Shri Subhash Chand Vs. Govt. of Nct and anr. - Court Judgment

Swatanter Kumar, J.

1. By this common judgment I would dispose of the aforementioned two writ petitions, as a common question of law in regard to ambit and scope of powers of the appropriate Government to make or decline a reference under Section 10(1)(c) of the Industrial Disputes Act (hereinafter referred to as Act), arises for consideration, though on somewhat different facts.

2. In order to examine the question of law which requires consideration by the Court, it will be appropriate to refer to the facts of Subhash Chand (Supra) at the very outset, while reference to the facts of the other writ petition could be made towards the later part of the judgment. Subhash Chand, the workman joined the service with Horticulture Department in the Office of Development Commissioner of Govt. of NCT of Delhi on 20th September, 1987 as a Mali. His services were treated as daily rated muster roll worker. According to the workman, respondent No.2 arbitrarily terminated the services of the petitioner without giving any notice, compensation, holding any inquiry and following the rules even in regard to last come first go on 30th November, 1990. In the writ petition it is stated that workman was poor and illiterate. He requested the authorities to take him back into service on different occasions and thereafter he served a legal demand notice on 26th November, 1997 upon the respondent No.2 calling upon him to reinstate the workman with continuity in service and full backwages. Respondent No.2 did not react to the notice of the workman as such the workman filed his statement of claim in December 1997 before the Conciliation Officer. On 6.2.1998, respondent No. 2 filed its reply before the Conciliation Officer denying the allegations to which another Explanationn was filed by the workman wherein he explained the cause of delay in approaching the Conciliation Officer. According to the workman he could not report for duty from December 1990 to 1993 on account of illness and domestic problems. He was a very poor and illiterate person who was made to run from pillar to post for getting his job and as a result of some false assurances given, he had not taken the action prior to 26th November, 1997, the date on which he served the legal demand notice. On 13th May, 1998, the workman also filed a rejoinder to the reply filed by the Management and finally vide order dated 13th October, 1998, respondent No.2, i.e., the appropriate Government rejected the request of the workman and declined to make a reference. The order declining reference reads as under :

'Admittedly cause of action arose on 30.11.1990 when services of Shri Subhash were alleged to have been terminated by the management whereas statement of claim has been filed on 15.12.1997 i.e. after a gap of more than 7 years. Thus the claim is highly belated.'

3. After waiting for some time, again on 6.3.2000 the workman filed an application for review of the order dated 13th October, 1998 referring to the various judgments of the Supreme Court and the High Courts on various aspects and stating that the reference prayed for by the workman could not be declined by the Government on the plea of limitation and it was a matter which fell within the domain and jurisdiction of the Labour Court. This application was also rejected by the appropriate Government vide its order dated 14th September, 2000 which was communicated to the workman. The order reads as under :

'The President,

Delhi Prashasan Vikas Vibhag Industrial

Employees Union,

Aggarwal Bhawan,

G.T. Road, Tis Hazari,

Delhi-54

Sub : Request for review of rejection of reference in case of Sh. Subhash v. Horticulture Department Govt. of NCT of Delhi vide order No. F-24(3572)/98-Lab. Dated 13-10-1998.

Sir,

With reference to above, I am directed to inform you that application filed by you for review of order dated 13.10.1998 is carefully examined and considered in this office. Case laws cited in the application are also taken into consideration. There it is pertinent to mention that Hon'ble Supreme Court of India vide order dated 28/1/2000 in Redunqadi Bank Ltd. v. K.P. Madhavan Kutty and Ors. held that a dispute which is state could not be subject matter of reference under section 10 of the I.D. Act, 1947.

In view of above, direction taken in the matter by the Secretary (Labour) still holds good and thus it is not possible to accede to your request.'

4. Aggrieved from the orders passed by the appropriate Government dated 13th October, 1998 and 14th September, 2000 the petitioner has approached this Court under Article 226 of the Constitution of India praying for setting aside of the said orders and further with a direction to the appropriate Government to make a reference of the industrial dispute raised by the petitioner for adjudication under Section 10 of the Act.

5. Before I proceed to discuss the merits or otherwise, of the arguments raised by the learned counsel appearing for the parties in regard to correctness and legality of the impugned orders, it will be appropriate to refer to the judgments of the Supreme Court and various High Courts on the matter in issue, involved in the present writ petitions. Reference to the development of law in this regard is necessitated for the reason that somewhat divergent views have been expressed by the Courts while explaining the scope and limitations of jurisdiction vested in the appropriate Government while exercising its administrative power of making a reference under Section 10(1)(c) of the Act.

6. Reference following decision of the Constitutional Bench of the Supreme Court in the case of State of Madras v. C.P. Sarathy, : (1953)ILLJ174SC can be usefully made at the very outset :

'But, it must be remembered that in making a reference under section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it anytheless administrative in character. The Court cannot, thereforee, canvass the order of 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 determination.

7. Explaining the ratio of the decision in Sarathy's case, in Western India Match Co. Ltd. v. Western India Match Co. Workers Union, : (1970)IILLJ256SC it was observed as under :

'In the State of Madras v. C.P. Sarathy, this Court held on construction of Section 10(1) of the Central Act that the function of the appropriate Government there under is an administrative functions. It was so held presumably because the Government cannot go into the merits of the dispute its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible.'

8. After referring to the earlier decisions on the subject in 'Shambhu Nath Goyal v. Bank of Baroda, Jullundur, : (1978)ILLJ484SC it was held that 'in making a reference under section 10(1), the appropriate Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it anytheless administrative in character.' Thus, there is a considerable body of judicial opinion that while exercising power of making a reference under Section 10(1), the appropriate Government performs an administrative act and not a judicial or quasi-judicial act.'

9. The scope and scheme of Sections 10 and 12 of the Act were also examined by the Supreme Court in State of Bombay v. K.P. Krishnan and Ors., : (1960)IILLJ592SC . It was held therein as under :

'Even if the appropriate Government may be acting under section 12(5) by itself and independently of Section 10(1) does not confer power on the appropriate Government to make a reference. While deciding whether a reference should be made under section 12(5) it would be open to the appropriat Government to consider, besides the report of the Conciliation Officers other relevant facts which may come to its knowledge or which may be brought to its notice. Just as discretion conferred on the Government under section 10(1) can be exercised by it in dealing with industrial disputes in regard to non-public utility services even when Government is acting under Section 12(5), so too the provisions of the second proviso to Section 10(1) can be pressed into service by the Government when it deals with an industrial dispute in regard to a public utility service under Section 12(5).'

10. It was further held by the Supreme Court that 'whether Section 12(5) is construed as making it obligatory on the Government to make a reference when it is satisfied that there is a case for reference or as only conferring a discretion, if in refusing to make a reference Government is influenced by reasons which are wholly extraneous or irrelevant or which are not germane, then its decision may be open to challenge in a court of law. Though considerations of expediency cannot be excluded when Government considers whether or not it should exercise its power to make a reference it would not be open to the Government to introduce and rely upon wholly irrelevant or extraneous considerations under the guise of expediency.'

11. Again in Bombay Union of Journalists and Ors. v. The State of Bombay and Anr., : (1964)ILLJ351SC , which has been relied upon by both the parties, the relevant scheme of the Act as disclosed by Section 12 viz.-a-viz. the powers of the appropriate Government under Section 10 was discussed. It was held therein as under :

'When the appropriate Government considers the question as to whether a reference should be made under section 12(5), it has to act under section 10(1) of the Act, and Section 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under Section 12(4), the appropriate Government ultimately exercises its power under section 10(1), subjects to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference, when the dispute has gone through conciliation and a failure report has been made under Section 12(4).'

12. However, it was further held by the Supreme Court which also needs re-production and it is re-produced hereunder :

'But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government my refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, thereforee, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 10(1).'

13. A reference to a Supreme Court ruling in The M.P. Irrigation Karamchari Sangh v. State of M.P. and Anr., : (1985)ILLJ519SC is also very much relevant. In an appeal before the Supreme Court it was contended that the High Court had failed to properly delineate the jurisdiction of the Government under Section 10 read with Section 12(5) of the Act. It was contended before the Supreme Court that question raised by the appellant had to be decided by the Tribunal on evidence to be adduced before it and it could not be decided by the Government on a prima facie examination of the facts of the case. This submission was met with the plea that the Government had in appropriate cases at least a limited jurisdiction to consider on a prima facie examination of the merits of the demands, whether they merited a reference or not.

14. After considering the rival contentions of the parties the Hon'ble Supreme Court observed as under :

'..................But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not.'

15. It was then held by the Supreme Court as under :

'We find that the approach made by the High Court has wrong and the reliance on the above passage on the facts of this case, is misplaced and unsupportable. This Court had made it clear in the same Judgment in the sentence preceding the passage quoted above that it was the province of the Industrial Tribunal to decide the disputed questions of fact.'

'.........Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal...................'

16. It was then finally held by the Supreme Court 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 specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpationof the power of 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. 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 Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Sections 10 and 12(5) of the Industrial Disputes Act nugatory.'

17. The observations of the Supreme Court in Ram Avtar Sharma and Ors. v. State of Haryana and Anr., : (1985)IILLJ187SC that making or refusing to make a reference under section 10(1), the Government cannot delve into the merits of the dispute also needs attention. The relevant portion of the judgment reads as under :

'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 an industrial dispute exits or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exits 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 grounds irrelevant, extraneous or not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review.'

18. The relevant portion of the judgment of the Supreme Court in Workmen of Syndicate Bank, Madras v. Government of India and Anr., : (1985)ILLJ93SC , which is also very much relevant for throwing light on the powers of the Government under section 10 of the Act is re-produced hereunder :

'We are of the view that the ground on which the Government of India has refused to refer the dispute relating to the imposition of punishment of stoppage of three increments of Shri Murugavelu to the Industrial Tribunal is not a valid ground. It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental enquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker's claim for adjudication. Such a situation cannot be countenanced by law. We must, thereforee, set aside the order dated 2.4.1981 passed by the Government of India declining to make a reference of the industrial dispute for adjudication to the industrial Tribunal.'

19. Again the observations of the Supreme Court in Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors., : (1989)IILLJ558SC , which are relevant for the proposition under consideration are re-produced as under :

'While exercising power under Section 10(1) 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. It is true that in considering the question of making a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute 'exists or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits.'

20. Reading of the above judgments of the highest Court of the land shows that provisions of Section 10 of the Act were construed not quite liberally. The jurisdiction of the State Government was stated to be an administrative function and not a judicial or quasi judicial function. Formation of an opinion under Section 10(1) of the Act was relatable to whether an industrial dispute existed or is apprehended 'It was not the same thing as to adjudicate the dispute itself on merits'. In other words, the appropriate Government was not competent to travel beyond the limits of forming a prima facie opinion with regard to existence of the dispute or that an industrial dispute was apprehended. The Government was not competent to directly or indirectly determine the merits of the dispute. Formation of an opinion without encroaching upon the domain of adjudication was the essence of powers vested under Section 10(1) of the Act.

21. The Industrial Law, developed as a result of subsequent amendments to the Act as well as by judicial pronouncements by different Courts, is having far reaching effects on the various facets of this law. Section 11(a) was incorporated in the Act by Section 3 of the Industrial Disputes Amendment Act, 1971 with effect from 15th December, 1971. The purpose of this amendment was primarily to enlarge the scope of the adjudication process before the Industrial Court or Tribunal and vest powers of wider magnitude in the Courts. The basic intent was to prevent the unfair labour practice by the Management and to ensure that the workman was not subjected to victimisation. This Section really did not effect the power of the Government under Section 10(1) of the Act in relation to refer or not to refer the industrial dispute to the Labour Court or Tribunal in exercise of its administrative power. One obvious conclusion of this amendment is that a workman can also claim a reference even with regard to the quantum of punishment even in a case of proven misconduct. He could raise an issue that the punishment inflicted upon him was ex-facie disproportionate to the gravity of the misconduct. The Government would have hardly any jurisdiction to decline a reference even of this kind within the purview and scope of the provisions of Section 10 of the Act. A Division Bench of Punjab and Haryana High Court in Ramphal v. State of Haryana, 1995 (4) SLR 184 took this view which was subsequently followed in various judgments including the Full Bench of that Court in the case of Radhey Shyam v. State of Haryana, 1997 (6) SLR 1.

22. Section 2(a) was inserted in this Act by amending Act of 35 of 1965 which was effective from 1.12.1965 with a clear legislative mandate to enable an individual workman to raise an industrial dispute in relation to and in the event he had been discharged, dismissed, retrenched or his services were otherwise terminated by his employer. The espousing of a cause of the workman by a Union to this particular class of cases was not mandatory. These developments would have definite impact on the scheme of this Act. Particularly, the appropriate Government is expected to be alive to the situation that the law framers have imposed an obligation upon them to consider the question of reference of an industrial dispute to the Labour Court/Industrial Tribunal effectively, meaningfully and to ensure that the unfair practices or victimisation was not permitted to prevail. The discretion of the appropriate Government under Section 10 is of a wide magnitude but it must be exercised in consonance with the provisions of the Act as interpreted by judicial pronouncements. Limitations on exercise of such jurisdiction are inbuilt in various Sections of the Act and particularly Section 2(a), 11(a) and 22 of the Act. The wide discretion vested in the appropriate Government has to be exercised in a manner so as to keep an equilibrium between industrial harmony without hampering the industrial progress of the country. To make a reference or to deny the same, either way must be forming of an opinion based upon some kind of plausible reasoning. The power whether administrative or in furtherance to legislative provisions, cannot be exercised arbitrarily and the process of decision making is entirely based upon the reasoning and fairness adopted in the decision making process. The Full Bench in the case of Radhey Shyam (Supra) while answering the question raised whether the appropriate Government is entitled to examine the merits of the case while forming an opinion in relation to existence or apprehension of an industrial dispute and its extent, answered upon discussion as under :

'After going through the statutory provisions and the various decisions of the Supreme Court as well as the High Courts, our answer to the fourth proposition is that by insertion of Section 11A in the Act only the powers of the Labour Courts/Tribunals have been enlarged. Insertion of Section 11A has not taken away the powers of the appropriate Government to refer or not to refer an industrial dispute to the Labour Court or the Tribunals, as the case may be, of course, subject to the limitations imposed by the law as laid down by the authoritative pronouncements of Supreme Court. Section 11 comes to play only after the industrial dispute is referred to the Labour Court, Tribunal or National Tribunal or the appropriate Government for adjudication.

In view of our discussion made above, no doubt is left that the observations of the Supreme Court in Bombay Union of Journalists v. State of Bombay (Supra) that the appropriate Government can consider prima facie on the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with Section 12(5) are still applicable. The appropriate Government is not precluded from considering the prima facie merits of the dispute and to refuse to refer the dispute under section 10 read with Section 12(5), if the claim made is patently frivolous is clearly belated even after the insertion of Section 2A and 11A in the Act.

After reading Sections 10 and 12 together, in our view, it is incumbent upon the Government to record and communicate to the parties concerned its reasons for refusing to make a reference. It has been provided in Section 12(5) itself that where the appropriate Government does not make a reference, it shall record and communicate its reasons to the parties concerned. Even otherwise, for refusing to refer any dispute under section 10 it is necessary for the Government to give reasons for refusing to refer the industrial dispute to the Labour Court or the Tribunals on the principles of natural justice. The Government is required to pass a speaking order when refusing to refer the dispute to the Labour Court or the Tribunals as the case may be so that the party concerned may be able to know the reasons for tis refusal. We, thus, answer this proposition of law, as referred to above, accordingly.

The cumulative effect of our answers to the above questions can be montaged and concisely summed up to say, that introduction of Section 2(A) read with Section 11(A) as it is on the statute book today, does not materially affect the existing powers of the Government to make a reference under Section 10 of the Industrial Disputes Act within the afore-stated well defined limitations. Thus, the scope of power exerciseable by the appropriate Government falls in a very narrow compass and does not in any way permit it to encroach upon the determination of merits in dispute. The amendment of Section 2(A) only lifts an embargo which earlier existed on an individual workman to have his dispute referred through the competent government for adjudication to a competent forum i.e. Industrial Court or Tribunal etc. The legislative intent behind such amendment appears to be more tilted towards enlarging the scope of a referable dispute by the concerned authority rather than to put any further shakles on the existing power of the Government to make a reference of an industrial dispute under the provisions of this Act. The jurisdiction of the appropriate Government is primarily administrative in its nature and scope. It must restrict its decision with regard to a dispute being non-existence vexatiousand/or frivolous. This power extends to declining reference of a dispute in the event of industrial harmony being adversely affected as understood in its larger sense. Industrial harmony cannot be restricted to a dispute of a few workmen with its management in an industry. A section of industrial units should stand effected and fall within the clutches of adversity arising out of such industrial dispute. In other words involvement of larger industrial section treated as a whole would alone result in disturbance of industrial harmony, infringe public utility and larger public interest. The expression 'industrial harmony' must not be understood in its narrow sense so as to frustrate every dispute on the ground that there is likelihood of some clash between the workman of an industry and the management.

The percept of industrial law with its liberal amendments justifies liberal reference of industrial dispute, more tilted towards recognition and acceptance of dispute of individual workman of the nature prescribed under Section 2(A). The language of the amended provisions of Section 2A read with Section 10 and11A of the Industrial Disputes Act further substantiates the view taken by us. The concept of deeming dispute and reference of such a dispute to the Industrial Tribunal or Labour Court certainly enlarges the scope of referable disputes with some liberal construction.

On the analysis of the entire matter, our answer to the first question is as hereunder (however, subject to our answer to the other questions) which have been enumerated above.

(1)The appropriate Government can go into the merits of the dispute prima facie for the purpose of finding out whether an industrial dispute exists or is apprehended and whether the Government should make a reference or not.

(2)But in doing so, the appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis.

(3)If the claim is patently frivolous and vexatious then the appropriate Government may refuse to make the reference.

(4)In deciding whether to make a reference or not, the Government may take into consideration whether the impact of the claim on the general relations between the employer and the employees in the regions is likely to be adverse disturbing industrial harmony understood in its larger sense.

(5)While the appropriate Government can examine the patent frivolousness of the demands, it shall not itself adjudicate on the demands made by the workman, which should be left to the Labour Court/Tribunal concerned. The Government should be very slow to attempt an examination of the demand with a view to decline the reference.

10. I may notice here that in the Full Bench Judgment the Bench had observed that as there is no limitation prescribed under the provisions of the Industrial Disputes Act and as such a workman can raise an industrial dispute at any time. However, indicated that period of 5 years would be a reasonable period where after the workman should explain the reasons for longer delay. This particular conclusion of the Full Bench was over-ruled by the Supreme Court in the case of Ajaib Singh v. Sri Hind Co-operative Marketing cum Processing Service Society Limited and Anr., : (1999)ILLJ1260SC . The judgment of the Supreme Court would have to be examined in the light of the subsequent judgments of the Supreme Court wherein the law stated by the Supreme Court in this case was diluted and in subsequent judgments the Supreme Court clearly stated that even the appropriate Government would have within its rights to decline a reference if the dispute was non-existent or was so stale that unexplained prolonged delay would render the dispute as one which had extinguished and thus not referable.

11. The appropriate Government would have to apply its mind to certain basic conditions while considering the request of the persons covered under the provisions of this Act for a reference to the Labour Court or Tribunal, as the case may be, under Section 10 of the Act. On the facts averred in the application for a reference it must be averred that there is employer-employee relationship between the parties, the dispute exists or is apprehended between the parties and the demand in that regard has been raised within a reasonable time. These ingredients would have to be seen in the light of conciliation report submitted by the Conciliation Officer to the appropriate Government at the appropriate stage. In the case of Shalimar Works Limited v. Their Workmen, AIR 1959 SC 1216 the Supreme Court introduced the concept of reasonableness in invoking such jurisdiction.

'It is true that there is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. 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 S. 33A in this case; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time.

12. The ambit and scope of powers vested in the appropriate Government under Section 10 of the Act has been a matter of concern, consistently and at all times, it would thus be useful to refer to the recent judgments of the Supreme Court in regard to scope of, as well as effect of delay on the part of the workman in claiming a reference under these provisions.

13. As it is clear that the views expressed by the Supreme Court in the case of Bombay Union of Journalist (Supra) was followed in The M.P. Irrigation Karamchari Sangh (Supra) which again was followed in Telco Convoy Drivers Mazdoor Sangh (Supra), and the principles discussed in earlier judgments were specified and it was reiterated with great emphasis that while exercising powers under Section 10(1) of the Act the function of the Government is administrative and not judicial or quasi judicial. It has to primarily determine whether a dispute exists or is apprehended. An exception was also carved on the basis of a domain being perverse and frivolous. The Courts were expected to be very careful in examining the matter that the Government does not usurp the powers of the Tribunal. Somewhat wider interpretation was given to this jurisdiction by the Supreme Court in the case of Rajasthan STRC and Anr. v. Krishna Kant and Ors., : (1995)IILLJ728SC where the Court held as under :

' (4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.'

14. I have already noticed that in Ajaib Singh's case (Supra), the Supreme Court held that the Limitation Act does not apply the view of the Full Bench, was not correct stating in regard to time frame under the Industrial Disputes Act wherever there is a delay back-wages could be denied or contained. No reference to the Labour Court could generally be questioned on the ground of delay alone and a reference was held to be sustainable even after lapse of 7 years. This similar view was also taken in Gurmail Singh v. Principal, Govt. College of Education and Ors., 2000 (9) SCC 496.

15. However, this trend of the judicial pronouncements showed a somewhat divergent view. In the case of The Nedungadi Bank Limited v. K.P. Madhavankutty and Ors., 2000 (1) SLR 636, the Supreme Court while dealing with the case of demand raised after a lapse of 7 years held as under:

' 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. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 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 industrial dispute was ex facie bad and incompetent.'

16. This view was followed with approval by the Supreme Court in the case of Assistant Executive Engineer Karnataka v. Shivalinga, : (2002)ILLJ457SC where the Court after considering the judgments of Ajaib Singh (Supra) and Sapan Kumar Pandit v. U.P. State Electricity Board, 2001 SCC 946 stated that the principle could follow in appropriate cases but where there is no dispute as to relationship between the parties in that case the services of the workman were terminated on 25th May, 1985 and he had approached the Labour Officer on 17th March, 1995. The Labour Court found the delay of 9 years fatal and rejected the reference. The High Court interfered with the order which was set aside by the Supreme Court while holding as under :

' In cases where there is 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 that 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 the 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 the writ proceedings, thereforee, shall stand set aside and the award made by the Labour Court shall stand restored. The appeal is allowed accordingly.'

17. Still in an another case of S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, : (2003)IILLJ359SC , though the Court granted relief to the workman but clearly enunciated the principle that delay in making a demand could bring adverse consequences to the case of the workman. The Court held as under :

'17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons thereof. 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 as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so-when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen. In Nedungadi Bank Ltd. v. K.P. Madhavankutty a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sanmanta v. Union of India it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by the conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay.'

18. We may also notice here that in Sapan Kumar Pandit's case (Supra), the Supreme Court had taken the view as taken in Ajaib Singh's case (Supra) and held that if the dispute remains alive though not galvanised by the workman or the Union on account of other justified reasons it does not cause the dispute to vein into total eclipse. The High Court should not have quashed the reference merely on the ground of delay and long delay for making an adjudication which could be considered by the adjudicating authorities while moulding its reliefs. Their Lordships referred to the earlier view of the Supreme Court in Western India Match Company Ltd. v. Worker Union, : (1970)IILLJ256SC .

19. It appears to be a settled principle of law that while the appropriate Government is exercising its power to make a reference under Section 10(1) of the Act such power is wide but has definite limitations in terms of the prescribed law. The Government would form an opinion as to relationship, and whether dispute exists or is apprehended. This exercise of powers is purely administrative in nature and must clearly be understood with definite distinction from a judicial or a quasi judicial power. Government cannot abrogate on to itself the power to adjudicate any question. The formation of opinion has to be prima facie based upon records before the Authority as well as the report submitted by the Conciliation Officer under Section 12 of the Act. An element of expeditious disposal and determination of industrial dispute is contemplated under various provisions of the Act and even in under Section 12(6) of the Act where the Conciliation Officer is required to submit a report within 15 days of the commencement of conciliation proceedings. For granting any extension of time there is a duty casted upon the Conciliation Officer to extend the period upon agreement between the parties appearing before the Conciliation Officer. There have been cases where the Courts have taken the view that a serious dispute with regard to relationship of employer and employee could not also be gone into by the appropriate Government in exercise of its powers under Section 10 of the Act and such matter requiring adjudication should be referred to the Labour Court. With regard to the restricted scope of Section 10 of the Act, the consistent view of the Supreme Court has been that it should exercise powers within limited domain specified under the provisions of the Act and should not adjudicate matters which would otherwise fall within the domain of the Labour Court or Industrial Tribunal. Furthermore, the appropriate Government must state reasons for declining a reference particularly where it declines reference in furtherance to the demand raised by an workman the material it considers should be germane to the dispute and not extraneous. A view has also been taken that a patently frivolous, perverse, vexatious, and a stale dispute which does not remain to be an industrial dispute, reference of such dispute could validly be declined by the appropriate Government. In this regard, amongst others, reference can be appropriately made to the judgment of the Supreme Court in the case of Bombay Union of Journalists (Supra).

20. In view of the above decision which illustratively places the development of Industrial Law in regard to concepts aforenoticed and clearly provides the precepts which could usefully be applied to different cases which may come up for determination before the Court. Analysis of the above decisions clearly show that the appropriate Government is vested with administrative power to make or decline a reference. Such power is to be exercised in line with the law enunciated by the Court and essentially must not transgress its jurisdiction and travel into the matters of final determination which would squarely fall within the jurisdiction of the Labour Court or Tribunal. The expression 'It may at any time' does take the jurisdiction of the appropriate Government to make a reference beyond the restrictions of any limitation in terms of the period but still unexplained prolong delay could prove fatal to the case of the workman either in terms of denial of reference or denial of backwages for entire or part of the period in question. Certain enough the appropriate Government does not exercise its powers under the provisions of the Act as a mere administrative formality or a post-office. Application of mind for valid and appropriate reasons is the pre-requisite to denial or making a reference in terms of these provisions. The reasonableness in terms of period is sufficiently adopted under the scheme of this Act on the one hand there is no specific limitation stipulated for raising a demand or making a reference but the proceedings of the authorities immediately preceding the reference as indicated in Section 12 of the Act and post proceedings or determination of the dispute again within the specified time under Section 10(2)(a) of the Act shows the legislative intentment for adherence to the prescribed schedule of time and expeditious disposal of industrial dispute. One of the irresistible conclusion of the above discussion is that the concept of reasonable time has great application to objective implementation of various provisions of this Act. The unreasonable unexplained delay may waive with the authorities as well as with the Courts while dealing with the matters. Thus, it may not be quite correct to argue that Government would have no jurisdiction to decline reference of an industrial dispute, which has become stale and has extinguished because of unexplained prolonged delay. The time may not be of essence but certainly is a relevant factor to be taken into consideration by the appropriate Government at the appropriate stage.

21. The above enunciated principles and their objective appreciation in their correct perspective unambiguously demonstrate the guidelines for determining the issues which may arise before the Courts as well as the appropriate Government when it exercises the powers of reference under the provisions of Section 10(1)(c) of the Act. In addition to the five principles enumerated by the Full Bench in the case of Radhey Shyam (Supra), I would also refer to the following principles as well :

(a) The dispute is so belated or stale that direct consequence thereof is the extinguishment of the industrial dispute itself. Existence of the dispute being condition precedence to the reference, the power of the Government to decline a reference would not stand wiped out just because the provisions of the Section uses the expression 'at any time'.

(b) The alleged dispute is so stale that it will be so prejudicial to either party to dispute that it would be unfair unjust to make a reference. Furthermore, it may not be possible for the Labour Court/Tribunal to mould the relief because of unexplained prolonged delay. While exercising its administrative power the Government must strictly confine itself within the domain of forming an opinion without traveling into the merits of the case and determination thereof. It must not usurp the power of the Tribunal.

22. In the case of National Engineering Industries Ltd. v. State of Rajasthan and Ors., : (2000)ILLJ247SC the Supreme Court emphasise the scope of powers of the Industrial Tribunal, jurisdiction of the Industrial Tribunal vis-a-vis the power of the Government to make a reference. The Court held as under:

' The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference. The question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the Management, the Labour Union and the Staff Union. When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of the Workers' Union that the tripartite settlement is in any way mala fide. It has been contended by the Workers' Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such was not binding on the members of the Workers' Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings.'

23. Despite the fact that the provisions of Industrial Act do not provide any limitation, it will always be appropriate for a workman to approach the concerned authorities for making a reference at the earliest opportunity. This would serve the dual purpose. Firstly, expeditious determination of a reference/case by the Competent Forum which is the object of the Act and, secondly, the employer or the concerned authority would not be able to take the plea of destruction/non-availability of record. Unexplained long delays as already noticed can be of some consequence particularly when the workman had taken no steps whatsoever to seek redress from the concerned authorities. Another Full Bench judgment of the Punjab & Haryana High Court in the case of Ram Chander Morya v. The State of Haryana and Ors., 1999 CriLJ 133 had also dealt with this concept at greater detail and held as under:

' 42. After taking into consideration the various provisions of law, stated above, and after taking into consideration the words 'clearly belated' mentioned by the Supreme Court in Bombay Union of Journalists' case (supra), we would merely indicate that reasonable time in case of reference of an industrial dispute by an appropriate Government to the Labour Court or the Tribunal will be five yeas. In other words, if any industrial worker or union or any other person on behalf of the worker does not apply to the appropriate Government for reference of an industrial dispute under Section 10(1) of the Act to the Labour Court or the Tribunal for a period of five years and tenders no Explanationn for the delay beyond five years, this delay beyond the period of five years shall be taken as clearly belated.

43. We leave a note of caution here that if a worker or the union pleads / furnishes even a slightest Explanationn for delay in submitting his / its request to the appropriate Government for reference of his/its dispute to a Labour Court or the Industrial Tribunal then the appropriate Government shall leave the determination of the question o belatedness to the labour Court or the Industrial Tribunal. It will then be the province of the Labour Court or the Industrial Tribunal to decide the question of reasonable delay in filing the application after taking into consideration the relevant material placed before it. Now we come to the individual cases.'

24. It is a social welfare legislation and in view of the above enunciated principle of law essentially should receive an interpretation which would help achieving of the object of the statute that is protecting the workman against exploitation and prolonged litigation.

25. It will be appropriate to conclude that the dimensions of the powers vested in the appropriate Government under Section 10(1)(c) of the Act are wide which require proper application of mind in consonance with the above enunciated principles but in no way the appropriate Government could usurp or abdicate to itself the powers of determination which are exclusively vested in the Labour Court/Tribunal. Long delays by itself may not be sufficient to deny the reference requested for by the workman unless it is so seriously prejudicial to the other party to result in unfair unjust advantage to the workman and would permit the workman to take undue advantage of his own conduct or the dispute is so belated and stale that in the eyes of law it has extinguished or lost its substance.

26. In the case of Subhash Chander (supra) we are not really concerned with the merit or otherwise of the misconduct of the workman. The facts afore narrated would show that the services of the workman were terminated for misconduct of unauthorised absence as well as keeping in view his previous service conduct. Some justification was sought to be given by the workman for his absence that is on account of his illness and domestic problems. Admittedly, his services were terminated on 30.11.1990 and the statement of claim was filed before the Conciliation Officer on 15.12.97. There is delay on the part of the workman in approaching the concerned authorities and vide order dated 13.10.1998 the reference was declined as of highly belated. According to the workman he was approaching the management for all this period in the hope of reinstatement. Thereafter as his efforts in this regard failed he had even filed a review application in the year 2000 which was rejected vide order dated 14.9.2000. Relying upon the case of K.P. Kutti (supra) the appropriate Government had rejected the request of the workman for a reference. The delay of 7 years is a matter to be considered but whether it is fatal or not to the case of the workman or had become so stale as to extinguish the industrial dispute would depend on the facts of the case. The judgment of the Supreme Court in the case of (1) State of Bombay (now Maharashtra) (in C.A. No. 37 of 1957); (2) Firestone Tyre and Rubber Co., (in C.A. No.38 of 1957) v. K.P. Krishnan and Ors. (in both the appeals), : (1960)IILLJ592SC had held as under:

' This section confers wide and even absolute discretion on the Government either to refer or to refuse to refer an industrial dispute as therein provided. Naturally this wide discretion has to be exercised by the Government bona fide and on a consideration of relevant and material facts. The second proviso to S. 10(1) deals with disputes relating to a public utility service, and it provides that where a notice under S. 22 has been given in respect of such a dispute the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced. It is thus clear that in regard to cases falling under this proviso an obligation is, imposed on the Government to refer the dispute unless of course it is satisfied that the notice is frivolous or vexatious or that considerations of expediency required that a reference should not be made. This proviso also makes it clear that reference can be made even if other proceedings under the Act have already commenced in respect of the same dispute. Thus, so far as discretion of the Government to exercise its power of referring an industrial dispute is concerned it is very wide under S. 10(1) but is limited under the second proviso to S. 10(1). Section 10(2) deals with a case where the Government has to refer an industrial dispute and has no discretionin the matter. Where the parties to an industrial dispute apply in the prescribedmanner either jointly or separately for a reference of the dispute between them the Government has to refer the said dispute if it is satisfied that the persons applying represent the majority of each party. Thus, in dealing with this class of cases the only point on which the Government has to be satisfied is that the persons applying represent the majority of each party; once that test is satisfied. The Government has no option but to make a reference as required by the parties. Similarly S. 10A deals with cases where the employer and his workmen agree to refer the dispute to arbitration'

27. Applying the above principle to the facts of the present case it is clear that the dispute cannot be termed as perverse or frivolous. The workman was admittedly employed by the respondent management on 20.9.1987 while his services were dispensed with in October 1990. The workman because of his domestic problems, poverty and illness was not able to pursue his remedy expeditiously and issued the demand notice on 26.10.1997 to his employer. Having failed to get reinstatement from his employer the workman had filed the statement of claim somewhere in December 1997 except before the conciliation officer. It was a detailed statement of claim which had referred to various grievances of the workman resulting in his termination as on 1st of December 1990. He had specifically stated therein that he remained unemployed since the date of his termination despite his best efforts. Report of the conciliation officer reporting failure of conciliation proceedings as no settlement could be arrived at was also submitted to the authorities. In other words the dispute at the relevant time i.e. in the year 1998 was subsisting. It would appear that the workman, of course, with certain delay pursued his remedy and had made attempts to raise specific grievances about unlawful termination of his services. In these circumstances, it cannot be said that it would be just and fair to non-suit the petitioner on the ground of mere delay. The delay essentially must be coupled with the element of serious prejudice to the either side and seen in light of facts of that case the dispute should had become so stale that dispute itself does not exist on the relevant date. The principles laid down in the above judgments would have to be applied to the facts of each case and does not state as an absolute law, the principle that in every case where there is delay the workman should be non-suited at the very threshold and the Government would be competent to deny reference of the industrial dispute to the labour court for its adjudication in accordance with law. Not only this after passing of the order dated 13.10.1998 by a detailed representation and citing various other judgments of the Supreme Court the workman had attempted to compel the appropriate Government to review its order and make a reference. This request was also as already noticed was rejected by the appropriate Government in view of the judgment of the Supreme Court in Kutti's case (supra). Having considered the various facts and circumstances of the case and in light of the enunciated guidelines I am of the considered view that the case would squarely fall within the category where the reference can be made by the appropriate Government and the labour court or industrial tribunal, could mould the relief by denying back wages to the workman if it came to the conclusion on the merits of the case and after permitting the parties to lead evidence.

28. While recording the reasons for declining the reference in furtherance to the application for review by the workman of the order of the appropriate Government dated 13.10.1998 it was accepted that the Government would apply its mind to other cases of the Supreme Court which had been cited in the review application and why the case would not be covered by such judgments. It is true that appropriate Government is not expected to write detailed judgment but certainly it must think equitably, fairly and apply its mind at least to the judgment which was brought to the notice of the authority. In the impugned order there is no reference at all to the averments made by the workman in his application for recalling the administrative order dated 13.10.1998.

29. Argo and for the reasons afore stated I would quash the order dated 13.10.1998 as well as 14.9.2000 and direct the appropriate Government to consider the case of the workman in accordance with law and refer the matter to the labour court/ tribunal in accordance with the provisions of Section 10 of the Act.

30. Coming to Lalji's case (supra), in WP(C) No. 14703/2004, the order rejecting the reference reads as under:

'Subject : I.D. between the management of M/s New India Assurance Co. Ltd. and Shri Lalji over alleged illegal termination of his services.

Sir,

I am directed to refer to the Failure of Conciliation Report No. ALC-HQG/7(2)/02 dated 29.01.2003 from the ALC (Delhi) received in tis Ministry on 10.2.2003 on the above mentioned subject and to say that, prima facts, this Ministry does not consider this dispute fit for adjudication for the following reasons :-

'The applicant has not produced any documentary evidence in support of his claim, hence, no dispute subsists.'

Yours faithfully,

Sd/-

(Ajay Kumar)

DESK OFFICER

T.No. 23001150

E Mail-irbl@lisd.delhi.nic.in

Copy to :-

1. Regional Labour Commissioner (Central) New Delhi

2. Assistant Labour Commissioner (Central) New Delhi

3. Guard File

4. C.R. Section

31. The above order of the appropriate Government is contrary to the record itself. It is not for the appropriate Government to require the parties to produce documentary and oral evidence to show whether an industrial dispute exists or not and whether it should exercise its power under Section 10 of the Act. The appropriate Government is expected to form an opinion prima facie in regard to the contents and essentials indicated in this judgment above and not to determine any controversy in that behalf. In this case the Assistant Labour Commissioner Delhi had submitted a report where he had made a reference to the representation of the workman which was annexed to the report as Annexure I and the reply filed by the management before the said officer which was annexed as Annexure II. The management has taken up the plea that the workman was not their employee and was supplying tea to the branch office at Kirti Nagar. It was noticed in the report as under:

'The matter was discussed in detail with both the parties and after protracted discussions, it was seized in conciliation. During the course of conciliation, both the parties reiterated their stand as taken by them in the documents filed/written statement. Various suggestions were given to both the parties to resolve the dispute amiably but due to their divergent views the matter could not resolved. Hence, the matter ended in failure. The proposal for voluntary arbitration and joint reference as per section 10(A) & 10(2) of the I.D. Act, 1947 is acceptable to the workman, whereas the management is not ready for the same.

32. The parties from the record before the authorities had clearly shown that there was apparently some relationship between the management and the workman. The workman had even made a specific pleadings that he was paid wages by signing of vouchers which were in possession of the management. According to him he was not being paid even the minimum wages and has refused under the Minimum Wages Act. In the reply to this the management had stated ' the true facts are that he used to supply tea to the employees of the branch office of the Kirti Nagar and during this period he may have asked for money in case of dire necessity and might have been paid expenses which he might have incurred. He had been paid wages till today nor is entitled to the same.' Other allegations were denied. From the bare reading of the above pleadings of the parties even pleadings in the writ petition before this Court it appears that a serious controversy had arisen with regard to relationship of master and servant between the parties and also with regard to the entitlement of the wages.

33. From the above narrated facts it is difficult for this Court to come to the conclusion that there was no material before the appropriate Government to consider the case of the workman prima facie for the purposes of making a reference under Section 10 of the Act. In fact the workman had also placed some other documents in the shape of the company's forms, in relation to payment of premium etc. I am of the considered view that it was not a case where the appropriate Government could reject the demand of the workman as being not supported by any documentary evidence. This would certainly amount to determination of the dispute on merits including the fact whether the petitioner was a workman under the management or not. This approach of the appropriate authority certainly is transgression of its limited power vested in it under the provisions of Section 10 and it has travelled into the domain of final determination which has to be adjudicated upon by the labour court or the industrial tribunal as the case may be. The settled can noneof the industrial jurisdiction would not permit such unfair exercise of administrative power by the appropriate Government. According to the workman he was working with the company since 17.11.1997 at a wages of Rs.1750/- per month as a peon. His services were terminated in 2001 and immediately thereafter he had approached the authorities under the Act. These facts do not indicate that the workman has raised a controversy or a baseless dispute. He had been pursuing his case before the concerned authorities at all relevant times. On 27.7.2001 he had filed a complaint before the Delhi labour union that he was not being paid the minimum wages as per law. Thereafter the workman was not permitted to continue in his employment and as an act of victimisation his services were dispensed with. The cumulative effect of the facts afore narrated clearly show that the appropriate Government has stepped out its jurisdiction as indicated in the above enunciated principles of law. The conclusion of the authorities that no dispute exists is not supported by the record produced before me. In fact, the order patently suffers from the voice of non application of mind that is why no reasons have been stated in the order as to how the said conclusion is arrived by the authorities, despite the specific pleadings and the conciliation report submitted by the authorities concerned.

34. An order which is non-speaking, suffers from the voice of non-application of mind and in fact is contrary to the record which was admittedly before the authorities, by any stretch, cannot withstand judicial scrutiny irrespective of the fact that it may be an administrative order. The present case is certainly not one of no material or no evidence in support of the case of the workman. Consequently, this writ petition is allowed. The order dated 20th October, 2003 is hereby set aside. The appropriate Government is directed to consider the case of the workman and refer the dispute to the Labour Court/Tribunal in accordance with law.

35. Both the above writ petitions are allowed in terms of the directions as aforenoticed in this judgment while leaving the parties to bear their own costs, in both the writ petitions.