JUDGMENT Naresh H. Patil, J.
1. Rule. Rule made returnable forthwith. Learned Counsel appearing for the respondents waive service.
2. The petitioner has sought for a writ of mandamus under Article 226 of the Constitution of India for striking down the impugned order of reference dated 21st March 2006 made by the Deputy Commissioner Labour Aurangabad Division Aurangabad under Section 10 of the Industrial Disputes Act 1947.
3. The petitioner Bajaj Auto Limited is a manufacturer of two wheeler and there wheeler automobile vehicles. The manufacturing activity is carried out at its plant at Waluj, Aurangabad. The petitioner contends that the members of respondent No. 3 were given temporary, fixed term employment by the petitioner for the first time 18 years ago from the date when the third respondent Bhartiya Kamgar Kranti Sangathana put up its demand notice on 27-1-2004. The appointments of the workers were made by the petitioner to meet the increase in demand arising out of market exigencies. This appointment was initially for a period of 7 months. The appointments were given to the persons on temporary basis on their applications who had accepted such temporary engagement in writing. At the end of each of these fixed terms periods the workers' employment came to an automatic end, according to the petitioner. At no point of time the members worked for 240 days in any span of 12 consecutive calendar months. After the last employment of the members of the third respondent, all such temporaries kept silent for several years without raising any industrial dispute. None of them approached the Court of law in spite of they coming to know that litigation of the first batch of 1200 temporaries had started in the year 1997. The said litigation was much publicised one. It is stated that the said litigation ended in the judgment and order dated 17-12-2003 delivered by the Apex Court. Thereafter, the members of the third respondent formed a Union and raised their demand on 27-1-2004 only in order to take undue advantage of the Supreme Court judgment dated 17-12-2003 wherein compensation was granted to 185 workers. It is stated that after their last engagement which was about 12 to 18 year ago none of these temporaries ever worked with the petitioner.
4. The petitioner replied to the demand letter of respondent No. 3 by letter dated 23rd February 2004 rejecting the demand and pointing out that the members of the respondent No. 3 were appointed for a temporary period which was already over.
5. The matter thereafter went to the Deputy Commissioner of Labour Aurangabad and conciliation proceedings commenced. The second respondent made an order of reference of the dispute to the Industrial Tribunal at Aurangabad on 27-4-2005.
6. The petitioner filed Writ petition No. 4520 of 2005 before a Division Bench of this Court challenging the aforesaid order of reference. By order dated 11-7-2005 this Court quashed and set aside the order of reference and directed the Commissioner to reconsider the matter afresh. It was observed that both the parties are at liberty to submit their written submissions before the authority. It was made clear that this Court did not express any opinion on any of the issues sought to be raised in the matter and all the issues were kept open.
7. The petitioner submits that pursuant to the said order the petitioner submitted his written notes of arguments and relied on several case laws and respondent No. 3 also submitted its written notes of arguments. Respondent No. 2 passed order of reference on 22-8-2005. The said order of reference was again challenged by the petitioner in Writ Petit No. 7269 of 2005. By order dated 23rd February 2006 a Division Bench of this Court, to which one of us (Naresh H Patil, J.) was a party, quashed and set aside the order of reference and remanded the matter to the Deputy Commissioner of Labour to consider the material placed before him by the contesting parties, afresh. It was observed that the Deputy Commissioner of Labour shall comply with the directions of this Court given in the earlier order in Writ Petition No. 4520 of 2005. It was clarified that no detailed reasoned order was expected from the Deputy Commissioner of Labour but application of his mind and liveliness to issues raised by the parties should be briefly reflected on merits in the order. After the second remand the Deputy Commissioner of Labour passed the present impugned order on 21st March 2006.
8. We have extensively heard the learned Counsel appearing for the respective contesting parties. The learned Senior Counsel Shri Cama appearing for the petitioner mainly canvassed before us that the Deputy Commissioner of Labour failed to correctly appreciate the spirit of the earlier orders of remand passed by this Court. In the submission of the learned Senior Counsel, respondent No. 2 misdirected himself by wrongly appreciating the facts of the case and the provisions of law. The reasoning adopted by respondent No. 2 in making the reference was unreasonable and lacking in application of mind. The learned Senior Counsel specifically contended that the reference was made on demand of respondent No. 3 which is neither a recognised union of the petitioner nor it represents the majority of the workers of the petitioner - Company. Reliance was placed on the provision of Section 10(2) of the Industrial Disputes Act 1947 (for the sake of brevity, "the Act of 1947"). It is submitted that considering the terms of reference the same would not lie to the Industrial Court but to the Labour Court for which reliance was placed on Item 3 of second schedule. There was no demand made by the individual workers. There were no particulars furnished by respondent No. 3 and as the demand period ranges from 3 to 18 years, the petitioner company is handicapped to defend itself in the Court of law as it does no have necessary records with them nor the petitioner is in a position to utilise the services of the officers who were then in charge at the relevant time. The learned Senior Counsel Shri Cama vehemently challenged the reference order on the ground of delay which was highly abnormal. The reference order, in his submission deserves to be quashed only on the said ground. The learned Senior Counsel further submitted that considering the demand there could not be any relief of reinstatement as the petitioner seriously disputes the employer -employee relationship. For seeking relief against simpliciter termination the matter lies to the Labour Court and not the Industrial Court. In the submission of the learned Senior Counsel, if the reference order is maintained then the petitioner would be prevented from arguing and leading evidence on the issue of employer - employee relationship. In the present case, the petitioner did not terminate the members of respondent No. 3 but they were out of job on the efflux of their tenure of temporary appointment.
9. In support of the submissions the learned Senior Counsel Shri. Cama placed reliance on the following case laws. In Shalimar Works Limited v. Their Workmen the Apex Court in para 13 observed:
13. ...We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under Section 33-A in this case; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to make. In addition, the reference in this case was vague inasmuch as the names of 250 workmen to be reinstated were not sent to the Industrial Tribunal and no list of these men was given to it till practically after the whole proceeding was over.
In the case of Nedungadi Bank Ltd. v. K.P. Madhavankutty 2000 I LLJ 561 the Apex Court in para 6 held:
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 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 lapse of about seven years of 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....
In Assistant Executive Engineer, Karnataka v. Sri Shivalinga 2002 I CLR 321 the Apex Court in para 6 has held:
6. Learned Counsel for the appellant strongly relied on the reasoning of the Labour Court and contended that the view of the High Court would not advance the cause of justice. Learned Counsel for the respondent relied upon two decisions of this Court in Ajaib Singh v. The Sirhind Co-operative Marketing cum Processing Service Society Ltd. and Anr. 1999 I CLR 1194 SC : 1999 AIR SCW 1051 and in Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. to contend that there is no period of limitation prescribed under the Industrial Disputes Act to raise the dispute and it is open to a party to approach the Court even belatedly and the Labour Court or the Industrial Tribunal can properly mould the relief by refusing or awarding part payment of back wages. It is no doubt true that in appropriate cases as held by this Court in aforesaid two decisions, such steps could be taken by the Labour Court or the Industrial Tribunal as the case may be, where there is no such dispute as to relationship between the parties as employer and employee. In cases where there is a serious dispute or doubt in such relationship and records of the employer become relevant. The long delay would come in the way of maintenance of the same. In such circumstances, to make them available to a Labour court or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A situation of the nature would render the claim to have become stale. That is exactly the situation arising in this case. In that view of the matter, we think two decisions relied upon by the learned Counsel have no application to the case on hand. Proceeding on the facts of the case, we think the High Court is wrong in having interfered with the award made by the Tribunal. The order made by the High Court in writ proceedings, therefore, shall stand set aside and the award made by the Labour Court shall stand restored. The appeal is allowed accordingly.
In Secretary, Indian Tea Association v. Ajit Kumar Barat 2000 I CLR 625 the Apex Court in para 6 held thus:
6. In Sultan Singh v. State of Haryana and Anr. , this Court held that an order issued under Section 10 of the Act is an administrative order and the Government is entitled to go into the question whether industrial dispute exists or is apprehended and it will be only a subjective satisfaction on the basis of material on record and being an administrative order no lis is involved.
This law on the point may be summarized as follows:
1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable wherever possible for the government to indicate the nature of dispute in the order of reference;
2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi judicial one and the court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order;
3. An order made by the appropriate government under Section 10 of the Act being an administrative order no lis is involved as such an order is made on the subjective satisfaction of the Government;
4. If it appears from the reasons given that the appropriate government took into account any consideration irrelevant or foreign material, the court may in a given case consider the case for a writ of mandamus and;
5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act.
In Haryana State Co-op. Land Development Bank v. Neelam 2005 II CLR 45 the Apex court has held in para 18 thus:
18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman out of the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the Industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10-8-1988.
In Regional Manager, S.B.I. v. Rakesh Kumar Tewari 2006 I CLR 395 the Apex Court in para 23 has held thus:
23. In directing reinstatement, neither the High Court nor the tribunal had considered that the order might affect the interest of those others who were employed after the respondent. As was said in Central Bank of India v. S. Satyam 1996 II CLR 1095 SC. The other persons employed in the industry during the intervening period of several years have not been impleaded. Third party interests have arisen during the interregnum. These third parties are also workmen employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners (respondents herein) may result in displacement of those other workmen, who have not been impleaded in these proceedings, if the respondents have any claim for re-employment.
In D.G.M. Oil & Natural Gas Corporation Ltd. v. Ilias Abdulrehman 2005 LLR 235 in the facts of the said case the Apex Court observed:
...Therefore, not providing a continuous job to the respondent-workman by the appellant did not offend Article 25F of the Act and did not really amount to an unfair labour practice.
In Manager (Now Regional Director) R.B.I. v. Gopinath Sharma 2006 III LLJ 492 the Apex Court in paragraphs 21 and 22 held thus:
21. This case, in turn, refers to the judgments in Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. and S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka . This Court held that even though there is no limitation prescribed for reference of disputes to an Industrial Tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen. This Court has held that a delay of four years in raising the dispute after even re-employment of most of the old workmen was held to be fatal. In Nedungandi Bank Ltd.'s case (supra) this Court held a delay of seven years to be fatal and disentitled the workmen to any relief.
22. In our opinion, a dispute which is stale could not be a subject matter of reference.
10. Learned Counsel Shri. T.K. Prabhakaran appearing on behalf of respondent No. 3 submitted that along with respondent No. 3 - Union individual workers have also filed applications under Section 2-A of the Act of 1947. These workers had raised their demand individually. It was submitted that the Industrial Disputes Act 1947 does not classify an employee as temporary or regular. It was submitted that the petitioner did not raise a plea in the petition that there is absolutely no record available with the petitioner company as regards these workers for disputing their claim or for contesting the matter on merits in the appropriate forum. The petitioner was legally entitled to raise a dispute before the Industrial Court regarding the status of the workers along with the other issues. The learned Counsel places reliance on Item 3 of Schedule 2 and the provisions of Section 10(1)(c)(d) of the Industrial Disputes Act 1947 in relation to the powers of the appropriate Government to refer a dispute to the appropriate Court. Reference was made to the provisions of Section 2(k) of the Act of 1947 wherein "industrial dispute" has been defined. The learned Counsel Shri. Prabhakaran submitted that the demand was raised by not only respondent No. 3 Union but by individual workers also. On the crucial aspect of issue of delay it was submitted that no limitation is prescribed in the Act of 1947 for raising a demand. The earlier batch of about 1200 workers which had raised demand was litigating the issue in the appropriate forum. In the trial court there was an order of status quo passed and, therefore, respondent No. 3 - Union and the workers were awaiting the result of the said litigation which finally culminated in an order passed by the Apex Court. The litigation went on for a period between 1997 to 2003. Therefore, in the submission of the counsel, the workers were reasonably expecting outcome of the litigation. It is sought to be contended that after the settlement arrived at by the parties, contract workers started working in the petitioner - company in the place in which the present respondent workers ought to have worked. Sufficient work is available, in the submission of the learned counsel, to which the respondent workers are entitled to. On the issue of jurisdiction of the Court, it is submitted that the Industrial Court could entertain the reference by considering the issues which the Labour Court could have considered under the relevant schedule of the Act of 1947. The learned counsel submitted that reasoned order of reference by the appropriate Government is not strictly necessary in the eye of law. Neither the written demand is necessary on behalf of the workers. There is failure report on record and the appropriate Government after considering the material placed before it exercised its discretion by getting satisfied that there arises an industrial dispute which requires to be referred to the competent court i.e. the Industrial Court.
11. To buttress his submissions, the learned counsel appearing for respondent No. 3 placed reliance on several reported judgments. We may refer to some of them which are necessary and germane to the issue which is required to be dealt with by us. In State of Madras v. C.P. Sarathy 1953 I LLJ 174 (SC) a Five-Judge Bench of the Apex Court observed :
...Indeed, this notion that a reference to a tribunal under the Act must specify the particular disputes appears to have been derived from the analogy of an ordinary arbitration. For instance, in Ramayya Pantulu v. Kutty & Rao (Engineers) Ltd. it is observed:
that if a dispute is to be referred to a tribunal the nature of the dispute must be set out just as it would if a reference were made to an arbitrator in a civil dispute. The tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it.
The analogy is somewhat misleading. The scope of adjudication by a tribunal under the Act is much wider as pointed out in the Western India Automobile Association's case and it would, involve no hardship if the reference also is made in wider terms provided, of course, the dispute is one of the kind described in Section 2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of Government are indicated either individually or collectively with reasonable clearness.
In Niemla Textile Finishing Mils Ltd. v. Second Punjab Tribunal 1957 I LLJ 460 (SC) the Apex Court has observed:
...it is clear that Section 10 is not discriminatory in its ambit and the appropriate Government is at liberty as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation. No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same. There cannot be any classification and the reference to one or the other of the authorities has necessarily got to be determined in the exercise of its best discretion by the appropriate Government.
In Guest, Keen, Williams (Private) Ltd. v. Sterling (P.J.) and Ors. 1959 II LLJ 405 the Apex court has held thus:
In dealing with industrial disputes the application of technical legal principles should as far as is reasonably possible be avoided. An industrial dispute has to be raised by the union before it can be referred; and it is not unlikely that the union may not be persuaded to raise a dispute though the grievance of a particular workman or a number of workmen may otherwise be well founded; then again, even if the union takes up a dispute, the State Government may or may not refer it to the industrial tribunal. The discretion of the State Government under Section 10 of the Industrial Disputes Act is very wide. Thus, workmen affected by standing orders may not always and in every case succeed in obtaining a reference to the industrial tribunal on the relevant points. That is why the tribunals should be slow and circumspect in applying the technical principles of acquiescence and estoppel in the adjudication of industrial disputes. If a dispute is raised after a considerable delay which is not reasonably explained, the tribunal would undoubtedly take that fact into account in dealing with the merits of the dispute. But unless the relevant facts clearly justify such a course, it would be inexpedient to throw out the reference on preliminary technical objections.
In Ram Avtar Sharma v. State of Haryana 1985 II LLJ 187 (SC) the Apex Court in para 6 has held thus:
6. Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that in an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of power of judicial review.
In Telco Convoy Drivers Mazdoor Sangh v. State of Bihar 1989 II LLJ 558 (SC) the Apex Court in paragraph 13 has held:
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. Sate of Haryana 1985 II LLJ 187; M.P. Irrigation Karamchari Sangh v. State of M.P. 1985 I LLJ 519, Shambu Nath Goyal v. Bank of Baroda, Jullundur, 1978 I LLJ 484.
In Ajaib Singh v. Sirhind co-op. marketing cum Processing Service Society Limited 1999 I LLJ 1260 (SC) the Apex court has held:
The object of the Act, therefore, is to give succour to weaker sections of the society which is a pre-requisite for a Welfare State. To ensure industrial peace and pre-empt industrial tension, the Act further aims at enhancing the industrial production which is acknowledged to be life-blood of a developing society. The Act provides a machinery for investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised Courts which are not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and adjudication as per the need of the society keeping in view the fast changing social norms of the developing country like India. It appears to us that the High Court has adopted an usual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act.
In Sapan Kumar Pandit v. U.P. State Electricity Board 2001 SCC (L & S) 946 the Apex Court in paragraphs 9 and 13 held:
9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed on the possibility of what another party would think, whether any dispute existed or not. The section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Governed, there existed such a dispute.
13. Learned Counsel for the Board invited our attention to a recent decision of a two-Judge Bench of this Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty. No doubt in the said decision it is said that the power of the Government under Section 10 of the ID Act cannot be exercised at any point of time or for reviving the matters which have already been settled although law does not prescribe any time-limit. The crux of the observations in the said decision is the following:
A dispute which is stale could not be the subject-matter of reference under Section 10 of the (ID) Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case.
12. We have considered the submissions of the learned Counsel appearing for the respective parties and perused the case laws sited before us. The order of reference made by the appropriate Government to the Industrial Court is questioned in this petition. While dealing with the objections raised by the parties we will have to observe caution that we do not enter into scanning of evidence or determination of the factual disputes raised by the respective parties or enter into merits of the matter.
13. In para 5 of the petition the petitioner stated that out of 1366 temporaries 1348 seem to be temporary who were before respondent No. 2 and the petitioner has record of 1299 temporaries at its disposal. The statement made by the petitioner shows that it is not the case that the petitioner has absolutely no record with them to contest the demand raised by respondent No. 3 - Union or the individual workers. The contention raised on behalf of the petitioner that after lapse of so many years the petitioner company is handicapped to produce the relevant record or to support its case with the aid and assistance of such record does not seem to be convincing.
14. It was submitted by the learned Senior Counsel that the petitioner is prevented to raise dispute regarding employer -employee relationship before the Industrial Tribunal in view of the terms of reference. We find that considering the reasoning adopted by the appropriate Government on the basis of the material collected and placed before it, the petitioner company is not prevented or precluded to raise such a dispute.
15. The learned Senior Counsel appearing for the petitioner submitted that the contentions raised in the demand by individual workers or the Union are vague and ambiguous. What exactly is the demand of the workers and the ultimate prayer is not made clear. It was submitted that the demand is that the workers be given relief which was ultimately given to the earlier batch of workers by the Apex Court. We have perused the demand notice wherein we find that the workers have claimed that they be granted benefits of service like reinstatement, compensation as per the decision of the Hon'ble Supreme Court of India declared on 17-12-2003 without prejudice to file detailed application under Section 2-A. A prayer is made that the petitioner company be directed to reinstate in service with full back wages by granting continuity and consequential benefits. The learned Senior Counsel submitted that a reference is made by the workers to the provision of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 alleging that the petitioner company had committed unfair labour practice. We have considered the relevant provisions of the Industrial Disputes Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. We find that in the 5th Schedule to the Industrial Disputes Act 1947 unfair labour practices are made part of the said schedule. The learned Senior Counsel has referred to Item 3 of Second Schedule to support the contention that for the relief of claim against discharge or dismissal and for relief of reinstatement the jurisdiction lies with the Labour Court. Considering the facts of the case and the demand raised coupled with the provisions of the Industrial Disputes Act and the Schedule appended thereto we are of the opinion that the Industrial Court could consider the reference having its wide powers as reflected from the provision of the Industrial Disputes Act 1947. We are, therefore, of the opinion that the appropriate Government did not commit any error of law in referring the dispute to the Industrial Court.
16. The learned Senior Counsel sought to submit that there is lack of material pleadings in the demand raised by the Union and the workers. We find that the workers had furnished particulars of their appointment orders which indicate the date of appointment and the last date on which they worked with the petitioner company. The petitioner also questioned the locus standi of respondent No. 3 - Union to raise demand. It was submitted that under the provisions of Section 10(2) of the Act of 1947 respondent No. 3 Union does not represent majority of the workers of the petitioner company. The learned Counsel Shri. Prabhakaran for respondent No. 3 states that the demand is not raised only by respondent No. 3 Union but it was also raised individually. Therefore, the reference cannot be faulted on the question of locus standi of respondent No. 3.
17. The learned Senior Counsel Shri Cama laid much emphasis on the issue of delay in raising demand. It was submitted that the delay from 3 years to 18 years cannot by any stretch of imagination be considered to be reasonable and condonable one. There is absolutely no justification for raising demand after such a long lapse of period on whatsoever ground. In reply it was contended by the learned Counsel Shri. Prabhakaran that on the ground of delay alone the order of reference shall not be set aside. The learned Counsel tried to distinguish on facts the reported cases in Nedungadi Bank and Assistant Executive Engineer Karnataka (cited supra) while submitting that in the peculiar fact situation of the case the observations were made by the Apex Court. We have considered these cases and we find that on facts the ratio of these cases cannot be made applicable to the case on hand. We will have to find out whether there is reasonable justification for making demand after a gap of few years. In the present case there is no dispute on the point that the earlier batch of 1200 workers was litigating with the petitioner company between the period from 1997 to 2003 and ultimately the matter got resolved in the Apex Court. A statement was made across the Bar that the workers got some relief by mutual settlement. A statement was also made across the Bar that there was an order of status quo granted by the trial Court and, therefore, the present workers rightfully thought to wait till the outcome of the said litigation. We find force in the submissions advanced by the learned Counsel shri Prabhakaran that there is nothing wrong if the workers decided to wait for the outcome of the litigation which was going on between the earlier batch of workers and the petitioner company. Assuming that there is undue delay on the part of the workers to raise demand in time the Industrial Court has wide powers to mould the relief in an appropriate manner while considering the case on merits. Considering the judgments which have been cited supra by both the sides we find that the Industrial Court is not powerless to mould the relief in such situation if need arises. Therefore, in the fact situation of the case we are of the view that the order of reference passed by the appropriate Government on reaching its satisfaction cannot be discarded on the ground of alleged delay or laches on the part of the workers or the Union.
18. We find that the workers raised their demand after lapse of considerable period i.e. more than 8 to 18 years. There are total 1299 workers an if we calculate the workers who had raised demand upto 7 years the number would come to 1128 workers. Rest of the workers who raised demand between 8 to 18 years are 171. Therefore, we find that the major chunk of the workers who had raised demand were between the period from 3 to 7 years.
19. The learned Senior Counsel for the petitioner submitted that the failure report was submitted on 31st March 2005. Twice this Court had remanded the matter back to the appropriate Government - respondent No. 2 and the last such remand order was dated 23rd February 2006. It was submitted that the reference order was based on the failure report dated 31st March 2005 and therefore the impugned order deserves to be quashed and set aside. We are of the opinion that considering the reasoning adopted by this court earlier for remanding the matter the reference order could not be faulted on the ground that it was based on failure report dated 31st March 2005.
20. Perusal of the failure report shows that the Conciliator had put in efforts to see that the parties could settle the issue, but he failed. It is submitted on behalf of the petitioner that there was absolutely no material with respondent No. 2 to reach his satisfaction for referring the dispute. Respondent No. 2 filed additional affidavit in reply though on the last date of hearing stating therein :
I say and submit that I have gone through the record & proceedings of the conciliation, including the failure report. I have also gone through report of departmental officers visit dated 4-12-2004 under the Contract Labour Act, that the contract labours were found engaged in process/operations which are of incidental to or necessary for the Industry and of perennial nature on which process they could not have been engaged. Therefore I sent the proposal for prohibition of employment of contract labour in these process, to Government on dated 24-12-2004.
A strong objection was raised on behalf of the petitioner on the contentions raised in the affidavit.
21. We will now turn to the reasons adopted by respondent No. 2 in referring the matter to the Industrial Court. We find that a statement was made by the parties before respondent No. 2 along with case laws cited by the parties. Respondent No. 2 was well aware of his powers when it was observed in the order that the appropriate Government performs administrative act and not judicial or quasi judicial work in making reference under Section 10 of the Industrial Disputes Act. It seems that respondent No. 2 observed caution which may be gathered from the observations made in the order to the effect that being an administrative function the appropriate Government cannot delve into the merits of the dispute. Respondent No. 2 rightly observed that he is not determining the rights of the parties by preferring an industrial dispute. We find that the order of reference is a reasoned order. In one of the remand orders passed by this court it was observed that detailed reasoned order is not expected from the Deputy Commissioner of Labour but what was expected was application of his mind and liveliness to the issues raised by the parties should be briefly reflected on merits in his order. We find that respondent No. 2 has applied his mind by maintaining reasonable restrains in not entering into the merits, demerits of the demand or the factual disputes of the matter while reaching his satisfaction. The appropriate Government had exercised its discretion based on the material placed before it and after reaching satisfaction it decided to refer the dispute to the Industrial Court. We find that considering the para meters set out for judicial review of such an administrative decision, no interference is called for in exercise of writ jurisdiction under Article 226 of the Constitution of India in the impugned order.
22. For the reasons stated above, we are not inclined to grant relief to the petitioner as prayed for in this petition. We are convinced that the appropriate Government after reaching it satisfaction had decided to refer the dispute to the Industrial Court.
23. The petition fails and is accordingly dismissed. Rule is discharged with no order as to costs.
R.M. Borde, J.
Naresh H. Patil, J.
24. After pronouncement of the judgment, learned Counsel Shri. S.S. Vidwavns holding for Shri. R.V. Ghuge, for the petitioner states that the operation of this judgment and order be stayed for six weeks for enabling the petitioner to approach the Apex Court. Learned Counsel Smt. N.R. Tingare, holding for Advocate Shri. Rajebhosale for respondent No. 3 has no objection.
25. The effect and operation of this judgment shall stand suspended for a period of six weeks from today.