Judgment:
Ashok Kumar Mathur, J.
1. The petitioner by this writ petition has challenged the order of the State Government, dated 19th September, 1983 whereby the State Government has refused to make reference under Section 10 of the Industrial Disputes Act to the Labour Court for its decision.
2. The petitioner entered the service of Respondent Modern Threads (India) Limited, Raila, District Bhilwara (here in after referred as 'the respondent Company'), on being appointed as Assistant Purchase Officer on 1st January, 1982. The petitioner was thrown out of work after being assaulted on 7th October, 1982. He raised and Industrial Dispute regarding termination of service. The Conciliation proceedings were undertaken and ultimately a failure report was given and the petitioner approached the Government for making reference to the Industrial Tribunal/Labour Court, but the same was denied.
3. The principal contention of the learned counsel for the petitioner is that the petitioner has put in more than 240 days service and therefore he is entitled for benefit of Section 25F of the Industrial Disputes Act. The Govt. after considering the matter refused to make reference by the order dated 19th Sept. 1983 on the ground that the petitioner has not completed 240 days, therefore, the Government did not think it proper to make the reference to the Labour Court. Aggrieved by this the petitioner has filed the present writ petition.
4. The grievance of the petitioner is that whether he has completed 240 days of service or not, this matter could only be decided by the Tribunal or Labour Court after taking necessary evidence. This amounts to determination of the issue and the Government cannot take decision in this behalf. In this connection the learned counsel for the petitioner cited the case of the M.P. Irrigation Karamchari Sangh v. State of M.P. and Anr. : (1985)ILLJ519SC , wherein their Lordships of the Supreme Court have held as under:
While conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference; (2) adjudication. When a reference is rejected on the specific plea that the Government cannot bear the additional burden, it constitutes adjudication and there by usurpation of the power of a quasi-judicial Tribunal by an administrative authority namely, the Appropriate Government. There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference, the Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunals for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act, nugatory.
5. As against this Mr. Singhvi appearing for the respondent No. 2 submits that this writ petition is extremely belated and the petitioner has challenged the order dt. 19-9-1983 by filing this writ petition in the year 1985 and that there is no satisfactory explanation for the delay. In this connection he has invited my attention to Sri Harinath Prasad v. State of Bihar and Ors. 1977(2) SLR 390 and D.B. Civil Special Appeal No. 370 of 1984 Kanhaiya Lal v. D.J. Banswara, decided on November 2, 1984. As against this Mr. Mridul has cited before me the case of G.P. Doval and Ors. v. Chief Secretary of U.P. Government 1984(2) SLR 555. It has been argued by the petitioner that after refusal of the reference the petitioner has been consistently making applications to draw the attention of the State Government to reconsider the matter. The petitioner is admittedly a low paid employee and he thought that he might get relief from the State Government on reconsideration of the order dated 19th September, 1983.
6. In the case of G.P. Dovals and Ors. v. Chief Secretary, Government of U.P. and Ors. (supra), it has been observed as under:
A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents, therefore, submitted that the court should throw out the petitions on the ground of delay, latches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquieseced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than twelve years and are operating the same for further promotion to utter disadvantage of the petitioners. Petitioner went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult, to rush to the Court. Therefore, the contention must be rejected.
7. Since the petitioner belongs to lower echelon of the society and he is out of employment and he thought perhaps the Government may reconsider the matter, I think the delay in such matter will not warrant dismissal of this writ petition.
8. In view of the law laid down by their Lordships of the Supreme Court that if there are triable issues then the State Government should not take up the matter and decide the matter, it is proper to refer the matter to the Labour Court for its proper adjudication,
9. Thus, in the result I allow this writ petition and quash the communication dated 19th September. 1983 and direct the State Government to reconsider the matter for making the reference to the Labour Court.