SUNITA AGARWAL,J. - (1.) Heard Shri Ashish Kumar, learned Advocate appearing for the petitioners and Shri Satish Chaturvedi for the respondent- bank.
(2.) This petition has been filed by 70 persons seeking to challenge the order dated 24.5.2011 passed by the Appropriate Government namely respondent no.1 in refusing to make a reference in conciliation case filed by the petitioners.
(3.) It appears that the petitioners raised a dispute alleging illegal termination of their services by the management. On failure of the conciliation report dated 24.9.2010, the respondent no.1 had examined as to whether the dispute was to be referred for adjudication. It was found that it was not a fit case for making reference and the reason given therein is that the dispute was belated highly and after lapse of more than 9 years, such a dispute had no merits and was not maintainable. Learned counsel for the petitioner placing reliance on the judgment of the Apex Court in Ajaib Singh v. Sirhind Cooperative Marketing Cum Processing Service Society Limited and Anr. reported in (1996) 6 SCC 82 and Civil Appeal No.8434 of 2014 Raghubir Singh v. General Manager, Haryana Roadways, Hissar as also the judgment of this Court in Writ Petition No.38949 of 2009 (M/S Indian Farmers Fertiliser Cooperative Ltd. v. State of U.P. and Ors.) decided on 15.10.2009 has submitted that the law of limitation has no application to the proceedings under the Industrial Disputes Act, 1947 (in short 'the Act, 1947') and the relief sought therein cannot be denied merely on the ground of delay. The plea of delay, if raised, by the employee is required to be proved as a matter of fact by showing a real prejudice and not as merely hypothetical defence. No reference to the labour court can be jointly questioned on the ground of delay alone. Section 10(1) of the Act, 1947 enables the Appropriate Government to make reference of an industrial dispute which exists or is apprehended "at any time", to one of the authorities mentioned in the Section. How and in what manner or through what machinery the Government was appraised of the dispute is wholly irrelevant. The requirement of Section 10 (1) is that there must be some material before the Government which will enable the Appropriate Government to form an opinion that the industrial dispute exists or is apprehended. This is an administrative function of the Government and is in contradistinction to judicial or quasi judicial function. What is implicit in the said principle is that in case of delay in raising the industrial dispute, the Appropriate Government under Section 10(1) of the Act, 1947 has a power to make reference to either labour court or industrial tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time between the workman and the employer. Reference has been made to the judgment of the Apex Court in S.M. Niljkar v. Telecom District Manager reported in (2003) 4 SCC 27 to submit that the workman cannot be denied to seek relief only on the ground of delay in raising the dispute. Placing paragraph '10' of Ajaib Singh (Supra), it was submitted that even in a case where the delay is shown to be existing, the labour court or tribunal dealing with the case can appropriately mould the relief by declining to grant backwages to the workman till the date he raised the demand regarding his illlegal retrenchment/termination or dismissal. The Labour Court, thus, in an appropriate case may direct payment of part of the backwages instead of full backwages or completely deny the same. Learned counsel for the respondents, on the other hand, placing reliance on Nedungadi Bank Ltd. v. K.P. Mahdavankutty and Ors. reported in (2000) 2 SCC 455; U.P. State Road Transport Corpn. v. Babu Ram reported in (2006) 5 SCC 433 and Steel Authority of India Ltd. and Anr. v. State of West Bengal and Ors. reported in (2008) 14 SCC 589 submits that though law does not prohibit any time limit for the Appropriate Government to exercise its power under Section 10 of the Act but such a power is to be exercised reasonably in a rational manner. It cannot be exercised at any point of time so as to revive matters which had since been settled. The appropriate Government has to satisfy itself, at the time of making of reference as to whether the industrial dispute exists 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.;