JUDGMENT Rakesh Tiwari, J.
1. Heard the counsel for the parties and perused the record.
2. This writ petition has been filed on account of refusal by the respondents to refer the dispute for adjudication in exercise of is powers under Section 10 of the Industrial Disputes Act. 1947. The petitioner has challenged the validity and correctness of the order dated 17.1.2001 by which the reference to industrial dispute has been refused by respondent No. 2.
3. The case of the petitioner, in brief, is that Kunji Lal, Dev Raj, Kishori Lal, Raj Kumar, Gopi and Mickel were working as Monthly Rated Casual Labour (M.R.C.L)/Substitute under the Carriage and Wagon Department of respondent No. 3 at Jhansi. They are said to be the members of the petitioner-Union. The Union claims that the aforesaid persons had worked 120 days and have acquired temporary status as M.R.C.L. They were paid as regular wagers and facilities of pass and P.T.Os. were also granted to them. They were sent from one place to another on temporary duty by way of movement order and all the aforesaid persons have got a right to continue in the employment of respondent No. 3. However, the aforesaid persons were retrenched w.e.f. 31.3.1992 while they were entitled to be regularised after screening on 28.2.1992 and 30.3.1992. The names of these five persons were maintained in the Live Register with respondent No. 3.
4. At the instance of the petitioner conciliation proceedings started. The Assistant Labour Commissioner (Central) Kanpur, submitted failure report on 26th September, 2000 to respondent No. 1. He refused to refer the alleged dispute to the Industrial Tribunal-cum-labour court vide letter dated 17.1.2001 (Annexure-6 to the writ petition) on the ground that the workmen were terminated from service in 1992 and the dispute has been raised in 2000 after a lapse of 8 years without any reason for the delay. In reply the petitioner states that after termination of the services of the workmen they had approached the Central Administrative Tribunal by filing Case No. 925 of 1989 which could be disposed of on 10.10.1990 by the Tribunal with a direction to respondent No. 3 to decide their representation dated 20.3.1989 within three months. The workmen accordingly submitted the order of the Tribunal dated 10.10.1990 to respondent No. 3. Respondent No. 3 having not decided their representation the workmen raised the dispute before the Conciliation Officer through the petitioner-union but the Conciliation Officer also refused to make the reference, hence this writ petition.
5. The petitioner contends that refusal to make reference is wholly illegal, arbitrary and perverse and in any view of the matter no limitation having been provided under the Act to raise an industrial dispute, the reference cannot be refused on the ground of delay. It is further contended by the petitioner that the Government is under obligation to refer the existing or apprehended industrial dispute and even after delay the void order of retrenchment cannot be made a valid retrenchment as the law is well-settled on the point that if there is any dispute or apprehension of dispute, the appropriate Government should refer the dispute for adjudication to the labour court or Industrial Tribunal as the case may be to consider the question of delay while granting the relief.
6. In their written statement/objection filed before the Conciliation Officer the respondents have stated that each of the workmen was casual labourer. The relevant part of the written statement/objection was to the following effect :
"(5) That S/Shri Kunji Lal S/o Shri Harcharan, Devraj S/o Shri Tula Ram, Kishori Lal S/o Shri Har Prasad, Raj Kumar S/o Shri Raghubir, Gopi S/o Shri Heera Lal and Michal S/o Shri Anthoney, have been temporarily put to work as casual labour during mansoon season vide letter No. E/HC/ Water tight, dated 20.6.1990, for certain period and specified work as mentioned in notification No. P/123/CL/1/Cadre-3, dated 19.6.1990 consequently they have no right to claim regular appointments as they demanded in their notice dated 23.2.2000 and 28.2.2000 through President R.C.S.R.M. Congress, Agra, because services came to an end by the end of the mansoon season automatically."
7. In Himanshu Kumar Vidyarthi v. State of Bihar, (1997) 4 SCC 391, the Apex Court has held that:
"Every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on dally wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily wage employees and have no right to the posts, their disengagement is not arbitrary."
8. The dispute is stale as it was raised after more than 10 years. These persons were casual labourers on daily wages and were not found fit also by the screening committee held on 20.2.1992/11.3.1992.
9. The question of delay of reference has been considered in a catena of decisions by the Apex Court starting from Shalimar Works Ltd. v. Their Workmen, AIR 1959 SC 1217. The three-Judge Bench of the Supreme Court held that "it is true that there is no limitation prescribed for reference of a dispute to a Tribunal, even so it is only reasonable that dispute should be referred as soon as possible after they have arisen and when dispute relates to discharge of workmen, 3 years would be justified in refusing the relief of reinstatement to avoid dislocation of industry.
10. In the later decision in Nedungadi Bank Ltd. v. K.P. Madhav Kutti, 2000 (2) AWC 923 (SC) : AIR 2000 SC 839, the Apex Court held that though no time limit is prescribed, it does not mean that power to refer can be exercised at any point of time. The Court also held that though the order of reference is an administrative order, it is subject to judicial review and stale disputes cannot be referred. In this case, the reference was made after seven years of cause of action. The Court in paragraph 6 of its decision further held that it cannot be said that a complaint made after a lapse of seven years can give rise to an industrial dispute or that industrial dispute could be apprehended and reference of such a dispute was bad both on ground of delay and lack of industrial dispute existing or apprehended.
11. In one of the recent judgments on the point of delay in making reference was considered in Assistant Executive Engineer v. Shivalinga, 2002 (1) AWC 394 (SC) : (2002) 1 LLJ 457. Reference of dispute was made after more than nine years. There arose a serious dispute or doubt about the relationship of employer and employee between the parties. The Hon'ble Supreme Court held that the long delay (9 years) would impede the maintenance of records and the reference was bad in these circumstances. The labour court had rejected the reference, but the High Court allowed the writ petition. The Apex Court set aside the order of the High Court holding that a situation of that nature would render the claim to have become stale and maintained the order of the labour court rejecting the belated reference on ground of delay.
12. The labour court did not apply its mind to this glaring and undisputed fact of belated and stale reference in the present case.
13. For the reasons stated above, there is no illegality or infirmity in the impugned letter/order dated 17.1.2001 (Annexure-6 to the writ petition) requiring interference by this Court under Article 226 of the Constitution and the writ petition deserves to be dismissed.
14. The writ petition is accordingly dismissed. No order as to costs.