The requirement to ascertain the existence of an industrial dispute before rejecting an application for reference, and the need to file such applications within a reasonable period of time to maintain industrial peace.

JUDGMENT :

Sunil B. Shukre, J.

Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

3. The petitioner had once knocked at the doors of this Court by filing the petition which was Writ Petition No. 6582 of 2013. In that petition, he had sought a direction to the respondents to correct his father’s name from Ram Bacchan to Bacchan and also to correct his date of birth from 28-11-1954 to 1-8-1963 in service record.

4. By the judgment passed on 18-6-2014, this Court dismissed the aforesaid petition. It was held that the reliefs sought by the petitioner could not be granted in exercise of the writ jurisdiction. It was observed that this Court was not in a position to adjudicate upon the issue regarding correct date of birth of the petitioner and correct name of his father.

5. It appears that after dismissal of the petition, the petitioner did not approach the Assistant Labour Commissioner under section 10(1) of the Industrial Disputes Act, 1947 within a reasonable period of time. On behalf of the petitioner No. 1, on 2nd July, 2018 secretary of petitioner No. 2-Union, for the first time, filed an application before the Assistant Labour Commissioner seeking reference of the industrial dispute to an Industrial Tribunal. This application, termed as representation/complaint dated 2nd July, 2018, by the impugned order passed by the Assistant Labour Commissioner, Chandrapur was rejected. Learned Assistant Labour Commissioner found that the Union was not authorized to raise the issue, with the petitioner No. 1 having retired from service on 30th November, 2014 was no more a workman and that the employer/employee relationship had ceased to exist and thus the representation/application for reference under section 10(1) of the Industrial Disputes Act, was rejected. Learned Assistant Labour Commissioner also found that there was great delay in filing the application which dissuaded him from entertaining the application.

6. Learned counsel for the petitioners submits that the reasons so stated in the impugned order are not tenable at law as there is no bar in law for raising of an industrial dispute and all that is required that industrial dispute must exist. He also submits that even after retirement, the employee/employer relationship continues to exist for limited purpose of determination of the actual date of superannuation of an employee. He also submits that there is no limitation prescribed for filing of an application under section 10(1) of the Industrial Labour Act and therefore it cannot be said that the application was moved belatedly.

7. Insofar as concerned the first two contentions of the learned counsel for the petitioners with which Shri Ghate learned counsel appearing for respondent Nos.1 and 2 as well as Shri Dhumane learned counsel for respondent No. 3 have disagreed, we are of the view that they are well answered in the case of Sharad Kumar vs. Govt. of NCT of Delhi and ors., reported in 2002 SCC (L and S) 533 and another case of Philips Employees Union, Mumbai vs. P.T. Jagtap and ors., reported in 2005 (II) CLR 182.

8. In Sharad Kumar vs. Govt. of NCT of Delhi and ors. (supra), the Hon’ble Supreme Court has held that while considering such application, the appropriate government is conferred with limited jurisdiction, and it is not the job of the appropriate government to examine the dispute on merits and all that it has to consider is as to whether or not their exists any industrial dispute and if it finds that the dispute does exist, there is no option for the appropriate government other than referring it to the appropriate authority as contemplated under section 10 of the Industrial Dispute Act.

9. Following the above law, we find that learned Assistant Labour Commissioner ought to have made an effort to ascertain as to whether or not any industrial dispute existed instead of ascertaining as to who had raised the dispute and then recording a finding that Union had