G.S. Singhvi, J.
1. In this petition the petitioner has prayed for quashing communication, dated March 29, 2001 (Annexure P2) vide which Special Secretary to Government, Labour Department, Haryana, informed him about the Government's decision to reject the demand notice sent by him on the ground of delay and laches. He has further prayed for issuance of a writ in the nature of mandamus to respondent No. 1 to make a reference of the dispute raised by him to the Labour Court.
2. The petitioner was employed as Running Kaimdar in the services of Kaithal Co-operative Sugar Mills Ltd. (hereinafter described as the Mill) on daily wages with effect from November 18, 1990. He was paid off with effect from May 16, 1991. He was again appointed on the same terms and conditions with effect from February 4, 1992 in the Boiler Department of the Mill. There he continued up to February 5, 1993. His service was terminated along with other workmen when the chain of RBC in the Boiler Section was broken. Demand notice, dated January 22, 1992, sent by him in the matter of previous termination of service was rejected by the State Government vide communication, dated March 30, 1992 (Annexure P3) on the ground that he had worked in the service of the Mill for less than 240 days. After the termination of his service with effect from February 5, 1993, the petitioner filed Civil Suit No. 426 of 1995 in the Court of Additional Civil Judge (senior Division), Kaithal. The same was dismissed vide judgment, dated May 11, 2000 (Annexure R1). The learned Additional Civil Judge (senior Division), Kaithal, held that the termination of the service of the workman was legally correct. He further held that the suit was not maintainable because the petitioner had already moved the Labour Court.
3. Having failed to get relief from the civil Court, the petitioner served demand notice, dated May 12, 2000/July 12, 2000, upon the mill. This time the State Government refused to make a reference on the ground of delay and laches. This was conveyed to the petitioner vide Annexure P2, the relevant extract of which is reproduced below:
'On the above cited subject, you are hereby informed that the Government does not deem it fit to send your case to Labour Court for adjudication as after inquiry it reveals that you have filed this case after about 7 years and you have not given any reason for raising the dispute after such a delay. Therefore, your demand notice is hereby rejected on the ground of delay and laches.'
4. The petitioner has placed reliance on the judgment of the Supreme Court in Ajaib Singh v. Sirhind Co-operative Marketing cum-Processing Service Society Ltd. and Anr. AIR 1999 SC 1351 : 1999 (6) SCC 82 : 1999-I-LLJ-1260 and averred that the State Government committed a jurisdictional error by refusing to refer the dispute raised by him on the ground of delay and laches. According to him, no period of limitation has been prescribed for raising a demand by the workman in the matter of termination of his service and, therefore, the reference of the dispute raised by him could not have been declined simply on the ground of delay and laches. He has further averred that there was no delay on his part in prosecuting the remedy, inasmuch as, he had filed civil suit on May 17, 1995 which was decided on May 11, 2000 and immediately thereafter, he had served notice of demand. He has further averred that the action of the Mill to terminate his service is liable to be nullified on the ground of violation of Sections 25G and 25H of the Industrial Disputes Act, 1947 (for short, the Act) because persons junior to him had been retained and new hands were engaged without giving offer of employment to him.
5. In the written statement filed on behalf of the mill, it has been averred that the demand raised by the petitioner was not only delayed, but was barred by the principle of res judicata and, therefore, the Court may not interfere with the decision of the State Government. According to the Mill, the judgment and decree passed by the Additional Civil Judge (senior Division), Kaithal, has become final because the petitioner did not file any appeal and in view of the adverse finding recorded in that judgment, he cannot seek a direction for reinstatement and/or back wages.
6. We have heard learned counsel for the parties. In our opinion, the decision of the State Government to decline reference of the dispute raised by the petitioner is legally unsustainable and is liable to be nullified. It is settled law that the power of the Government under Section 10 read with Section 12 of the Act is administrative and not judicial or quasi-judicial and while exercising that power, the only thing which the Government is required to examine is (sic) whether an industrial dispute exists or is apprehended. For this purpose, the Government can prima facie examine the matter to find out whether a dispute exists or not. The Government can refuse to make a reference only if it finds that the dispute sought to be raised is frivolous or vexatious. However, it cannot delve into the merits of the dispute and refused reference by making an adjudication on its merits. Similarly, the Government cannot refuse to make reference simply on the ground of delay.
7. The ambit and scope of Section 10 of the Act was considered by a Division Bench of this Court in Punjab Anand Lamp Employees Union v. Punjab Anand Lamp Industry Ltd., and Anr. 1997-I-LLJ-338 (P&H-DB;). After discussing various judicial precedents on the subject, the Court culled out the following propositions :
'(1) While exercising power under Section 10 read with Section 12 of the Act, the power of the appropriate Government is administrative and not judicial or quasi-judicial.
(2) In exercising the power, the Government is only required to examine whether an industrial dispute exists or is apprehended. For this purpose, the Government can prima facie examine the matter to find out whether a dispute exists or not.
(3) The Government can refuse to make a reference only if it finds that the dispute sought to be raised is frivolous or vexatious or that the dispute sought to be raised, if referred for adjudication, will have grave adverse consequences on the entire industry in the region.
(4) In the garb of examination of prima facie issue of existence or apprehension of the dispute, the Government cannot delve into merits of the dispute and make an adjudication of the merits or demerits of the action of the employer. The Government cannot usurp the jurisdiction of the Labour Court/Industrial Tribunal to adjudicate the dispute.
(5) In cases of termination of the services of the workmen on the basis of an enquiry by the employer, the Government cannot decline to make reference on the ground that a proper domestic/departmental enquiry has been made by the employer or that the charge has been made by the employer or that the charge has been proved or that the allegation found proved is serious in nature or that the punishment awarded to the workman is just and proper. The Government also cannot refuse to make reference on the ground that the action taken by the employer does not suffer from lack of bona fides or that the workman is guilty of a grave misconduct. All these matters lie in the exclusive domain, of the Labour Courts/Industrial Tribunals which can exercise their power under Section 11A of the Act as interpreted in Workmen of Firestone Tyre and Rubber Company of India (Private) Ltd. v. Firestone Tyre and Rubber Company of India (Private) Ltd. AIR 1973 SC 365 : 1973-I-LLJ-278 (supra).
(6) The Government cannot refuse to make a reference merely because the employer pleads that the relations between the parties are strained. This is again an issue which has to be examined by the Labour Court/Industrial Tribunal while considering the question of relief to be granted to the workman in case the action of the employer is found to be illegal or unjustified.
(7) The Government is duty-bound to apply its mind to the demand made by the workman, the reply of the employer and the failure report and is under a statutory obligation to record reasons and communicate the same to the parties where it declines to make reference and if the Court finds that the reasons are extraneous or irrelevant, the decisions of the Government will be liable to be nullified.'
8. In Ajaib Singh case (supra), the Supreme Court while dealing with the question of delay held as under in 1999-I-LLJ-1260 at p. 1264:
'70. ..... The power of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or board, 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 illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the backwages instead of full backwages
9. In view of the above discussion, we hold that the reason assigned by the Government to decline the reference of the dispute raised by the petitioner is legally unsustainable and the impugned decision is liable to be nullified.
10. We are further of the view that the impugned decision is vitiated due to non-application of mind by the concerned authority. It is an undisputed position that the petitioner had challenged the termination of his service by filing Civil Suit No. 426 of 1995 which remained pending in the Court of Additional Civil Judge (senior Division), Kaithal, till May 11, 2000. Immediately after the dismissal of the suit, he served demand notice, dated May 12, 2000/July 12, 2000. Therefore, it cannot be said that the petitioner had suddenly woken from slumber and raised the dispute after a gap of 7 years. Unfortunately, the concerned authority of the Government completely overlooked these starking facts and refused reference of the dispute by holding the petitioner's demand to be delayed.
11. Sri Kali Ram, learned counsel for respondent-mill, argued that even though the impugned decision of the Government is silent on the issue of res judicata, the Court may uphold the same because the dispute raised by the petitioner is clearly barred by res judicata. He referred to judgment Annexure R1 passed by the Additional Civil Judge (Senior Division), Kaithal, and argued that the petitioner cannot be allowed to reagitate the same issue before the Labour Court. In support of this argument, Sri Kali Ram relied on the decisions of the Supreme Court in Supreme Court Employees Welfare Association v. Union of India AIR 1990 SC 334 : 1989 (4) SCC 187 and of this Court in Pyare Lal v. Presiding Officer, Labour Court, Chandigarh 1994 (3) SCT 245 and Deepak Grih Udyog v. State of Haryana 1996 (1) Recent Revenue Reports 549.
12. The aforesaid argument of the learned counsel appears attractive in the first blush, but we are not inclined to accept the same because:
(a) the Government did not decline the reference of the dispute raised by the petitioner on the ground that it was barred by res judicata and we cannot, while exercising jurisdiction under Article 226 of the Constitution of India, innovate a new ground to sustain the impugned decision;
(b) the question whether the judgment and decree passed by the Additional Civil Judge (senior Division), Kaithal, in Civil Suit No. 426 of 1995 would operate as res judicata can be decided by the concerned adjudicatory body to whom the reference will be made by the Government.
13. The judgments relied upon by Sri Kali Ram do not have any bearing on the case in hand because in none of those cases, the Court had considered the issue whether the decision of the Government to decline the reference of the dispute raised by the workman can be sustained by applying the doctrine of res judicata. That apart, we have serious reservation on the competence of the Civil Court to entertain and decide on merits the controversy which falls within the definition of 'industrial dispute' under Section 2(k) of the Act. In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke and Ors. AIR 1975 SC 2238 : 1976 (1) SCC 496 : 1975-II-LLJ-445 and Rajasthan State Road Transport Corporation v. Krishna Kant AIR 1995 SC 1715 : 1995 (5) SCC 75 : 1995-II-LLJ-728 the Supreme Court held that the civil Court does not have the jurisdiction to entertain matters which fall within the ambit of the Act. This view has been reiterated in Chanderkant Tukaram Nikam and Ors. v. Municipal Corporation of Ahmedabad and Anr. 2002-I-LLJ-842 (SC). In that case, the Supreme Court held that the jurisdiction of the Civil Court to entertain a dispute which falls within the ambit of the Act is impliedly barred. However, while upholding the judgment of the Division Bench of Gujarat High Court, the Supreme Court granted leave to the appellant-workmen to approach the appropriate industrial forum and directed that such forum will dispose of the matter on its own merits.
14. For the reasons mentioned above, the writ petition is allowed. Annexure P2 is quashed and the State Government is directed to refer the dispute raised by the petitioner to the appropriate Labour Court/Industrial Tribunal. However, it is made clear that the mill shall be free to raise all legally permissible objections including the plea of res judicata before the concerned Labour Court/ Industrial Tribunal and also raise the plea that the workman is not entitled to relief because he was a seasonal worker or the termination of his service did not amount to retrenchment within the meaning of Section 2(oo) of the Act.