailable which must have been noticed by appropriate Government for its satisfaction while taking decision to decline for making Reference under order impugned. Consequently, writ petition fails and is hereby dismissed. No costs. (Ajay Rastogi), J. K.Khatri/p6/2202CW06-NovID.doc