Delay in filing a reference does not preclude adjudication on merits, especially when the dispute remains alive.

JUDGMENT :

M. K. Thakker, J.

1. Rule returnable forthwith. Learned AGP Ms.Surbhi Bhati waives service of notice of Rule on behalf of respondent no.1 and 2.

2. With the consent of both the parties, this matter was heard finally.

3. This petition is filed under Article 226 and 227 of the Constitution of India with following prayers:

Your Lordships may be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the award and order dated 19.03.2022 passed by Ld. Labour Court in Reference (LCA) No. 37 of 2014 is prima facie illegal, improper, arbitrary and contrary to the evidence on record as well as contrary to the facts of the present case, and be pleaseto quashed and set aside the same.

4. Brief facts arising for consideration of this petition is that petitioner was working with the respondent as a part time employee form the year 1991 to1996 and thereafter from 1996 to 2004 petitioner worked for District Panchayata, Bhadra, Ahmedabad and upto 07.03.2006 petitioner worked with the office of the Director of Archaeology Department. The petitioner as per the statement of claim was working for more than 8 hours and was paid salary at the rate of Rs.1350/-. The petitioner was disengaged from the services from 08.03.2006 and by challenging the termination order, the writ petition was filed before this Court being SCA No.23348/2006. This Court vide order dated 21.11.2006 directed the petitioner to make a representation and the respondent-Authority were directed to consider the same within a period of two months. Thereafter, as per the case of the petitioner representation was made on 07.12.2006 however, the same was remained unattended. Ultimately in the year 2013 the petitioner raised grievance before the Conciliation officer i.e the Assistant Labour Commissioner in the year 2013 and the dispute was referred to the labour court and was numbered being reference (LCA) No.37/2014. Learned labour court after considering the arguments advanced by the learned advocates for the respective parties has framed four issues as follows:

1. Whether delay has been properly explained while filing reference?

2. Whether the second party has proved that the service were terminated in breach of the provisions of ID Act?

3. Whether the second party is entitled for award of reinstatement alongwith all consequential benefits to his original post?

4. What order?

5. At the end, learned labour court has decided first issue i.e that whether delay has been properly explained in filing the reference and answer was given in negative form and thereafter the remaining issues were remain undecided and the reference came to be rejected only on the ground of delay which is subject matter of challenge before this Court.

6. Heard learned advocate Mr.P.C.Chaudhari for the petitioner and learned AGP Ms.Surbhi Bhati for the respondent.

6.1. Learned advocate Mr.P.C.Chaudhari submits that after the order passed by this Court dated 21.11.2006 the representation were made however, the same remained unattended and though it was contended by the respondent before the learned labour court that the reply was given and same was received, no contemporaneous record was produced supporting that contention. Learned advocate Mr.P.C.Chaudhari submits that infact, learned labour court has committed error in recording that reply which is produced below mark 23/2 has been received by the present petitioner. Learned advocate Mr.P.C.Chaudhari submits that the reply which is filed before this Court wherein it is contended that reply of the representation was sent through RPAD, however, no acknowledgment slip was produced show that same is received by present petitioner. Learned advocate Mr.P.C.Chaudhari submits that even if learned labour court comes to the conclusion that there is a delay in preferring the reference but then also with regard to the other issue adjudication was required which was not done by the learned la