JUDGMENT :

The present writ petition has been filed for quashing reference refusal order contained in letter dated 15.02.2017 issued by the appropriate Government, whereby the dispute for protection of wages of the petitioner has been denied to be referred for adjudication on the ground of inordinate delay.

2. From the pleadings, it appears that the petitioner was initially appointed as Miner Loader, P.R. (piece-rated) on 02.12.1985 having personal no.02785350 as a permanent employee of Bhowra South Colliery under E.J. Area. Thereafter, he was provisionally allowed to work as Mining Sardar, time-rated worker, vide office order dated 09.02.1996, which was subsequently confirmed vide office order dated 31.12.1996/01.01.1997 and he was placed in the pay scale of Mining Sardar.

3. It further appears that the petitioner was converted from piece-rated worker to time/monthly rated worker as per the service condition of the respondent-Company. There are two types of worker, one is piece-rated and another is time/monthly rated. The wages of piece-rated worker is given on the basis of volume of work while the wages of time-rated worker is given on the basis of time i.e. daily wages.

4. The claim has been made by the concerned workman that while shifting from piece-rated to time-rated worker, last wages paid to the workman (petitioner), Special Piece Rated Allowance (S.P.R.A.) at Rs.14.00/-per day was not added in his basic pay and the same has not been taken care of by the respondents while fixing the pay scale when it has been changed to the time-rated worker. Thus, the denial of pay protection has been raised.

5. Admittedly, shifting has been made from piece-rated to time-rated in the year 1996 while industrial dispute has been raised in the year 2016.

6. The delay has been explained by the petitioner before this Court taking plea that it is continuing offence as wages are paid each month and since he gets less payment each month it gives fresh cause of action to the petitioner. Further plea has been taken by the petitioner that representation has been made to the authorities against less payment and no action has been taken by the respondents. It is fault on the part of the respondents and as such refusal of reference on the ground of delay is not maintainable.

7. On the other hand, learned counsel for the respondents has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Prabhakar v. Sericulture Deptt. reported in (2015) 15 SCC 1.

Paragraphs 28 and 42 of the aforesaid judgment are quoted herein below:

“28. The aforesaid case law depicts the following:

28.1 The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.

28.2. The words “at any time” used in Section 10 would support that there is no period of limitation in making an order of reference.

28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.

28.4. Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there can not be any hard-and-fast rule regarding the time for making the order of reference.”

xxx xxx xxx xxx xxx

“42. On the basis of the aforesaid discussion, we summaries the legal position as under:

42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that “any industrial dispute exists or is apprehended”. The words “industrial dispute exists” are of paramount importance, unless there is an existence of an industrial dispu