JUDGMENT Anjani Kumar, J.
1. Petitioner by means of the present writ petition has challenged the reference order dated 16.7.1996 passed by the State Government by which the State Government referred the following dispute to be adjudicated upon by the labour court pending decision :
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2. On the aforesaid reference, the petitioner filed this writ petition and this Court has been pleased to pass the following interim order dated 22.4.1997 :
"Pending motion hearing, let notice be issued to 3rd respondent who may file counter-affidavit by the date fixed.
In the meanwhile, further proceeding in Adjudication Case No. 253 of 1996 pursuant to impugned reference dated 16.7.1996 shall remain stayed."
3. As a consequence of passing of the interim order, the proceedings before the labour court are pending. The petitioner-employer has raised the objection that since the order of reference itself refers the dispute with regard to 112 employees, the matter could not and should not have been referred to the labour court as the number of employees is more than 100. The petitioner raised this objection also before the labour court but instead of waiting the decision of the labour court, petitioner- employer rushed up to this Court and obtained the interim order, as a result of which the proceedings are pending.
4. Learned counsel for the petitioner has relied upon a decision in Jaslok Hospital and Research Centre, Bombay v. B. V. Cnavan and Ors., 1987 (1) LLN, wherein Division Bench of Bombay High Court while dealing with the validity of the reference has held that it would seem desirable that an employer ought not to be permitted to question the validity of a reference after the award is given in such reference. It would be most unfair to go into the pleas of technical invalidity of a reference after contesting the claim on merits. Unless the employer forthwith challenges the reference and moves the High Court under Article 226 of the Constitution, he should not ordinarily be heard thereafter to complain of the same.
5. The facts of the case dealt with by Division Bench of Bombay High Court are different with the present case. Here in the present case, the petitioners have raised a preliminary objection and the objection pending decision before the labour court and without waiting for the decision of labour court, employer-petitioner rushed up to this Court.
6. In this view of the matter, the law laid down by the Bombay High Court does not apply to the present case. Learned counsel for the petitioner has further relied upon another decision in AIR 2000 SC 839, where the reference was made with regard to dismissal of the bank employee after enquiry and the employee had already availed the remedy of appeal unsuccessfully. The Supreme Court has held that (t is incorrect to say that once a reference has been made under Section 10 of the Act a labour court has to decide the same and High Court in writ Jurisdiction cannot interfere in the proceedings of the labour court. An administrate order which does not take into consideration statutory requirements or travels outside that Is certainly subject to Judicial review limited though it might be. High Court can exercise its powers under Article 226 of the Constitution to consider the question of very jurisdiction of the labour court. In the same judgment, Supreme Court has held that there cannot be time limit for the State Government to make a reference but it does not mean that the power can be exercised at any point of time. However, it is made clear that the stale dispute cannot be referred.
7. Therefore, in view of the provisions of law laid down In the aforesaid case, petitioners have failed to demonstrate that the dispute referred to is stale or the same has been made without the authority of law.
8. Learned counsel for the contesting respondent relied upon a decision in Sapan Kumar Pandit v. U. P. State Electricity Board and Ors., 2001 (3) AWC 2342 (SC) : 2001 (90) FLR 754 (SC), wherein Hon'ble Supreme Court has held after referring the Judgments already cited above, that once the dispute is referred by the State Government, it means that the dispute is still subsisting between the employer and the workman. Therefore, the time lag in reference will not come in the way of the labour court to adjudicate upon the issue.
9. In this view of the matter, to me it appears that the petitioner-employers have rushed up to this Court at a premature stage particularly when they have already taken the objection, which they are now raising before this Court by means of the present writ petition. They should have awaited for the fate of their objection raised before the labour court and thereafter should have rushed up to this Court. Learned counsel for the petitioner further relied upon a decision in C.M.W.P. No. 13936 of 1995, H.A.L. v. Presiding Officer, Kanpur, wherein this Court has decided and found that the reference made by the State Government is liable to be quashed.
10. The decision referred to above, relied upon by learned counsel for the petitioner passed in Writ Petition No. 13936 of 1995 was earlier than the case of Sapan Kumar Pandit referred to above and Sapan Kumar Pandit's case decided by the Apex Court, being later law, will prevail over the decision of this Court in Writ Petition No. 13936 of 1995.
11. In this view of the matter, and particularly when the petitioner-employers have already raised the objections, this writ petition is liable to be dismissed as premature and is hereby dismissed. Interim order, if any, stands vacated. However, labour court is directed to decide the reference expeditiously.