1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5835 OF 2011 Mr.Vishwambhar Murlidhar Bhatkar District Ratnagiri .. Petitioner V/s The Chief Officer, Ratnagiri Nagar Parishad .. Respondent Mr.M.S.Topkar for the petitioner. CORAM: R.G.KETKAR, J. DATE: 19th September, 2011. P.C.: 1. Heard Mr.Topkar, learned counsel for the petitioner. 2. By this petition, the petitioner hereinafter referred as the workman, has challenged the judgment and order dated 07.05.2010 passed by the learned Judge, Labour Court, Ratnagiri in Reference (IDA) No.6 of 2009. By that judgment, the learned Judge of the Labour Court rejected the reference on the ground that the workman has raised the dispute after 17 years as also on merits. 3. In support of this petition, Mr.Topkar submitted that the learned Judge of the Labour Court has committed serious error in rejecting the reference only on the ground that the workman has 2 raised the dispute after 17 years. He submitted that under section 10(1) of the Industrial Disputes Act, 1947 (for short the Act), no limitation is prescribed. In fact, section 10(1) of the Act provides that where the appropriate Government is of the opinion that any Industrial dispute exists or is apprehended it may at any time by an order in writing refer the dispute or any matter appearing to be connected with or relevant to the dispute to the Labour Court for adjudication. The Labour Court was not justified in rejecting the reference merely on the ground of delay. In support of this submission, he relied upon the judgment of the Apex Court in the case of Haryana State Co-op.Land Development Bank V/s.Neelam, 2005 II CLR 45, and Kuldeep Singh V/s.G.M.Instrument Design Development and Facilities, 2011 I CLR 5. 4. I have considered the submissions advanced by Mr.Topkar. It is not in dispute that the workman was employed as a driver in the Health Department of the Respondent from 25.05.1988. It is his case that without issuing any notice and also without paying any compensation and the salary in lieu of notice, he was terminated from 07.03.1991. After his termination, he was assured that he 3 will be reinstated. Despite repeated oral requests the Respondent did not reinstate him. He made written applications on 25.08.1992 and 17.09.1992. Despite this, the Respondent did not reinstate the petitioner. Again he gave notice to the Respondent on 30.01.2009. However, no action was taken pursuant to the said notice. The workman therefore approached the Assistant Labour Commissioner, Ratnagiri on 28.02.2009. Despite compromise, in the conciliation proceedings he was not reinstated. It was therefore contended that relying upon the oral assurances given by the Respondent, the workman did not approach the Court within time. 5. On behalf of Respondent, reply was filed denying the assurances made to the workman. It was also denied that he worked continuously for more than 240 days in a year. It was further asserted that the workman was working on a permanent basis since 1991 in some other establishment. 6. On the basis of material on record, the Labour Court rejected the reference on the ground that the workman raised the dispute after 17 years and also on merits. It is against this order, the workman has approached this Court. 4 7. After hearing Mr.Topkar, and after perusing the impugned award, it is evident that though the workman has claimed in his statement of claim that during the period 1988-89 and 1989-90 he was continuously working for more than 240 days in a year, except for his bare words the workman has not produced any evidence to support his contention. 8. Relying on the judgment of the Apex Court in the case of Ranip Municipal Corporation V/s Babuji Gamaji Thakore, 2008 SCR 342, the Labour Court came to the conclusion that the workman has not discharged the burden of proof that he has rendered continuous service of more than 240 days in a year. Apart from that it also came to the conclusion that the workman has raised the dispute after 17 years and consequently, no relief can be granted. 9. In the case of Kuldeep Singh (supra), the Apex Court has summarized the law on this point in Paragraph No.21 which reads as under:- “21.In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government ‘at any time’ refer the dispute to a Board or Court for enquiry. The 5 reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/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, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the Management or by the State Government.” 10. In that case the Labour Court came to the conclusion that the termination of the workman was illegal as the same was without 6 complying with the provisions of Section 25(f) of the Act. That finding was not questioned by the Management and it became final. In Paragraph No.13 of the report the workman therein had furnished the information to show that after his termination he made several representations to the various authorities. The Labour Court concluded that the workman had raised the demand of reference after more than five and half years of his termination and has not offered plausible and convincing explanation. The factual details furnished by the workman were not seriously denied by the management. It is in that context the Apex Court in Kuldeep Singh’s case held that the Labour Court and the High Court were not justified in rejecting the claim of the workman for reinstatement only on the ground of delay when the Labour Court had held that the termination of the services of the workman was illegal, null and void as it was without complying with the provisions of Section 25(f) of the Act. 11.In the instant case, the explanation offered by the workman cannot be accepted. As noted earlier, the workman has raised the dispute after 17 years from his termination. It therefore has to be held that when the workman approached the State Government 7 for making a reference, the dispute did not exist. Even otherwise, on merits, the Labour Court came to the conclusion that the workman failed to establish that he was continuously working for more than 240 days in a year and he has failed to discharge burden. I therefore do not find that the learned Judge of the Labour Court committed any error in rejecting the reference. In the result, petition fails and the same is dismissed. (R.G.KETKAR, J.)