The existence or apprehension of an industrial dispute is a condition precedent for making a reference, and the delay and laches in raising a dispute can lead to the presumption of waiver or acquiescence.

ORDER :

(S.K. Mishra, J.)

Upon hearing the learned counsel for the parties this Court passed the following order :

2. In this intra court appeal, the appellant is aggrieved with the order passed by the learned Single Judge on 18.12.2020 in W.P.(L) No. 6254 of 2018 whereby the writ petition filed by the M/s. Janta Mazdoor Sangh, a trade union representing the case of the appellant was dismissed on the ground that the dispute referred to by the Assistant Labour Commissioner, Dhanbad is stale claim.

3. The facts of the case are not in dispute. The appellant was a permanent employee of Jogidih Colliery under Govindpur area designated as Badli Miner Loader having P. No. 03027521. The appellant was served charge-sheet dated 03.10.2005 for his misconduct of his unauthorised absence w.e.f. 26.02.2005. Later on, the appellant has been dismissed ex-parte from service on 23.01.2006. The said order was communicated to him. However, the said order was challenged by the petitioner (the Trade Union) by filing application on 13.07.2015 before the Assistant Labour Commissioner, Dhanbad. After issuance of notice to the Management, a reply was filed on 20.12.2017 controverting the statement made by the workman and when the dispute could not be reconciled, the conciliation officer sent the matter with failure report to the Central Government for necessary action. However, it is communicated to the workman vide letter dated 31.10.2018 that the dispute could not be sent before the Labour Court because of delay of more than 9 years.

4. Being aggrieved by the said order, the Union approached the court by filing the writ application which came before the learned Single Judge. The learned Single Judge issued notices to the respondents. They filed counter affidavits. After considering the facts of the case in a detailed judgment, taking into consideration several judgments of the Hon’ble Supreme Court on the issue at hand, the learned Single Judge had held that the claim of the petitioner i.e., Union is stale and the writ petition was, therefore, dismissed for the reason of delay and laches on the part of the Union as well as the workman.

5. We have carefully heard the learned counsel for the appellant. He admits that there has been an inordinate delay of approximately 9 years and 6 months and there is no justifications for such a delay except he felt that he came to know about the ex-pare order of dismissal from service after 11 months of passing of the order. He has further submitted that the petitioner is being a poor employee, he may be given some relief and appeal may be treated as a mercy petition.

6. The Hon’ble Supreme Court, in the case of “Prabhakar Vs. Sericulture Deptt.,” (2015) 15 SCC 1, has taken into consideration these aspects of delay and laches, and observed that 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 to be 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 a paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becom