The existence of industrial dispute is essential for making a reference, and mere delay in raising the dispute cannot be a ground for refusing to make a reference. The government's opinion about the existence of a dispute is crucial for making a reference, and delay in raising the dispute does not necessarily extinguish the government's power to make a reference.

JUDGMENT :

SANDEEP V. MARNE, J.

1. Rule. Rule made returnable forthwith. With the consent of the learned Advocates for the respective parties, heard finally at the stage of admission.

2. By the present petitions, the petitioners are challenging the order dated 27.01.2020, passed by the Deputy Commissioner of Labour, Nashik, Division Nashik, referring the disputes of the respective respondents for adjudication to the Labour Court, Jalgaon. The disputes relates to reinstatement of the respondents with full back wages and continuity in service w.e.f. 29.06.2009.

3. The order of the Deputy Commissioner of Labour is assailed essentially on the ground of delay in raising the dispute. It is the case of the petitioners that on account of proceeding on strike, it issued letter dated 15.07.2009 to the concerned workmen calling them upon them to resume the duties within 72 hours, failing which it would be assumed that the workmen were not willing to work. Despite service of notice dated 15.07.2009, the concerned workmen not only failed to perform their duties but also did not raise any dispute with the petitioner Company. For the first time, on 16.10.2016 it received undated letters from the respondents demanding reinstatement with back wages. Thereafter, the respondents straight way approached the Conciliation Officer, vide letter dated 01.07.2017 along with justification statement. A notice dated 26.07.2017 was issued to the petitioners by the office of the Assistant Commissioner of Labour, Jalgaon for conciliation and the petitioner filed its detailed reply dated 24.07.2018, inter-alia raising the issue of delay, as well as non existence of any industrial dispute. The Conciliation Officer submitted a failure report dated 08.10.2018. The Deputy Commissioner, Labour, Nashik, thereafter issued notice dated 17.11.2018 to the Petitioner calling upon it to remain present for hearing. It submitted detailed reply dated 02.11.2018, once again raising the issue inter alia of delay/latches and non-existence of the industrial dispute. The Deputy Commissioner, Labour, Nashik has thereafter passed the impugned order dated 27.01.2020 referring the dispute for adjudication to the Labour Court, Jalgaon.

4. Appearing for the petitioner Mr. Pawar, the learned counsel has submitted that there existed no industrial dispute which could have been referred by the Deputy Commissioner Labour, for adjudication to the Labour Court. He submitted that after receipt of the letter dated 15.07.2009, respondents did not raise any objection or dispute for a period of 7 long years. He further submits that there was gross delay/latches in approaching the Assistant Deputy Commissioner, Labour, on the part of the respondents, on account of which, the impugned reference ought not to have been made. He relies upon judgments of the Apex Court in Prabhakar Vs. Joint Director Sericulture Department and another Vs. Joint Director Sericulture Department and another 2015, DGLS SC 1213 and State of Karnataka and Another Vs. Ravi Kumar 2009 DGLS (SC) 1644. He also relies upon judgment of this Court, Bench at Nagpur in Brij Bihari Singh s/o Bacchan Singh Vs. Western Coalfields Limited 2021 DGLS (Bom.) 1470.

5. The Ld. Additional/Assistant Government Pleaders have supported the reference order. Considering the nature of order that we propose to pass, we did not deem it necessary to issue notices to the respondents.

6. The entire thrust of submissions of Mr. Pawar is on the delay/latches in approaching the Assistant/Deputy Commissioner of Labour, thereby indicating non-existence of any industrial dispute. The provision for making a reference of a dispute to the Labour Court is to be found in Section 10 of the Industrial Disputes Act, 1947 which reads thus:

“10. Reference of disputes to Boards, Courts or Tribunals :-

(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,--

(a) refer the dispute to a Board f