[2025:RJ-JP:37345] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 21025/2012 Sanjay Sharma Son of Shri Rajendra Sharma G-107, Ganesh Khavdi Panchsheel Nagar Yojna, Sector-A, Ajmer ----Petitioner Versus 1. Union of India, through Zariye Secretary, Ministry of Labour, Government of India, Shram Shakti Bhawan, Rafi Marg, New Delhi. 2. Desk Officer, Ministry of Labour, Government of India, Shram Shakti Bhawan, Rafi Marg, New Delhi. 3. Chairman, Marwar Gramin Bank Madiya Road, Pali Marwar, Rajasthan. ----Respondents For Petitioner(s) : Mr. Dharmendra Jain with Mr. Arvind Kumar Arora For Respondent(s) : Mr. Pawan Pareek for UOI Mr. Virendra Lodha, Sr. Adv. with Mr. Ankit Rathore HON'BLE MR. JUSTICE ANAND SHARMA Judgment Date of Reserve : 15.09.2025 Date of Pronouncement : 20.09.2025 1. Petitioner has challenged the order dated 04.07.2011 (annex.-3) issued by the Desk Officer, Ministry of Labour, Government of India, whereby the industrial dispute raised by the petitioner has not been referred for adjudication on the ground of delay in raising the dispute. 2. Learned counsel for the petitioner submits that the services of the petitioner were illegally terminated vide order dated 31.01.1994. Feeling aggrieved, he raised an industrial [2025:RJ-JP:37345] (2 of 9) [CW-21025/2012] dispute before the Conciliation Officer. However, on account of there being no possibility of compromise failure report was submitted by the Conciliation Officer to the appropriate Government. Although, the appropriate Government was required to examine whether a bona fide dispute existed or not, yet it transgressed its jurisdiction by rejecting the prayer to refer the dispute to the adjudicating Court only on the ground that the dispute had been raised belatedly. 3. Learned counsel for the petitioner has relied upon the judgment passed by the Co-ordinate Bench of this Court in the case of Gopiram Yadav Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.11575/2019) decided on 17.08.2023. 4. Per contra, learned counsel for the respondents vehemently opposed the writ petition and submitted that although there was no statutory limitation at the relevant time for raising an industrial dispute, the appropriate Government was nevertheless entitled to examine the reasonableness of the delay; and in the present case, given the long and unexplainable delay, the appropriate Government has rightly rejected the prayer to refer the dispute. 5. Learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court in the case of Prabhakar Vs. Joint Director Sericulture Department & Ors.: (2015) 15 SCC 1 and submitted that the Hon'ble Supreme Court has observed that disputes are not required to be referred in every case and despite there being no limitation, the appropriate Government can still refuse to refer the matter on the ground of delay. [2025:RJ-JP:37345] (3 of 9) [CW-21025/2012] 6. Heard and considered. 7. The issue, as to whether, the appropriate Government can refuse to make a reference under Section 10 of the Industrial Disputes Act, 1947 on the ground of delay and latches has already been examined by the Co-ordinate Bench of this Court in the case of Gopiram Yadav (supra). In the aforesaid judgment, the question has been answered in favour of the workman by holding that the appropriate Government cannot refuse to refer the dispute only on the ground of delay. Following part of the above judgment is relevant:- "1. The legal issues involved in this petition is "Whether appropriate Government can refuse to make a Reference under Section 10 of the Industrial Disputes Act, 1947 on the ground of delay and latches? Whether the Government can take up the role of Adjudicating Authority while deciding the question as to whether a Reference be made or not? 28. The intention of the legislature is to be gathered from the words used under Section 10 (1) of the Act of 1947, therefore, it is not open for the appropriate Government to travel beyond the intention of the legislature and it could not be presumed that the legislature has committed mistake in not providing limitation period while interpreting the statutory provision. Thus, it can safely be held that it would not be open for the appropriate Government, while exercising the powers under Section 10 (1) of the Act to decide the question whether the claim of the workman is stale or not. 29. Hence, it is clear that the delay and latches itself cannot be a ground for refusing to make a Reference. If a person is guilty of delay and latches, it may be a ground for the Labour Court, either to refuse to grant any relief or refuse to grant relief of back wages. The Government cannot take up the role of an Adjudicating Authority while deciding the question as to whether a Reference should be made or not. 30. While referring the dispute, the appropriate Government can formulate the question of [2025:RJ-JP:37345] (4 of 9) [CW-21025/2012] 'Delay & Latches' to be decided by the Labour Court as a preliminary issue while simultaneously also making a reference on the industrial dispute to be decided on secondary issue." 8. In the case of Prabhakar (supra), the Hon'ble Supreme Court in Paras-41 to 44 has observed as under:- "41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent. 42. On the basis of the aforesaid discussion, we summarise the legal position as under: 42.1 An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that “any industrial dispute exists or is apprehended”. The words “industrial dispute exists” are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an [2025:RJ-JP:37345] (5 of 9) [CW-21025/2012] industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. 42.2 Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists. 42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred. 42.4 Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there [2025:RJ-JP:37345] (6 of 9) [CW-21025/2012] were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. 42.5 Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. 42.6 In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an “existing dispute”. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no “industrial dispute” within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted. 43. We may hasten to clarify that in those cases where the court finds that dispute still existed, though raised belatedly, it is always permissible for the court to take the aspect of [2025:RJ-JP:37345] (7 of 9) [CW-21025/2012] delay into consideration and mould the relief. In such cases, it is still open for the court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the “appropriate Government” to consider whether it is expedient or not to make the reference. The words “at any time” used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry." 9. The aforesaid judgment in the case of Prabhakar (supra) would make it clear that the appropriate Government, only on the basis of the fact that the dispute was raised at a belated stage, cannot refuse to refer the matter. However, only in the cases, where there is no explanation in respect of delay, the appropriate Government can refuse to refer the dispute. While considering such a reference, where the Labour Court or Industrial Tribunal finds the dispute still existed, though raised belatedly, it is always permissible for the Court Tribunal to take the aspect of delay into consideration, while considering the question of relief. 10. The aforesaid judgment in the case of Prabhakar (supra), has also been considered by the Division Bench of the High Court of Himachal Pradesh at Shimla in the case of Shri Jai Singh Vs. State of Himachal Pradesh & Ors., (Civil Writ Petition No.2190/2020 & other connected matters decided on 30.03.2022, wherein it has been held that if, there is no [2025:RJ-JP:37345] (8 of 9) [CW-21025/2012] explanation for the huge delay in raising the dispute, the appropriate Government would be justified in refusing to refer the dispute on the ground that the dispute has faded away with the efflux of time and there is no live dispute to be referred. 11. On examination of the pleadings of the instant case, it would reveal that the reasons for raising the industrial dispute with delay have been given by the petitioner in the manner that on the one hand services of the petitioner were terminated by the respondent No.3 on 31.01.1994 and on the other hand, on the basis of same facts, one criminal case was also lodged against him, therefore, the petitioner in order to pursue legal recourse in the criminal case, where his liberty was at stake, devoted his time in contesting the criminal case and therefore, delay has occurred in raising the industrial dispute. The aforesaid reasons have not been examined by the respondent-Government while refusing the dispute to refer. Thus, it is not a case, where the delay in raising the dispute was not explained by the petitioner and he has not assigned any reasons in raising the dispute with delay. 12. In view of above foregoing discussion, the writ petition is allowed. Order dated 04.07.2011 (Annex.-3) is hereby quashed and set aside. The respondent-Government is directed to refer the industrial dispute between the petitioner and the management of Marwar Gramin Bank for adjudication to the Labour Court/Industrial Tribunal, within a period of two months from the date of receipt of certified copy of this order. 13. However, it is made clear that the Labour Court/Industrial Tribunal, where the dispute would be referred for [2025:RJ-JP:37345] (9 of 9) [CW-21025/2012] adjudication, shall be at liberty to consider the point of delay while considering the question of relief. 14. Ordered accordingly. 15. Pending application(s), if any, also stands disposed of. (ANAND SHARMA),J DIVYA /47