R.K. Patra, J.
1. The State Government made reference to the Labour Court to adjudicate as to whether the discharge of opposite party No. 3 Abhimanyu Pradhan from service as Cadre Secretary of the Aska Co-operative Central Bank Limited, Aska with effect from March 12, 1981 was valid and/or justified. The Labour Court in the award dated September 20, 1999 (vide I.D. Case No. 19 of 1996) at Annexure-3 held that the punishment of discharge is disproportionate to the misconduct found proved. It accordingly held that opposite party No. 3 would get full back wages for the period of suspension, i.e. from June 27, 1975 to March 12, 1981 and from March 13, 1981 till his reinstatement, he should be paid 25% of back wages subject to the condition that the management reinstates him within three months from the date the award became enforceable. The management seeks to assail the validity of the said award in this writ petition.
2. Shri Rath, learned counsel for the petitioner, assails the award on two grounds:
(i) the Tribunal erred in law in deciding the dispute which was raised 15 years after opposite party No. 3 was discharged from service and (ii) the charges having been found established by the Labour Court, the order of discharge ought to have been sustained.,
3. Ground No. (i)
The Supreme Court in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., AIR 1999 SC 1351 : 1999 (6) SCC 82 : 1999-I-LLJ-1260 has held that the relief cannot be denied to a workman merely on the ground of delay because the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act, 1947. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice but 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 Labour Court dealing with the case can appropriately mould the relief.
4. In Sapan Kumar Pandit v. U.P. State Electricity Board, AIR 2001 SC 2562 : 2001-II-LLJ-788, it was observed that the words 'at any time' in Section 10(1) of the Industrial Disputes Act, 1947 are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this Section itself to indicate that the time has come circumscription. The words 'where the Government is of opinion that any industrial dispute exists or is apprehended' have to be read in conjunction with the words 'at any time'. They are, in a way, complimentary to each other. The Government's power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only no longer as the industrial dispute exists. In other words, the period envisaged by enduring expression 'at any time' terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference. 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 imposed 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 Government there existed such a dispute.
5. This being the legal position, the award cannot be invalidated merely on the ground that the dispute was raised at a belated stage.
6. Ground No. (ii)
Shri Rath rightly and fairly submits that opposite party No. 3 was found guilty of minor charges and, as such, the order of discharge is disproportionate to the charges proved. We may state that under Section 11-A of the Industrial Disputes Act, 1947, if the Labour Court/Tribunal is satisfied that the order of discharge or dismissal is disproportionate to the charges proved, it can award any lesser punishment in lieu of discharge or dismissal, as the circumstances of the case may require. In the present case, the Labour Court lost sight of this provision and did not substitute any lesser punishment in lieu of the discharge. It is stated at the Bar that opposite party No. 3 has already attained the age of superannuation on December 31, 2002 and, therefore, the question of reinstating him in service does not arise pursuant to the impugned award. Shri Rath has submitted a calculation-sheet of wages payable to opposite party No. 3 from March 13, 1981 to December 31, 2002. The total amount of wages as per the calculation-sheet comesto Rs. 2,50,165.00. AsumofRs. 24427-has been paid to him in compliance of the provisions of Section 17-B of the Act. Therefore, the balance wages comes to Rs. 2,47,723.00. As per the impugned award, opposite party No. 3 is entitled to 25% of the back wages which comes to Rs. 61,830.75. Opposite party No. 3 has also not been paid the subsistence allowance from June 27, 1975 to March 12, 1981.
7. Considering the facts and circumstances, we direct the petitioner to pay to opposite party No. 3 a sum of Rs. 60,000/-(Rupees Sixty thousand) towards 25% of his back wages and the subsistence allowance for the above period by February 28, 2003.
8. With the above observation and direction, the writ petition is disposed of.
M. Papanna, J.
9. I agree.