JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioner has prayed for issuance or a writ in the nature of certiorari quashing the orders dated 31.10.1996 (Annexure-1) and 22.8.1997 (Annexure-2 to the writ petition) passed by respondent Nos. 2 and 4 respectively.
2. The petitioner claims to have been appointed as Class IV employee in the Allahabad Bank in the district Bulandshahr on 11.2.1981 on the death of his father Jagannath Prasad who was a confirmed Class IV employee in the said Bank. It has been stated that having worked for 89 days, without any rhyme or reason petitioner was asked not to work. In view of the aforesaid fact, petitioner states that he approached the concerned authorities from time to time but his claim for continuance was not considered on account of which he had to make a detailed representation on 8.5.1995 raising industrial dispute against the illegal and arbitrary order of termination of his service. As the petitioner happened to be a poor person and not being in a position to contest his case before the respondent No. 2 he gave authority letter dated 8.5.1995 authorising the General Secretary of the U. P. Bank Employees Union to represent his case and to sign documents/papers, etc. on his behalf. It is said that notice was issued in respect to the petitioner's claim upon which a counter-affidavit was filed by the respondent No. 3 to which petitioner also filed rejoinder affidavit on 31.8.1996. Respondent No. 2 after considering the facts vide its order dated 31.10.1996 (Annexure-1 to the writ petition) rejected the conciliation proceedings and an information was sent in this respect to the appropriate Government who by its order dated 22.8.1997 (Annexure-2 to the writ petition) refused to make reference to the Industrial Tribunal for adjudication of the petitioner's claim on the ground that no Industrial dispute exists and the claim has been laid by the petitioner after lapse of 13 years. It is these two orders dated 31.10.1996 and 22.8.1997 (Annexures-1 and 2 to the writ petition respectively) which has made the petitioner aggrieved to come up before the Court.
3. Heard learned counsel for the parties and perused the pleadings as has been set forth in this petition and the material as has been placed on the record.
4. During the course of arguments both learned counsel joined the issue only on one ground i.e., the rejection of the petitioner's claim for reference on the ground of delay.
5. Learned counsel for the petitioner has vehemently argued that under the Act, no period has been prescribed for referring the dispute to the Labour Court and therefore, the rejection of the petitioner's claim for making reference on the ground of delay is quite uncalled for. In the alternative, it has been argued that plausible explanation has been offered on behalf of the petitioner, explaining the delay in approaching the respondent No. 2 but the same has not been noticed by the respondent No. 4 and in a most arbitrary and cryptic manner, the order has been passed. Learned counsel for the petitioner submits that on the facts of the present case as the petitioner was engaged to meet the hardship of family who was starving on the death of the petitioner's father who was Class IV employee in the Allahabad Bank and, therefore, petitioner's case was liable to be considered in sympathetic manner, on the merits but its rejection on the technical ground of delay is not at all justified. Learned counsel for the petitioner in support of his contention has placed reliance on the decision in Sapan Kumar Pandit v. U. P. State Electricity Board and others, 2001 f3) AWC 2342 (SC) ; Shalimar Works Ltd. v. Their Workmen, AIR 1959 SC 1217 and M/s. Western India Watch Co. Ltd. v. Western India Watch Co. Workers Union, AIR 1970 SC 1205.
6. Learned counsel who appeared for the Bank in response to the aforesaid submissions, argued that on the facts of the present case it is fully clear that petitioner has presented his claim after about 13 years and therefore, the respondents have rightly refused to make reference as acceptance of the petitioner's contention will amount to revive the matter which has already become stale. Learned counsel for the respondents in support of his contention places reliance on the decision in 2000 (2) AWC 923.
7. The question which requires attention of this Court is that :
(i) Whether any time (limitation) has been prescribed for the appropriate Government for referring the dispute or any matter appearing to be connected with or relevant to the dispute to a labour court.
(ii) If time (limitation) is provided, then whether it can be stretched for any uncounted number of years, having no boundary.
8. The question as arises for consideration, has already been considered and settled by the decision of the Apex Court. The survey of cases as has been relied from both sides, makes the position clear that although no time-limit has been prescribed for the Government to make reference but the use of the words 'at any time' has a significance and that gives a handle to the Government to make reference at any time, if it feels that the dispute exists. This exercise makes obligatory for the Government to apply its mind to explanation given by the employee, for coming late with the prayer for reference.
9. After referring to large number of earlier decisions, the Apex Court in case of Sapan Kumar Pandit, (supra) in paragraph 15 has observed thus :
"There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section 4K of the U. P. Act. the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."
10. The aforesaid observation of the Supreme Court clearly casts the duty on the Government to apply its mind and to consider that whether the dispute ceased to exist or it may stilt be alive though not galvanised by the workmen or union on account of other justifiable reason. It is in the backdrop of this principle that there is no limitation prescribed for making reference but on the facts of each case that whether workmen has made the dispute alive or it has become stale, the cases are to be scrutinised. Now let us examine and test the decision of respondent on the aforesaid principle.
11. The petitioner has stated in para 16 of the writ petition that he has given full justification for the delay. In this connection a further reference can be made to the pleadings as had come before the respondent No. 2 vide affidavit tiled by the petitioner dated 31.8.1996 (Annexure-8 to the writ petition). Para 8 of the said affidavit reads like this :
"The contents of para 8 are not admitted and we reiterate that the petition/claim is very much tenable and the same cannot be termed as stale claim. The dispute could be raised at this late stage on 8.5.1995 because till that the applicant was making representations to the bank's management from time to time and in absence of their reply of the correspondence of the bank, I could not decide the time of action to get the justice done till the date of raising dispute. Now having no alternative, preferred to raise the dispute before your honour to ensure justice in the case through your kind intervention. In support of the above contention, photostat copies oj the representations are annexed as Annexure-'A' to Annexure- 'F'."
12. The aforesaid pleadings of the petitioner makes It clear that he has taken a definite stand that he has been making representation after representation to the Bank management from time to time and was waiting for its disposal and in the absence of the reply of the correspondences, he was not in a position to decide the time of action and as large number of similarly situated employees, were absorbed and continued he was also hopeful but as long delay had taken place, he having no alternative preferred to raise the dispute. In this connect on petitioner had also annexed copies of the representations as Annexures-A to F along with his rejoinder-affidavit filed before respondent No. 2. There appears to be no denial in respect to the fact and detail as mentioned in para 8 of the affidavit (which is annexed as Annexure-8 to the writ petition), on behalf of the respondents either before the respondent No. 2 or even before this Court. Thus, the matter will have to be judged taking the facts into consideration that the petitioner has been making representation and has been approaching the bank management from time to time. To substantiate this version he had also appended copy of correspondences as Annexures-A to F with the said affidavit. The order of the respondent No. 4 dated 22.8.1997 by which reference has been refused merely states that petitioner has raised the issue after a lapse of nearly 13 years without furnishing any justifiable reason for the delay. On a reading of this reason as has been given by respondent No. 4 in his order. It appears that the explanation as was given by the petitioner, supported with the documents have not been analysed and no reason has been assigned for rejecting that explanation and the stand of the petitioner about continuous approaches to the bank management by moving representation. There is nothing on record to show that Bank has denied the factum of filing of representation as there appears to be no supplementary counter-affidavit before respondent No. 2. In view of this, it appears that respondent No. 4 has not properly attended the issue by making the required consideration which was crucial for forming an opinion for making reference. The facts as have come on the record vide para 3 of the writ petition that petitioner was given appointment on the death of his father who was a Class IV employee in the Bank has also not been denied by the respondents which is clear from the reply as is contained in para 5 of the counter-affidavit. Petitioner has also stated in para 10 and 15 of the writ petition that number of candidates, similarly situated to the petitioner and appointed even much after him, have been absorbed which shows the pick and choose on the part of the respondents. The petitioner has challenged the action of the Bank of not continuing him, on various grounds as has been taken before the authorities and also before this Court but as the dispute has not been referred by the Government solely on the ground of delay, this Court need not go to into the merits of the petitioner's claim and his entitlements as it will be premature. In the light of aforesaid discussions the order of the respondent No. 4 gives a firm impression to the Court that the explanation as has been given by the petitioner vide para 8 of the affidavit (Annexure-8 to the writ petition supported by documents Annexure-A to F) have not been taken into consideration and it appears that in ignorance thereof just by a casual observation "that he has raised the issue after a lapse of nearly 13 years without furnishing any justifiable reason for the delay" the reference has been refused. On the facts and circumstances and in view of aforesaid. I am of the view that the matter requires fresh consideration by the respondent No. 4 in respect to the claim of the petitioner without being influenced by the observations as made in this judgment.
13. For the reasons stated above, this writ petition succeeds and is allowed. Impugned order of the respondent No. 4 dated 22.8.1997 (Annexure-2 to the writ petition) is hereby quashed. The matter is remanded for a fresh consideration, in accordance with law.
14. Parties will bear their own costs.