CWP 407/01 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.407/2001 Kedar Nath Sharma Versus Union of India & (4) Ors. Date of Order ::: 17/03/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Rajendra Soni, for petitioner Mr. Tej Prakash Sharma, for respondents 4 & 5. Mr. Sushil Sharma, for respondents 1 to 3. Instant petition has been filed by workman assailing order dt.24/08/2000 (Ann.5) of the Appropriate Government whereby in exercise of powers U/s 12(5) of Industrial Disputes Act, 1947 (“the Act”) it declined to make Reference to the Industrial Tribunal for adjudication. Petitioner alleged that he worked as Casual Labour from 22/02/90 initially on daily wage @ Rs. 14/-, which was later on increased to Rs.18/- but from May, 1998 was not permitted to work – against which initially he made representations and ultimately filed complaint before Conciliation Officer, where respondents 4 & 5 were called upon, and filed their reply inter-alia stating that petitioner worked in 1990 for various months – details whereof have been referred to in paras 1, 4 & 5 of their reply and was also alleged that his CWP 407/01 //2// working in the year 1998 was purely on contractual basis. Conciliation Officer tried to settle the dispute between parties but any how, had finally failed and submitted his failure report (Ann.4) to Appropriate Government on 28/07/00 but the Appropriate Government declined to make Reference vide order impugned dt.24/08/2000 (Ann.5) on the premise that workman has failed to prove his 240 days working in preceding 12 months and the dispute has been raised after a lapse of eight years. Counsel for petitioner submits that both the objections considered by Appropriate Government for declining the Reference are not legally sustainable for the reason that respondents 4 & 5 themselves in their reply before Conciliation Officer in paras 4 & 5 has mentioned about his working for the period 1990-98; and immediately after May, 1998, when he was not permitted to work, application was filed before Conciliation Officer and there was no delay; and from these facts, it stood established that petitioner has worked during the said period as is specifically averred for particular days, inasmuch as such an objection ought not to have been taken note of by CWP 407/01 //3// appropriate Government especially when such disputed facts can be examined only by adjudicatory authority in a Reference made for adjudication. Reply to writ petition has been filed only by respondents 4 & 5 in which it has inter-alia been averred that there is no material placed on record which may even prima facie substantiate about 240 days working in preceding 12 months of termination; and according to their Counsel, for the period of working in the year 1990, dispute has been raised after almost delay of eight years; therefore, appropriate Government has rightly considered in declining to make Reference to the Tribunal for adjudication of the dispute, if any. Counsel further submits that burden was on the workman to prove his total working period, which he failed to state; as such even if matter is now referred to, no effective purpose is going to serve after efflux of time. This Court has considered rival contentions of both the parties and with their assistance examined material brought on record. In initial complaint filed by petitioner before Conciliation Officer, it has CWP 407/01 //4// been specifically alleged by him about his working as Casual Labour for the period 1990- 98 and even from its reply filed by respondents 4 & 5 before Conciliation Officer, period of his working in the year 1990 and so also the year 1998 are also mentioned and immediately in October, 1998, petitioner filed application on which notices were issued to respondents 4 & 5 of 12/11/98 and failure report was also submitted in July, 2000. In the opinion of this Court, the delay having taken note of by appropriate Government is factually not sustainable. That apart, as regards question about working of the workman for 240 days, it was specifically stated by workman in his own application and so also in present writ petition inasmuch as respondents 4 & 5 in their reply before Conciliation Officer admitted about working in the year 1990 & 98, therefore, in the opinion of this Court, appropriate Government within limited scope of S.12 of the Act was only required to consider prima facie about 240 days working and once it was alleged by the workman and admitted by respondents 4 & 5 in their reply before Conciliation Officer, it was only for adjudicatory authority to examine such dispute CWP 407/01 //5// /question about the workman having worked for 240 days in preceding 12 months of his termination, and accordingly adjudication made by appropriate Government on its own in the facts of instant case is beyond its competence and the order declining to make Reference is not legally sustainable. Consequently, writ petition alongwith stay petition is hereby allowed. Respondent appropriate Government is directed to make Reference to the Tribunal within three months from today in accordance with law; and since the dispute is old one it is expected of the adjudicatory authority to dispose of the dispute expeditiously. A copy of this order be sent to the respondents 1 to 3 for compliance. (Ajay Rastogi), J. K.Khatri/p.5/407CWP01(ID).doc