SHETHNA, J. - (1.) THE petitioner Punjab National Bank Employees Union has challenged in this petition the impugned order Ex. 1 dated 8. 9. 89 passed by the respondent no. 2, the Desk Officer, Ministry of Labour, Govt. of India, New Delhi, wherein, he has stated that, "the Central Govt. is of the opinion that after considering the failure report dated 7. 3. 1989 of the Assistant Labour Commissioner, Ajmer that in the present matter there are no sufficient reasons for making reference for adjudication on the following grounds. " THE reason for not making reference is that the dispute appears to have been raised belatedly. Thus, from the impugned order at Annex. 1 it appears that only on the ground of delay the Govt. refused to make reference. THE petitioner Union raised the dispute before the Assistant Labour Commissioner (Central) Ajmer stating that Shri Nathu Ram Panchal, a class IV employee with the respondent no. 3, Punjab National Bank worked for 283 days from 23. 3. 77 to 9. 1. 1978. Inspite of it he was not continued in service. He was re-em- ployed on 18. 10. 79 i. e. after about 21 months of his earlier retrenchment. He was also made permanent lateron. However, the respondent Bank did not assign seniority from the date of his initial appointment i. e. from 23. 3. 1977 and did not pay any salary from the date of his termination i. e. from 7. 1. 78 to 18. 10. 79 for 21 months. Similarly situated persons Shri P. K. Saini, who was also a class IV employee appoi- nted in 1977 and retrenched in 1978 and lateron re-employed by the Bank, his dispute was raised and the Tribunal by an award dated 5. 3. 1987 declared that said Shri Saini was in continuous service with the Bank w. e. f. from his initial appointment and also ordered to pay him back wages for the period for which his services were terminated.
(2.) IN view of the award passed in favour of Shri Saini passed by the learned Tribunal, the petitioner made an application to the respondent no. 3 to treat him at par with Shri Saini and grant him all benefits of service including seniority and back wages. However, the respondent bank rejected his prayer. It was only thereafter, the petitioner Union raised the industrial dispute, but the conciliation officer sent the failure report to the respondent no. 2 on 7. 3. 89. However, as stated earlier by the impugned order letter dated 9. 8. 89 the respondent no. 2 informed the petitioner union that the dispute was belated and, therefore, it refused to refer the dispute for adjudication to the Tribunal. Before the Conciliation Officer, the respondent-Bank filed its reply dated 15. 2. 89 (Annex. R/1) contending that Shri Panchal (petitioner) did not work for 240 days or more on the date of settlement, therefore, he was not eligible for absorption in the Bank service. He has completed only 129 days, thereafter, he was duly selected and appointed after being interviewed in the Bank service w. e. f. 18. 10. 1979. Thus, it is clear that Bank had never objected on the ground of delay before the Assistant Labour Commissioner. Still, the respondent no. 2 refused to make reference only on the ground of delay and laches. Aggrieved by that decision (Annex. 1), the petitioner-Union filed this petition. Learned counsel Shri Mehta, for the petitioner vehemently submitted that the respondent no. 2 committed a grave error in refusing to make a reference to the Tribunal only on the ground of delay. He submitted that there was no delay in this case because Shri Panchal, member of the petitioner-Union, had applied to the bank to grant him similar benefits which were extended to another employee, Shri Saini of the Bank in pursuance to the award dated 5. 3. 87 passed by the Tribunal. On refusal by the Bank, the petitioner union approached the Assistant Labour Commissioner (Central) on behalf of Shri Panchal and the Conciliation Officer sub- mitted his failure report dated 7. 3. 1989 to the respondent no. 3. Thus, there was no delay on the part of the Union. He submitted that even the respondent Bank never objected on the ground of delay and latches. He, therefore, submits that the impugned decision (Annex. 1) of the respondent no. 2 not to make reference to the Labour Court on the ground of delay is wholly unsustainable. He submitted that there was no application of mind on the part of respondent no. 2 while refusing to make reference to the Labour Court. In alternative, he submitted that even assuming for the sake of arguments that there was delay on the part of the petitioner-union, then also, respondent no. 2 ought not to have refused to make reference on that ground, because, it is the Labour Court who has to decide whether there was delay or not. If the Labour Court satisfied that there was delay on the part of union or workmen, then at the most the workmen could be denied the back wages for the period during which he has not approached the Labour Court but he could not be denied of his right to get the final adjudication from the Labour Court on merits. However, learned counsel Shri Gupta vehemently submitted that the respondent no. 2 was fully justified in refusing to make reference on the ground of delay and laches as there was delay of almost nine years on the part of the Union. Mr. Lal for respondent no. 1 & 2 also supported the contentions raised by Mr. Gupta and submitted that in view of gross delay, respondent no. 2 has rightly refused to make the reference to the Labour Court. In support of their submissions, learned counsel Shri Gupta and Shri Lal have placed reliance on the judgment of the Supreme Court reported in the case of Bombay Union of Journalists and others vs. State of Bombay (1 ). In Bombay Union's case (supra), the main contention raised on behalf of the Union before the Apex Court was that the reasons given by the respondents for re- fusing to make reference was that respondent considered the merits of the dispute and came to the conclusion that reference would not be justified. The said contention was rejected by the Apex Court by observing that:- "when the appropriate government considers the question as to whether a reference should be made under Section 12 (5), it has to act under Section 10 (1) of the Act and Section10 (1) confers discretion on the appropriate government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not, In other words, in dealing with an industrial dispute in respect of which, a failure report has been sub- mitted under Sec. 12 (4) the appropriate government ultimately exercises its power under Section 10 (1), subject to this that Section 12 (5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12 (4) " The Apex Court further held that:- "when the appropriate government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie the merits of the dispute and take into account other relevant considerations which would help it to de- cide whether making a reference would be expedient or not". However, it has further held that:- "it is true that if the dispute in question raises questions of law, the appropriate Government should no purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of facts, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Sec. 10 (1) read with Sec. 12 (5) or not. " Thus, the point in question before the Apex Court in Bombay Union's case (supra) was totally different. However, learned counsel Shri Gupta and Lal submit- ted that Apex Court has clearly observed in para 6 of the said Judgment that if the claim made was patently frivilous or clearly belated, the Govt. may refuse to make the reference. It is no doubt true that the Apex Court did make a passing observations in para no. 6 of the Judgment about delay. However, we cannot pick up few lines from the Judgment. The Apex Court held that when the claim is belated then the Govt. should refuse to make a reference. In my humble opinion the phraseology used by the Apex Court that the appropriate Govt. may refuse to make a reference when the claim is belated coupled with the fact that the claim made is patently frivilous. Thus, the Govt. may refuse to make a reference if the claim is grossly belated provided it is also found to be frivilous. The Apex Court has also guardedly used the word `may' and not `must. '. Thus, the Apex Court has never laid down the proposition that the Govt. can refuse to make reference in a case where the claim is belated.
(3.) IT is to be stated that the reference has to be made u/sec. 10 (1) read with Sec. 12 (5) of the Industrial Disputes Act, but no period of limitation is provided. Much water has flown after the aforesaid judgment in Bombay Union's case (supra) and the Apex Court in case of Collector (land Acquisition) Anantnag vs. Katiji has clearly held that the Court shall have to do substantial justice to the parties by deciding the matters on merits and not to throw out the cases on the points like limitation etc. . The aforesaid judgment was delivered where the period of limitation was provided and on expiry of the period of limitation the matter was filed which was dismissed on the ground of delay. In such cases also, the Apex Court has held "that ordinarily the litigant does not stand to benefit of lodging the case and refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. " IT has also held that "when the de- lay is condoned the highest that can happen is that a cause would be decided o n merits after hearing the parties. " The Apex Court has further held that. "when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. " The Apex Court has also held that, "there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. " In my humble opinion, atleast it does not lie good in the mouth of learned counsel Shri Lal appearing for the Union of India to submit that the respondent no. 2 has rightly refused to make reference on the ground of gross delay. It was not expected atleast from the respondent no. 2 to refuse to refer the matter to the labour court on the ground of delay. He has refused to make reference on the ground of delay without assigning reasons. I have already set out the facts earlier, which goes to show that there was no delay on the part of the Union of India in making reference. In fact it is well settled law that if one of the employee has got the relief from the court then the employer should extend and grant similar benefit to the other employee also and he should not be compelled to approach the Court. It is only after the award passed in favour of other employee, who according to the pe- petitioner was similarly situated with him, granted benefit under the award of the Tribunal by the respondent bank, therefore, he requested the Bank to grant him similar benefits. That was refused. Thereafter, the matter was taken before the conciliation officer. Infact there was no delay. Even if it is presumed that there was delay then also there was sufficient cause to condone the delay and make refere- nce. It is to be stated that the Bank had objected before the conciliation officer on the ground that Shri Panchal was not entitled for any benefits because he had only worked for 121 days. The Bank and never objected on the ground of delay. In such circumstances, it would have been better if the respondent no. 2 makes reference to the labour court for its adjudication. If the labour Court was satisfied that there was delay on the part of the workman, then at the most the Labour Court would have denied back wages for that period. The action of the respondent no. 2 in refusing to make reference amounts to throwing out the meritorious matter at the very threshold by which the cause of justice is defeated. If it had made reference then the highest that can happen in the matter would that the matter would have been decided on merits after hearing the parties. ;