MAHESHWARI, J. - (1.) BY way of this petition for writ, the petitioner seeks the reliefs of quashing of the impugned communication dated 03. 02. 2004 (Annexure-3) whereby the State Government has refused to refer the alleged dispute for adjudication; and directions to the respondents to make reference to the Labour Court.
(2.) THE petitioner has averred that he raised an industrial dispute before the Conciliation Officer at Jodhpur regarding termination of his services by the respondent No. 1 in violation of the requirements of the Industrial Disputes Act, 1947 ('the Act') (copies of the applications made by the petitioner have been collectively placed as Annexure-1); that the employer did not submit reply despite repeated communications and in those circumstances, the Conciliation Officer forwarded failure report to the State Government on 23. 07. 2003 (Annexure-2); that, however, the State Government in its Labour Department by the impugned order dated 03. 02. 2004 (Annexure-3) has refused to refer the matter to the Labour Court while observing that the petitioner has raised the dispute 16 years after termination of his services without disclosing sufficient reasons. According to the petitioner, because of the order dated 03. 02. 2004 he has been deprived of his legal rights to have recourse to legal remedy and his genuine case has been refused to be referred by the Government whereas there is no jurisdiction vested in the Government to refuse to refer the industrial dispute for adjudication. It has been strenuously contended by the learned counsel appearing for the petitioner that mere delay in raising of the dispute is not fatal and the State Government has no jurisdiction to refuse to make the reference. According to the learned counsel, the only power with the State Government is to refer the dispute for adjudication; and when a clear and specific industrial dispute is shown to exist in view of the failure report of Conciliation Officer, the Government cannot refuse to refer the same merely with reference to the delay. Learned counsel has referred to and relied upon the decisions in (1) Satish Sharma Vs. Union of India & Ors. : 2002 (3) WLC 656 = RLW 2003 (2) Raj. 840; (2) S. D. O. (Phones) Vs. Ramesh Chandra & Ors. : 2003 WLC (UC) 156; (3) State Vs. Shanker Lal: 2002 (2) WLC 79; (4) Sapan Kumar Pandit Vs. U. P. State Electricity Board & Ors. : 2001 (7) SRJ 234; (5) Bhika Ram Vs. The State of Rajasthan & Ors. : 2001 (1) WLN 380 = RLW 2000 (4) Raj. 404; (6) Kanhiya Lal Vs. State of Rajasthan & Ors. : 2004 (1) DNJ (Raj. , 411 = RLW 2004 (4) Raj. 2202; (7) Ram Gopal Pareek Vs. State & Ors. : 2002 (1) WLC 53 = RLW 2001 (2) Raj. 1185; (8) Babu Khan Vs. Union of India & Ors. : 2005 (1) CDR 691 = RLW 2005 (2) Raj. 1370; (9) Jitendra Singh Vs. Union of India & Ors. : S. B. Civil Writ Petition No. 3160/2005 decided on 30. 05. 2005; and (10) Rajendra Kumar Vs. The Union of India & Ors. : 2006 (1) CDR 66 = RLW 2005 (4) 2841. Per contra, it has been contended on behalf of the respondents Nos. 1 and 2 that the Government has not acted without jurisdiction; and that the delay in the present case being inordinate and unexplained and the petitioner-workman being not entitled for any relief, the State Government was justified in refusing to refer the matter to the Labour Court. It has also been contended that no dispute could be said to exist inasmuch as according to the own showing of the petitioner, he was lastly working with another employer and not with the respondents; and, therefore, the claim as made against the respondents was fundamentally incompetent. Learned counsel has referred to and relied upon the decisions in (1) Chief Engineer, Ranjit Sagar Dam & Anr. Vs. Sham Lal: AIR 2006 SC 2682 = 2006 (4) RLW 3171 (SC); and (2) Assistant Engineer, C. A. D. , Kota Vs. Dhan Kunwar: AIR 2006 SC 2670. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record, this Court is clearly of opinion that the present writ petition remains bereft of substance and deserves to be dismissed. The petitioner has not stated the particulars of his employment and of the alleged termination in the body of petition nor has given the date of his making application before the Conciliation Officer; however, it appears from the observations made in the failure report (Annexure-2) that such application was made for the first time on 14-11-2002. From the contents of the application so made by the petitioner (Annexure-1), it appears that he raised the dispute against the General Manager, Paschimi Rajasthan Dugdh Uptpadak Sahakari Sangh Limited, Jodhpur (respondent No. 1) and the Managing Director, Rajasthan Co- operative Dairy Federation Limited, Jaipur (respondent No. 2) with the submissions that he worked from 27. 06. 1983 to 31-12-1984 as an apprentice; that he worked against the vacant post of Fitter from 09. 01. 1985 to 08. 04. 1985, and from 12. 04. 1985 to 31. 08. 1985. According to the petitioner, he worked for 10 months after 31. 08. 1985 but he was not paid the wages for this period; that thereafter he was sent to "raniwara Dugdh Sangh" by oral orders where he worked from 01. 04. 1986 to 29. 05. 1986 and was paid wages; but by oral orders, he was removed from services without any notice and without any compensation. The respondents chose not to respond to the notices sent by the Conciliation Officer who forwarded the failure report on 23. 07. 2003. The State Government has proceeded to refuse to refer the dispute by its impugned communication dated 03. 02. 2004 (Annexure-3) with the following observations:- ***
(3.) ON the facts of this case, particularly when the petitioner alleged to have lastly worked with Raniwara Dugdh Sangh and did not raise any dispute against the said employer and then, raised the dispute of the present nature only on 14-11-2002, i. e. , more than 16 years after alleged termination of services on 29. 05. 1986, the Government cannot be faulted in finding that there was no existing dispute that would require adjudication and in refusing to make the reference. In Dhan Kunwar's case (supra) the workman was appointed on 01. 01. 1978 as a work-charged employee on temporary basis, was declared quasi-permanent, and worked upto 30. 05. 1983; her services were terminated after paying one month's salary; and after about 8 years, dispute was raised that was referred for adjudication. The employer took the plea of closure of the section of the Irrigation Department where the respondent-workman was working and it was emphasized that the reference was sought for after a very long period of time, i. e. , about 8 years. The Labour Court was of the view that though the claim was delayed and so was reference, yet the respondent-workman was not to be denied the benefits; and finding non-compliance of the requirements of Section 25f (b), ordered reinstatement with 30% back wages. The learned Single Judge and the learned Division Bench of this Court dismissed the writ petition and appeal respectively and hence, the matter was in appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the appeal while referring to the ratio in its earlier decisions in Nedungadi Bank Ltd. Vs. K. P. Madhavankutty & Ors. : (2000) 2 SCC 455 and S. M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka: (2003) 4 SCC 27 and observed that the Labour Court should not have granted relief and that the learned Single Judge and the Division Bench did not consider the issues in proper perspective. The observations made by the Hon'ble Supreme Court along with reference to the decided cases, in paragraph 6 to 10 of the above report, may be usefully reproduced thus: " 6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case. 7. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K. P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as follows: " 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 heel 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 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. " 8. In S. M. Nilajkar and Ors. v. Telecom District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as follows (at para 17): " 17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. v. Their Workmen (AIR 1959 SC 1217) (supra), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the dispute should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their Workmen (AIR 1959 SC 1217) (supra ). In Nedungadi Bank Ltd. v. K. P. Madhavankutty and others AIR 2000 SC 839 (supra), a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandar Sammanta and others v. Union of India and others (1993 AIR SCW 2214 (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees under P&t Department v. Union of India (AIR 1987 SC 2342) (supra), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay. " 9. In the background of what has been stated above, the Labour court should not have granted relief. Unfortunately, learned single Judge and the Division Bench did not consider the issues in their proper perspective and arrived at abrupt conclusions without even indicating justifiable reasons. 10. Above being the position, the appeal is bound to succeed and we direct accordingly. No costs. " ;