M. Kadirvelu vs Union of India (UOI) and Another

This appeal is directed against the order dated 24th March, 2010 passed in W.P. No. 37500 of 2010, whereby learned Single Judge dismissed

the writ petition holding that the order dated 10th March, 2004, passed by the 1st Respondent refusing 10 refer the dispute to the Central

Government Industrial Tribunal-cum-Labour Court, Chennal needs no interference by this Court.

The Appellant claims to be a workman under the 2nd Respondent, Southern Railway having employed in the year 1975 as a casual labourer.

However, after seven years, he came to be retrenched in the year 1992 because of the closure of the TP Shed, Arakonam. The case of the

Appellant is that, by the closure of TP Shed, Arakonam, more than 400 workmen were thrown out of employment. Out of the total workmen, the

cases of about 315 workmen were referred and the Petitioner/Appellant was also one among them. Therefore, he had to file a petition u/s 2A once

again on 21st Feb. 2003 for raising an industrial dispute and seeking reference to the Tribunal for adjudication.

The appropriate Government, after receiving the failure report dated 5th Nov., 2003, prima facie held that the Appellant raised the industrial

dispute belatedly after a gap of almost 20 years without assigning any justifiable reasons for the delay. Hence, by order contained in letter dated

10th March, 2004. the appropriate Government refused to refer the dispute for adjudication, as the same is not maintainable. The said order was

challenged in the aforementioned writ petition.

Learned Single Judge noticed that in the writ petition, the writ Petitioner did not mention the date of joining in the Southern Railways nor has he

mentioned even the date or month of his retrenchment. He has not even produced one single document like appointment order, pay slip or identity

card issued by the Railways Department or any scrap of paper issued by the Southern Railways in the name of the Petitioner/Appellant during the

course of his employment to show that he was working with the 2nd Respondent Railways. Further, no sufficient reason has been given to interfere

with the order passed by the 1st Respondent. Learned Judge, therefore, held that the 1st Respondent rightly refused to refer the dispute, which

was raised by the Appellant belatedly after a gap of almost 20 years without assigning any justifiable reasons.

Mr. Lawrence, learned Counsel appearing for the Appellant mainly contended that the 1st Respondent, namely, the appropriate Government,

has no jurisdiction to refuse reference of the dispute merely on the ground of delay. Learned Counsel submitted that the appropriate Government

cannot enter into the merit of the claim of the workman, including the question of limitation. It is for the Labour Court or the Tribunal to decide the

question as to whether the reference is belated or not. Learned Counsel put reliance on the decision of the Supreme Court in the case of Western

India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others, and a decision of the Division Bench of the Punjab and

Haryana High Court in the case of Sanjay Kumar Vs. Union of India (UOI) and Others, .

We do not find any force in the submission of the learned Counsel for the Appellant. Admittedly, there is no material on record to show that the

Petitioner was engaged on daily wage basis by the 2nd Respondent. Southern Railways. On the contrary, it is the specific case of the 2nd

Respondent, Southem Railways, that the Appellant was working on daily wages under a contractor in respect of a particular work, which was

ultimately closed. It is also not in dispute that the Appellant raised the industrial dispute after about 20 years and sought reference of the dispute to

the Labour Court or Tribunal for adjudication.

In the case of Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others, , the Supreme Court considered

the question with regard to the jurisdiction of the appropriate Government to make a reference afresh despite its earlier order of refusal. Their

Lordships held that such earlier order refusing reference is not a bar on its power to refer the same dispute for adjudication subsequently. Alter

considering the ratio decided by the Supreme Court, we are of the view that the same will not apply to the facts of the present case.

Similarly, in the case of Sanjay Kumar Vs. Union of India (UOI) and Others, , a Division Bench of the Punjab & Haryana High Court considered

the question raised as to whether the Government can decline reference of a dispute raised by the workman on the ground that there existed no

employer-employee relationship and the workman was employed by a private contractor. The Bench held that the Government, while considering

the question of reference, cannot adjudicate upon the merit of the dispute. The decision in the above case is also of no help to the Appellant.

In the case of The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, , the Supreme Court considered a similar question with regard

to limitation for the appropriate Government to exercise its power u/s 10 of the industrial Disputes Act. Their Lordships held that the power u/s 10

has to be exercised reasonably and in a rational manner. The dispute, which is stale, could not be the subject matter of reference u/s 10 of the

Industrial Disputes Act Their Lordships observed as under:

Law does not prescribe any time-limit for the appropriate Government to exercise its powers u/s 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 been 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 u/s 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 u/s 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.

As noticed above, admittedly the Appellant raised the industrial dispute after about 20 years and on that ground the appropriate Government

refused to refer such belated dispute to the Labour Court or the Tribunal for adjudication. It is true that the appropriate Government, while

considering the question with regard to reference of dispute, cannot adjudicate the merit of the claim, but certainly it can decline to refer the dispute

on the ground of delay as in the instant case there is a delay of 20 years in raising the industrial dispute, that too, without assigning any valid reasons

for the delay. Learned Single Judge, therefore, rightly dismissed the writ petition and refused to interfere with the order passed by the appropriate

Government.

For the reasons stated above, finding no merit, this writ appeal is dismissed. However, there shall be no order as to costs.