IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 04.03.2011 CORAM THE HONOURABLE MR. M.Y.EQBAL, CHIEF JUSTICE AND THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A. NO. 352 OF 2011 M.Kadirvelu .. Appellant/Petitioner - Vs - 1. Union of India, rep. by its Secretary Ministry of Labour New Delhi. 2. The General Manager Southern Railways Chennai – 3. .. Respondents/Respondents Writ Appeal filed against the order dated 24th March, 2010, passed by learned single Judge in W.P. No.37500 of 2005. Presented under article 226 of the constitution of India to issue a writ of Certiorarified Mandamus, calling for the records relating to the proceedings in Ref.No.L 41012/289/2003-IR (B-1) Government of India, Ministry of Labour, New Delhi, dated 10.3.2004, by the Desk Officer, and quash the same and further direct the Ist respondent to refer the dispute to the Central Government Industrial Tribunal-cum- Labour Court, at Shastri Bhavan, Nungambakkam, Chennai. For Appellant : Mr. R.Lawrence JUDGMENT THE HON’BLE CHIEF JUSTICE AND T.S.SIVAGNANAM, J. This appeal is directed against the order dated 24th march, 2010 passed in W.P. No.37500 of 2010, whereby learned single Judge dismissed the writ petition holding that the order dated 10th march, 2004, passed by the 1st respondent refusing to refer the dispute to the Central Government Industrial Tribunal-cum-Labour Court, Chennai needs no interference by this Court. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant claims to be a workman under the 2nd respondent, Southern Railway having employed in the year 1975 as a casual labourer. However, after seven years, he came to be retrenched in the year 1992 because of the closure of the TP Shed, Arakonam. The case of the appellant is that, by the closure of TP Shed, Arakonam, more than 400 workmen were thrown out of employment. Out of the total workmen, the cases of about 315 workmen were referred and the petitioner/appellant was also one among them. Therefore, he had to file a petition u/s 2-A once again on 21st Feb., 2003 for raising an industrial dispute and seeking reference to the Tribunal for adjudication. 3. The appropriate Government, after receiving the failure report dated 5th Nov., 2003, prima facie held that the appellant raised the industrial dispute belatedly after a gap of almost 20 years without assigning any justifiable reasons for the delay. Hence, by order contained in letter dated 10th March, 2004, the appropriate Government refused to refer the dispute for adjudication, as the same is not maintainable. The said order was challenged in the aforementioned writ petition. 4. Learned single Judge noticed that in the writ petition, the writ petitioner did not mention the date of joining in the Southern Railways nor has he mentioned even the date or month of his retrenchment. He has not even produced one single document like appointment order, pay slip or identity card issued by the Railways Department or any scrap of paper issued by the Southern Railways in the name of the petitioner/appellant during the course of his employment to show that he was working with the 2nd respondent Railways. Further, no sufficient reason has been given to interfere with the order passed by the 1st respondent. Learned Judge, therefore, held that the 1st respondent rightly refused to refer the dispute, which was raised by the appellant belatedly after a gap of almost 20 years without assigning any justifiable reasons. 5. Mr. Lawrence, learned counsel appearing for the appellant mainly contended that the 1st respondent, namely, the appropriate Government, has no jurisdiction to refuse reference of the dispute merely on the ground of delay. Learned counsel submitted that the appropriate Government cannot enter into the merit of the claim of the workman, including the question of limitation. It is for the Labour Court or the Tribunal to decide the question as to whether the reference is belated or not. Learned counsel put reliance on the decision of the Supreme Court in the case of M/s.Western India Match Company Ltd. – Vs – The Western India Match Co. Workers’ Union (1970 (II) LLJ 256) and a decision of the Division Bench of the Punjab & Haryana High Court in the case of Sanjay Kumar – Vs – Union of India & Ors. (2004 (1) LLJ (P&H) 816). 6. We do not find any force in the submission of the learned counsel for the appellant. Admittedly, there is no material on record to show that the petitioner was engaged on daily wage basis https://hcservices.ecourts.gov.in/hcservices/ by the 2nd respondent, Southern Railways. On the contrary, it is the specific case of the 2nd respondent, Southern Railways, that the appellant was working on daily wages under a contractor in respect of a particular work, which was ultimately closed. It is also not in dispute that the appellant raised the industrial dispute after about 20 years and sought reference of the dispute to the Labour Court or Tribunal for adjudication. 7. In the case of M/s.Western India Match Company Ltd. – Vs – The Western India Match Co. Workers’ Union (1970 (II) LLJ 256), the Supreme Court considered the question with regard to the jurisdiction of the appropriate Government to make a reference afresh despite its earlier order of refusal. Their Lordships held that such earlier order refusing reference is not a bar on its power to refer the same dispute for adjudication subsequently. After considering the ratio decided by the Supreme Court, we are of the view that the same will not apply to the facts of the present case. Similarly, in the case of Sanjay Kumar – Vs – Union of India & Ors. (2004 (1) LLJ (P&H) 816), a Division Bench of the Punjab & Haryana High Court considered the question raised as to whether the Government can decline reference of a dispute raised by the workman on the ground that there existed no employer-employee relationship and the workman was employed by a private contractor. The Bench held that the Government, while considering the question of reference, cannot adjudicate upon the merit of the dispute. The decision in the above case is also of no help to the appellant. 8. In the case of Nedungadi Bank Ltd. – Vs – K.P.Madhavankutty & Ors. (2000 (2) SCC 455), the Supreme Court considered a similar question with regard to limitation for the appropriate Government to exercise its power u/s 10 of the Industrial Disputes Act. Their Lordships held that the power u/s 10 has to be exercised reasonably and in a rational manner. The dispute, which is stale, could not be the subject matter of reference u/s 10 of the Industrial Disputes Act. Their Lordships observed as under :- “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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 an industrial dispute was ex facie bad and incompetent.” 9. As noticed above, admittedly the appellant raised the industrial dispute after about 20 years and on that ground the appropriate Government refused to refer such belated dispute to the Labour Court or the Tribunal for adjudication. It is true that the appropriate Government, while considering the question with regard to reference of dispute, cannot adjudicate the merit of the claim, but certainly it can decline to refer the dispute on the ground of delay as in the instant case there is a delay of 20 years in raising the industrial dispute, that too, without assigning any valid reasons for the delay. Learned single Judge, therefore, rightly dismissed the writ petition and refused to interfere with the order passed by the appropriate Government. 10. For the reasons stated above, finding no merit, this writ appeal is dismissed. However, there shall be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar GLN To 1. The Secretary, Ministry of Labour Government of India New Delhi. 2. The General Manager, Southern Railways, Chennai – 3. JUDGMENT IN W.A. NO. 352 OF 2011 NG (CO) RH (16.3.11) https://hcservices.ecourts.gov.in/hcservices/