The existence or apprehension of an industrial dispute is a condition precedent for making a reference under Section 10(1) of the Industrial Disputes Act, and delay and laches can lead to the presumption that a right is non-existent.

ORDER :

1. In all these petitions, the employer has challenged the order of Ministry of Labour & Employment, Government of India, passed under Clause (d) of sub-section 1 of Sub-section 2(A) of Section 10 of the Industrial Disputes Act, by which, the Central Government thought it desirable to refer the dispute as to whether the action of the Management in terminating / discontinuing the services of the respondent – workman with effect from 01.11.1999 was legal, just and proper to the Industrial Tribunal.

2 Mr.Yogen Pandya, learned counsel for the petitioner, would assail the order passed under Section 10 on the ground that it is admittedly the case of the respondent No.3 that his services were terminated on 01.11.1999 and the dispute regarding such termination has been raised after a period of 18 years. He would submit that though limitation may not apply stricto senso to the provisions of the Industrial Disputes Act, in the present case since there is a delay of more than 18 years, the orders of referring the dispute under Section 10 of the Industrial Disputes Act deserves to be quashed and set aside.

2.1 In support of his submission, Mr.Pandya, learned advocate, would rely on the decision in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division-Kota vs. Mohanlal., reported in 2013 (14) SCC 543 and the decision of the Hon’ble Supreme Court in the case of Prabhakar vs. Joint Director, Sericulture Department & Anr., reported in 2015 (15) SCC 1.

3 Opposing the petition, Mr.Rushabh Munshaw, learned counsel for respondent No.3, apart from relying on the affidavit in reply would submit that the petition deserves to be dismissed in limine. The orders under Section 10 passed by the Union of India are completely administrative in nature which cause no prejudice to the petitioner. While referring a dispute under Sec.10 of the Industrial Disputes Act, the authority has only carried out the administrative duty and the order being administrative in nature of merely refering the dispute with regard to illegal termination of respondent No.3, discretion under Article 226 of the Constitution of India in favour of the petitioner need not be entertained. He would submit that the only function that the Government is expected to undertake under Sec.10 of the Industrial Disputes Act is to refer the dispute without entering into the merits of the matter and once the dispute is referred, the Labour Court or the Tribunal to which the dispute is referred to, would determine the dispute and mould the relief in favour of the employee at the stage when final relief has to be granted to the workman. He would submit that if given an opportunity, he would satisfy the Court by filing an additional affidavit as to why and how the delay has occurred in raising the dispute, which will not prejudice the petitioner.

3.1 In support of his submission, Mr.Rushabh Munshaw, learned advocate, would rely on a decision in the case of Ralchem Limited vs. Ajit Balkrishna Kadu & ors., reported in 2012 (1) LLJ 753. Reliance was placed on paragraphs 14 to 17 of the judgement in support of his submission that the authority while referring the dispute under Sec.10 exercises administrative powers. It is not open for the petitioner to challenge in this petition an administrative order, because it does not decide the rights of the either parties.

3.2 Mr.Munshaw, learned advocate, would submit that once the appropriate Government has taken a decision to refer the dispute, that being an administrative function, and once the government having limited jurisdiction not to delve into the merits of the dispute, no exception can be found in the decision so as to warant interference in exercise of powers under Article 226 of the Constitution of India. Reliance was also placed on the decision of the Division Bench of the Delhi High Court in the case of D.D.Gears Ltd. vs. Secretary (Labour) & Ors., reported in 2005 SCC Online Del 1386. Pointed attention of the C