# I.I.T. Kanpur v. U.O.I. & Ors

- **Citation:** (2022) 4 ILRA 766
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-04
- **Case number:** Writ-C No. 1214 of 2022
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/i-i-t-kanpur-v-u-o-i-ors-48316
- **Pages:** 13

## Headnote

A. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
question of making or refusing to make a
reference for adjudication is the discretion
of the Government - power to make a
reference is an administrative power -
when the Government decides to make
Reference, an industrial dispute between
the employer and his employees, must
either
exists
or
is
apprehended
-
Government has to keep in mind as to
whether the industrial dispute is still
existing or live dispute and has not
become a stale claim - No reference is
contemplated when the dispute is not an
industrial dispute, or industrial dispute no
longer exists or is not apprehended, or
where
industrial
dispute
is
already
adjudicated or in respect of which there is
an agreement or a settlement between
the parties or where the industry in
question is no longer in existence (Para
24)

B. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
Constitution
of
India,
Article
226
-
Quashing of Reference - High Court has
jurisdiction to entertain a writ petition
when there is an allegation that there is
no industrial dispute in existence or
apprehended on the date of reference for
adjudication.

As a rule, writ court does not interfere with a
reference order for the reason of such order
being purely administrative - Such orders, only
set in motion, the adjudicatory procedure by
making the reference - writ Court does not
readily quash such administrative orders &
thereby prevent/injunct the Industrial Tribunal
to enter into adjudication of the industrial
dispute, at the initial stage as it does not cause
any prejudice to any party - parties are at liberty
to raise all defence before the Labour Court -
However there is no embargo on the writ Court
to quash a wholly inappropriate or undesirable
or invalid reference order, in case no industrial
dispute exists - it must be seen as to whether
there exist an industrial dispute before the same
may be referred to adjudication - High Court has
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
767
jurisdiction to entertain a writ petition when
there is an allegation that there is no industrial
dispute in existence or apprehended on the date
of reference for adjudication. (16, 17, 18, 19)

Facts - Appropriate government referred for
adjudication the question as to whether
termination of the services of workman is legal
and justified - respondent workman had earlier
filed writ petition against dispensation of his
service - his writ petition was dismissed on
merits - rights of the respondent workman stood
adjudicated finally, upon dismissal of intra-Court
appeal - Such a reference, if allowed, to exist
may give rise to two eventualities - One, the
Labour Court may plainly follow the earlier
adjudication made by this Court. In that case,
reference made would be futile - If the Labour
Court chose to take a different view than
recorded by the writ Court such adjudication or
award would be in teeth of the adjudication of
writ court - that award would be defective in
jurisdiction - In fact, no industrial dispute exists,
as on date (Para 35)

Allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,950 of 43,580. This is a partial read: ask again with offset=39950 for what follows._

766 INDIAN LAW REPORTS ALLAHABAD SERIES
which virtually means allowing the review
petition, without deciding the question of
maintainability of the review petition. Such
a course is not permissible in law."

18. In the present case, it is pointed
out here that the petitioner was present
during hearing of the application for
interim relief that is why the State has
taken objection regarding maintainability
of the reference application we hold that
reference petition was not maintainable as
on the ground of limitation, therefore, on
the application for interim relief question of
maintainability was rightly considered by
the Tribunal.

19. In view of the aforesaid legal
discussion, we are unable to persuade
ourselves to the arguments advanced by
learned counsel for the petitioner. The writ
petition is dismissed accordingly.

20. No order as to costs.
----------

(2022)04ILR A766
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-C No. 1214 of 2022

I.I.T. Kanpur ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rohan Gupta

Counsel for the Respondents:
A.S.G.I., Sri Brijesh Kumar, Sri Vivek Kumar
Singh, Sri P.H. Vashishth, Sri B.P. Singh (Senior
Adv.)
A. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
question of making or refusing to make a
reference for adjudication is the discretion
of the Government - power to make a
reference is an administrative power -
when the Government decides to make
Reference, an industrial dispute between
the employer and his employees, must
either
exists
or
is
apprehended
-
Government has to keep in mind as to
whether the industrial dispute is still
existing or live dispute and has not
become a stale claim - No reference is
contemplated when the dispute is not an
industrial dispute, or industrial dispute no
longer exists or is not apprehended, or
where
industrial
dispute
is
already
adjudicated or in respect of which there is
an agreement or a settlement between
the parties or where the industry in
question is no longer in existence (Para
24)

B. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
Constitution
of
India,
Article
226
-
Quashing of Reference - High Court has
jurisdiction to entertain a writ petition
when there is an allegation that there is
no industrial dispute in existence or
apprehended on the date of reference for
adjudication.

As a rule, writ court does not interfere with a
reference order for the reason of such order
being purely administrative - Such orders, only
set in motion, the adjudicatory procedure by
making the reference - writ Court does not
readily quash such administrative orders &
thereby prevent/injunct the Industrial Tribunal
to enter into adjudication of the industrial
dispute, at the initial stage as it does not cause
any prejudice to any party - parties are at liberty
to raise all defence before the Labour Court -
However there is no embargo on the writ Court
to quash a wholly inappropriate or undesirable
or invalid reference order, in case no industrial
dispute exists - it must be seen as to whether
there exist an industrial dispute before the same
may be referred to adjudication - High Court has
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
767
jurisdiction to entertain a writ petition when
there is an allegation that there is no industrial
dispute in existence or apprehended on the date
of reference for adjudication. (16, 17, 18, 19)

Facts - Appropriate government referred for
adjudication the question as to whether
termination of the services of workman is legal
and justified - respondent workman had earlier
filed writ petition against dispensation of his
service - his writ petition was dismissed on
merits - rights of the respondent workman stood
adjudicated finally, upon dismissal of intra-Court
appeal - Such a reference, if allowed, to exist
may give rise to two eventualities - One, the
Labour Court may plainly follow the earlier
adjudication made by this Court. In that case,
reference made would be futile - If the Labour
Court chose to take a different view than
recorded by the writ Court such adjudication or
award would be in teeth of the adjudication of
writ court - that award would be defective in
jurisdiction - In fact, no industrial dispute exists,
as on date (Para 35)

Allowed. (E-5)

List of Cases cited:-

1. Nedungadi Bank Ltd. Vs K.P. Madhavankutty
& ors., (2000) 2 SCC 455

2. U.P. State Road Transport Corpn. Vs Babu
Ram, (2006) 5 SCC 433

3. Director, Food and Supplies, Punjab & anr.,
(2007) 5 SCC 727

4. Shashi Prabha Vs Deputy Director of
Consolidation Budaun & ors; Writ - B No. 42060
of 2015; 13.05.2020

5. M/s IRCON International Ltd. through
Chairman & Managing Director Vs Bipin & ors.,
2018 (157) FLR 825

6. Management of the Express Newspapers (P)
Ltd., Madras Vs Workers & ors., AIR 1963 SC 569

7. Western India Match Co. Ltd. Vs Western
India Match Co. Workers Union & ors., (1970) 1
SCC 225
8. National Engineering Industries Ltd. Vs St. of
Raj. & ors., (2000) 1 SCC 371

9. Sapan Kumar Pandit Vs U.P. State Electricity
Boad & ors., (2001) 6 SCC 222

10.Prabhakar Vs Joint Director, Sericulture
Department & anr., (2015) 15 SCC 1

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Sri Rohan Gupta, learned
counsel for the petitioner; Sri B.P. Singh,
learned Senior Advocate, assisted by Sri
P.H. Vashishth, learned counsel appearing
for respondent no.4 and; Sri Brijesh
Kumar, learned counsel appearing for
respondent nos. 1, 2 and 3.

2. Present writ petition has been filed
against the order of the Deputy Chief
Labour Commissioner (Central), Kanpur
dated
26.10.2021
whereby
the
said
authority has acted in exercise of its powers
under Section 10(1)(d) of the Industrial
Disputes Act, 1947 (hereinafter referred to
as the 'Act') and referred the following
dispute for adjudication to the Central
Government
Industrial
Tribunal-cumLabour Court, Kanpur.

"Whether the action of management of
Indian Institute of Technology, Kanpur in
terminating the services of Shri Ghanshyam
Pandey S/O Late Udai Shanker Pandey,
Clerk-cum-Typist w.e.f. 09.07.1989, is
Legal and justified ? If not, to what relief
the workman is entitled to and from which
date ?"

3. Learned counsel for the petitioner
would submit, the respondent workman
was engaged as a temporary Lower
Division Clerk at the petitioner institution
on 09.01.1987 for a fixed term of one year
768 INDIAN LAW REPORTS ALLAHABAD SERIES
on fixed payment of Rs. 600/- per month.
That
engagement
made
against
the
specified project was later renewed against
another
project
w.e.f.
09.01.1988
to
08.01.1989, against revised fixed payment
of Rs. 650/- per month. Later, that
engagement was extended and it lasted till
08.07.1989, against fixed payment of Rs.
1000/- per month. It is not in dispute that
respondent no.4/workman did not work for
any length of time, in any capacity since
09.07.1989. In that regard, the said
respondent workman had first approached
this Court in Civil Misc. Writ Petition No.
12415 of 1989 (Ghanshyam Pandey Vs.
Director, Indian Institute of Technology,
Kanpur & Anr.) seeking following relief:

"(i) to issue a writ, order or direction
in the nature of mandamus directing the
respondents not to dispense with the
service of the petitioner as Lower Division
Clerk and pay the regular salary of Lower
Division Clerk as admissible in law."

That writ petition was filed on
04.07.1989. However, on 20.10.1989, an
amendment application was filed whereby
the following relief was also added by way
of amendment:

"(iv) to issue a suitable writ, directions
or order commanding the respondents to
treat the petitioner in their employment as
if he has not been kept out of employment
since 08.07.1989 and also to pay him full
wages from 08.07.1989 to the date of his
reinstatement together with continuity of
service."

4. After exchange of affidavits, the
aforesaid writ petition was decided by
judgement dated 05.12.1998. Therein,
this
Court
reached
the
following
conclusions:

(i) the appointment letter relied upon
by the petitioner dated 09.01.1987 ( copy
Annexure CA-1 of the counter affidavit)
made it clear that it was a temporary
engagement against consolidated payment
of Rs. 600/- per month;

(ii)
the
engagement
could
be
discontinued without notice; .

(iii) the respondent workman could be
transferred to any other project etc.; .

(iv) the engagement was on a
temporary basis for a fixed period;

(v) the respondent workman had
applied for regular appointment subsequent
to
his
aforesaid
engagement
against
advertisement no. 3/87 dated 06.02.1987.
However, he was unsuccessful;

(vi) the claim of violation of Section
25F of the Act or 6N of the U.P. Act was
unfounded. The respondent workman was
found to have been engaged purely on ad
hoc/temporary basis for a fixed term, for
project
work
by
the
research
and
development department, of the petitioner
institution;

(vii) upon perusal of the minutes of the
selection committee (with respect to the
advertisement dated 06.02.1987), referred
to above, the Writ Court found, the
respondent workman was not entitled to
any benefit, against plea of certain other
junior workman (being continued in
engagement), as he had worked on
temporary basis or daily-wage basis under
a project for a fixed term. The distinction of
status and source of salary payment of two
types of employees was also considered.
The writ petition was dismissed.

5. Against the above order, the
respondent workman preferred intra-court
appeal being Special Appeal No. 1024 of
2001, which was also dismissed by order
dated 11.09.2006. A review petition was
filed by the respondent workman. In that
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
769
supplementary affidavit appears to have
been filed (copy Annexure RA-4 of the
Rejoinder
Affidavit).
By
means
of
paragraph nos. 8 and 9 of that affidavit, the
respondent workman again set up a plea of
having been appointed against a regular
post.

6. The review petition was also
rejected by order dated 11.01.2011 passed
by the Division Bench of this Court. It
reads as below:

"The review application was earlier
dismissed on 24.10.2009, as the Court
found it infructuous in spite of recalling the
same. Now, none appears on behalf of the
appellant in spite of repeated calls.

Therefore, there is no other alternative
before us but to refuse to modify the order
passed by the Division Bench of this Court
presided by one of us (Hon'ble Amitava
Lala, J.) on 11.9.2006. The order is as
follows:-

"Upon
hearing
learned
counsel
appearing for the parties, we do not find any
justification to keep the special appeal
pending and is disposed of in view of the
reasons given herein below. The dispute is
mainly with regard to the fact whether the
petitioner was appointed in a sanctioned post
and subsequently transferred to a project or
he was appointed in a project, which will be
completed by the efflux of time.

Upon going through the record we
find
that
the
petitioner's/appellant's
appointment was in the project. Therefore,
we do not find any merit to justify to pass
any favourable order in favour of the
petitioner. Having so the Special Appeal
stands dismissed.

However, no order is passed as to
costs."

We do not find any merit in the review
application.

Therefore, the review application is
dismissed on merit, however, without
imposing any cost."

7. The matter rested there for about
nine years. Thereafter, the respondent
workman moved an application seeking
reference of industrial dispute. The said
application is dated 25.06.2020. In that
application, by means of paragraph no.3 it
was stated, the petitioner had been
regularly selected on the post of LDC-cumtypist
on
09.01.1987.
Further,
on
18.07.2016, he realised, many persons who
were appointed with the petitioner and
some who were junior to him, had been
given permanent status and would also get
retiral benefit. Therefore, it was further
alleged that the affidavits filed by the
petitioner establishment in the earlier writ
petition were false. Last, violation of
Section 25F, 25G, 25H and 25T of the Act,
was pleaded.

8. On its part, the petitioner
establishment objected to the reference
sought, relying on the earlier decision of
this Court. In such circumstances, the
impugned reference has arisen.

9. Learned counsel for the petitioner
would submit, though the power to make a
reference is an administrative power yet,
there must be seen to exist an industrial
dispute before the same may be referred to
adjudication. In the instant case, the
respondent workman had approached this
Court by means of an earlier writ petition
being Civil Misc. Writ Petition No. 12415
of 1989. Therein (upon amendment), he
sought relief against dispensation of service
and further sought, positive directions for
payment of regular salary together with
backwages
upon
reinstatement
after
08.07.1989.
That
writ
petition
was
770 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed on merits and not on account of
alternative remedy. The rights of the
respondent workman stood determined and
adjudicated finally, upon dismissal of intraCourt appeal.

10. Upon firm adjudication made by
this Court, the dispute espoused by the
respondent workman stood decided. In fact,
upon that adjudication it had to be
recognized that there did not exist/survive
any industrial dispute. In this regard,
reliance has been placed on a decision of
three-Judge bench of the Supreme Court in
Nedungadi
Bank
Ltd.
Vs
K.P.
Madhavankutty & Ors., (2000) 2 SCC
455; U.P. State Road Transport Corpn.
Vs. Babu Ram, (2006) 5 SCC 433 and;
Director, Food and Supplies, Punjab &
Anr., (2007) 5 SCC 727.

11. In short, it has been submitted, it
is not the issue of delay in raising the
dispute but non-existence thereof that
warrants interference by this Court, in
exercise of extraordinary jurisdiction of this
Court under Article 226 of the Constitution
of India.

12. The writ petition has been
vehemently opposed by learned Senior
Advocate appearing for the respondent. He
would submit, it is wrong to say that the
respondent workman was first engaged in
the year 1987. Referring to the passages of
the earlier decision of the learned single-
Judge in Civil Misc Writ Petition No.12415
of 1989, it has been shown, the respondent
workman had been engaged even prior to
1987 though not against any permanent
post or regular sanctioned post. Then, much
emphasis has been laid on the appointment
letter dated 09.01.1987 issued to the
respondent workman, to submit the said
respondent workman had been engaged
after following due selection process for a
regular post. For ready reference, the said
letter is extracted herein below :

"INDIAN
INSTITUTE
OF
TECHNOLOGY KANPUR RESEARCH
& DEVELOPMENT OFFICE

Dr R N Biswas IIT Post Office
IIT Post Office Kanpur - 208016

Dean,
Research
&
Development
Kanpur-208016

No.RD/A-10/85-86/1535

Date : Jan.09.1987

Mr. G Pandey

C/C Mr SD Singh

Nankari

IIT, Kanpur

Dear Mr Pandey,

This has reference to your application
for the post of LDC-CUM-TYPIST out of
the R & D Funds.

I am glad to inform you that it has
been decided to appoint you on the post of
LDC-CUM-TYPIST
in
the
Project
No.DOE/EE(KRS)/86-87/55
on
a
consolidated salary of 600/- per month for a
period of one year with effect from the date
of your joining on the following terms and
conditions.

The appointment is purely temporary
and is subject to termination without notice.
You may be transferred to any other project
or deputed to any section of the Institute for
assisting the work pertaining to R & D
Office.

You will be entitled to Casual Leave
and Annual Leave as admissible under
rules.

Yours sincerely

Sd/-
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
771

B N Biswas"

13. Then, referring to the new facts
brought by means of the reference
application (noted above), as part of his
submissions, it has been stated, the plea of
violation of Sections 25F, 25G, 25H and
25T of the Act first became available to the
respondent workman only in the year 2016
and not before. Till then, the respondent
workman was labouring under a mistaken
impression of fact due to concealment of
correct facts by the petitioner institution.
Therefore, adjudication is sought on such
new facts with respect to rights not
adjudicated in the writ petition. The
reference order must survive.

14. Second, it has been stated, the
conduct
of
the
petitioner
had
been
fraudulent in not disclosing the correct
status
of
the
respondent
workman's
engagement, at the relevant time. Since that
status was concealed from the Court in the
earlier adjudication made by it, the
judgement obtained by the petitioner was
based on fraud practised by it. Therefore,
the same is stated to be of no legal
consequence. In that, reliance has been
placed on a decision of the learned Single
Judge of this Court in Writ - B No. 42060
of 2015 (Shashi Prabha Vs. Deputy
Director of Consolidation Budaun & 3
Ors.), decided on 13.05.2020.

15. Third, it has been submitted, the
delay in approaching the Labour Court may
never defeat the reference. In the first
place,
the
writ
Court
may
remain
disinclined to interfere with the reference
order at the initial stage as it does not cause
any prejudice to any party. The petitioner
would be at liberty to raise all active
defence before the Labour Court including
as to any prejudice caused owing to the
conduct of the respondent workman. If
such plea is established, the relief claimed
by the respondent workman may be
modified appropriately, by the Tribunal.
Here, reliance has been placed on another
decision of the learned single Judge in M/s
IRCON
International
Ltd.
through
Chairman & Managing Director Vs.
Bipin & Ors., 2018 (157) FLR 825.

16. Having heard learned counsel for
the parties and having perused the record,
in the first place, there can be no dispute to
the approach to be adopted by the writ
Court in such matters. As a rule, the writ
court does not interfere with a reference
order for the reason of such order being
purely administrative. Such orders, only set
in motion, the adjudicatory procedure by
making the reference and thus conferring
the jurisdiction on the Labour Court to deal
with it. Only thereafter, the parties enter
into contest by filing their respective
Written
Statement
and
Replication
statement; issues are framed; evidence led;
parties are heard and; award pronounced.

17. Second, again by way of general
rule, the writ Court does not readily quash
such administrative orders and thereby
prevent/injunct the Industrial Tribunal to
enter into adjudication of the industrial
dispute being claimed to exist, the
reference order arises belatedly i.e. after
efflux of (what may prima facie appear to
be), reasonable time, it is a clearly
recognized principle that the Labour Court
may at the time of granting relief mould the
relief looking into the delay and prejudice it
may have caused to the employer.

18. Third, it is also a fact that
industrial law is a piece of welfare
legislation - to protect the rights of the
weaker of the two parties.
772 INDIAN LAW REPORTS ALLAHABAD SERIES

19. That said, there is no embargo on
the writ Court to quash a wholly
inappropriate or undesirable or invalid
reference order, in case no industrial
dispute exists. The rule referred to above is
a rule of self restraint, exercised by the writ
Court. It exists in the interest of justice.

20. In Management of the Express
Newspapers
(P)
Ltd.,
Madras
Vs.
Workers & Ors., AIR 1963 SC 569, it
was observed as below:

"10. The true legal position in regard
to the jurisdiction of the High Court to
entertain the appellant's petition even at the
initial stage of the proceedings proposed to
be taken before the Industrial Tribunal, is
not in dispute. If the action taken by the
appellant is not a lockout but is a closure,
bona fide and genuine, the dispute which
the respondents may raise in respect of
such a closure is not an industrial dispute
at all. On the other hand, if, in fact and in
substance, it is a lockout, but the said
action has adopted the disguise of a
closure, and a dispute is raised in respect
of such an action, it would be an industrial
dispute which industrial adjudication is
competent to deal with. The appellant
contends that what it has done is a closure
and so, the dispute in respect of it cannot
be validly referred for adjudication by an
Industrial Tribunal. There is no doubt that
in law, the appellant is entitled to move the
High Court even at the initial stage and
seek to satisfy it that the dispute is not an
industrial dispute and so, the Industrial
Tribunal has no jurisdiction to embark
upon the proposed enquiry.

11. There is also no doubt that the
proceedings before the Industrial Tribunal
are
in
the
nature
of
quasi-judicial
proceedings and in respect of them a writ
of certiorari can issue in a proper case. If
the Industrial Tribunal proceeds to assume
jurisdiction over a non-industrial dispute,
that can be successfully challenged before
the High Court by a petition for an
appropriate writ, and the power of the
High Court to issue an appropriate writ in
that behalf cannot be questioned.

15. The High Court undoubtedly has
jurisdiction to ask the Industrial Tribunal
to stay its hands and to embark upon the
preliminary enquiry itself. The jurisdiction
of the High Court to adopt this course
cannot be, and is indeed not disputed. But
would it be proper for the High Court to
adopt such a course unless the ends of
justice seem to make is necessary to do so?
Normally, the questions of fact, though they
may be jurisdictional facts the decision of
which depends upon the appreciation of
evidence, should be left to be tried by the
Special Tribunals constituted for that
purpose. If and after the Special Tribunals
try the preliminary issue in respect of such
jurisdictional facts, it would be, open to the
aggrieved party to take that matter before
the High Court by a writ petition and ask
for
an
appropriate
writ.
Speaking
generally, it would not be proper or
appropriate that the initial jurisdiction of
the Special Tribunal to deal with these
jurisdictional facts should be circumvented
and the decision of such a preliminary
issue brought before a High Court in its
writ jurisdiction. We wish to point out that
in making these observations, we do not
propose to lay down any fixed or inflexible
Rule; whether or not even the preliminary
facts should be tried by a High Court in a
writ petition, must naturally depend upon
the circumstances of each case and upon
the nature of the preliminary issue raised
between the parties. Having regard to the
circumstances of the present dispute, we
think the court of appeal was right in
taking the view that the preliminary issue
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
773
should more appropriately be dealt with by
the Tribunal. The Appeal court has made it
clear that any party who feels aggrieved by
the finding of the Tribunal on this
preliminary issue may move the High Court
in accordance with law. Therefore, we are
not prepared to accept Mr Sastri's
argument that the Appeal court was wrong
in reversing the conclusion of the trial
Judge insofar as the trial Judge proceeded
to deal with the question as to whether the
action of the appellant was a closure or a
lockout."

 (emphasis supplied)

21. In Western India Match Co. Ltd.
Vs. Western India Match Co. Workers
Union & Ors., (1970) 1 SCC 225, while
upholding the reference made, of an
industrial dispute, the Supreme Court
observed has under:

"8. From the words used in Section
4(k) of the Act there can be no doubt that
the legislature has left the question of
making or refusing to make a reference for
adjudication to the discretion of the
Government. But the discretion is neither
unfettered nor arbitrary for the section
clearly provides that there must exist an
industrial dispute as defined by the Act or
such a dispute must be apprehended when
the Government decides to refer it for
adjudication. No reference thus can be
made unless at the time when the
Government
decides
to make
it
an
industrial dispute between the employer
and his employees either exists or is
apprehended. Therefore, the expression ''at
any time', though seemingly without any
limits, is governed by the context in which
it appears. Ordinarily, the question of
making a reference would arise after
conciliation proceedings have been gone
through and the conciliation officer has
made a failure report. But the Government
need not wait until such a procedure has
been completed. In an urgent case, it can
''at any time' i.e. even when such
proceedings have not begun or are still
pending, decide to refer the dispute for
adjudication. The expression ''at any time'
thus takes in such cases as where the
Government decides to make a reference
without
waiting
for
conciliation
proceedings to begin or to be completed.
As already stated, the expression ''at any
time' in the context in which it is used
postulates that a reference can only be
made if an industrial dispute exists or is
apprehended. No reference is contemplated
by the section when the dispute is not an
industrial dispute, or even if it is so, it no
longer exists or is not apprehended, for
instance, where it is already adjudicated or
in respect of which there is an agreement
or a settlement between the parties or
where the industry in question is no longer
in existence."

 (emphasis supplied)

22. Then, in Nedungadi Bank Ltd.
Vs. K.P. Madhavankutty & Ors., (2000)
2 SCC 455, the Supreme Court cautioned -
the power to refer an industrial dispute
should not be exercised in a mechanical
manner. It may not be exercised to revive a
settled matter. It was thus held:

"6. Law does not prescribe any timelimit for the appropriate Government to
exercise its powers under Section 10 of the
Act. It is not that this power can be
exercised at any point of time and to revive
matters which had since been settled.
Power is to be exercised reasonably and in
a rational manner. There appears to us to
be no rational basis on which the Central
Government has exercised powers in this
case after a lapse of about seven years of
774 INDIAN LAW REPORTS ALLAHABAD SERIES
the order dismissing the respondent from
service. At the time reference was made no
industrial dispute existed or could be even
said to have been apprehended. A dispute
which is stale could not be the subjectmatter of reference under Section 10 of the
Act. As to when a dispute can be said to be
stale would depend on the facts and
circumstances of each case. When the
matter has become final, it appears to us to
be rather incongruous that the reference be
made under Section 10 of the Act in the
circumstances like the present one. In fact
it could be said that there was no dispute
pending at the time when the reference in
question was made. The only ground
advanced by the respondent was that two
other employees who were dismissed from
service were reinstated. Under what
circumstances they were dismissed and
subsequently
reinstated
is
nowhere
mentioned.
Demand
raised
by
the
respondent for raising an industrial dispute
was ex facie bad and incompetent.

7. In the present appeal it is not the
case of the respondent that the disciplinary
proceedings,
which
resulted
in
his
dismissal, were in any way illegal or there
was even any irregularity. He availed his
remedy of appeal under the rules governing
his conditions of service. It could not be
said that in the circumstances an industrial
dispute did arise or was even apprehended
after a lapse of about seven years of the
dismissal of the respondent. Whenever a
workman raises some dispute it does not
become an industrial dispute and the
appropriate Government cannot in a
mechanical fashion make the reference of
the alleged dispute terming it as an
industrial dispute. The Central Government
lacked power to make reference both on the
ground of delay in invoking the power
under Section 10 of the Act and there being
no industrial dispute existing or even
apprehended. The purpose of reference is
to
keep
industrial
peace
in
an
establishment. The present reference is
destructive to the industrial peace and
defeats the very object and purpose of the
Act. The Bank was justified in thus moving
the High Court seeking an order to quash
the reference in question.

 (emphasis supplied)

23. Again, in National Engineering
Industries Ltd. Vs. State of Rajasthan &
Ors., (2000) 1 SCC 371, the Supreme
Court observed:

"24. It will be thus seen that the High
Court has jurisdiction to entertain a writ
petition when there is an allegation that
there is no industrial dispute and none
apprehended which could be the subjectmatter of reference for adjudication to the
Industrial Tribunal under Section 10 of the
Act. Here it is a question of jurisdiction of
the Industrial Tribunal, which could be
examined by the High Court in its writ
jurisdiction. It is the existence of the
Industrial Tribunal (sic dispute) which
would clothe the appropriate Government
with power to make the reference and the
Industrial Tribunal to adjudicate it. If there
is no industrial dispute in existence or
apprehended the appropriate Government
lacks power to make any reference."

 (emphasis supplied)

24. Later still, in Sapan Kumar
Pandit Vs. U.P. State Electricity Boad &
Ors., (2001) 6 SCC 222 the following
conclusion was reached by the Supreme
Court, against exercise of administrative
power - to refer a non-existent industrial
dispute.

"8. The above section is almost in tune
with Section 10 of the Industrial Disputes
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
775
Act, 1947, and the difference between these
two provisions does not relate to the points
at issue in this case. Though no time-limit
is fixed for making the reference for a
dispute for adjudication, could any State
Government revive a dispute which had
submerged in stupor by long lapse of time
and rekindle by making a reference of it to
adjudication? The words ''at any time' as
used in the section are prima facie
indicator to a period without boundary. But
such an interpretation making the power
unending would be pedantic. There is
inherent evidence in this sub-section itself
to indicate that the time has some
circumscription. The words ''where the
Government is of opinion that any
industrial dispute exists or is apprehended'
have to be read in conjunction with the
words ''at any time'. They are, in a way,
complementary
to
each
other.
The
Government's power to refer an industrial
dispute for adjudication has thus one
limitation of time and that is, it can be done
only so long as the dispute exists. In other
words, the period envisaged by the
enduring
expression
''at
any
time'
terminates with the eclipse of the industrial
dispute. It, therefore, means that if the
dispute existed on the day when the
reference was made by the Government, it
is idle (sic ideal) to ascertain the number of
years
which
elapsed
since
the
commencement of the dispute to determine
whether the delay would have extinguished
the power of the Government to make the
reference.

9. Hence the real test is, was the
industrial dispute in existence on the date
of reference for adjudication? If the
answer is in the negative then the
Government's power to make a reference
would have extinguished. On the other
hand, if the answer is in positive terms
the Government could have exercised the
power whatever be the range of the
period which elapsed since the inception
of the dispute. That apart, a decision of
the Government in this regard cannot be
listed (sic) on the possibility of what
another party would think, whether any
dispute existed or not. The section
indicates that if in the opinion of the
Government the dispute existed then the
Government could make the reference.
The only authority which can form such
an opinion is the Government. If the
Government
decides
to
make
the
reference, there is a presumption that in
the opinion of the Government, there
existed such a dispute."

 (emphasis supplied)

25. Most of the above decisions were
then noticed in Prabhakar Vs Joint
Director, Sericulture Department &
Anr., (2015) 15 SCC 1. Thereafter, the
Supreme Court concluded as 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 cannot be any hard-
776 INDIAN LAW REPORTS ALLAHABAD SERIES
and-fast rule regarding the time for making
the order of reference."

 (emphasis supplied)

26. Therefore, it becomes necessary
to examine, if the relief sought through the
impugned reference, is beyond the scope of
powers of the appropriate government as
may call for any interference by this Court.
As discussed above, a reference may be
made only where a live industrial dispute
exists. If the dispute is non-existent, the
appropriate government would also remain
within its authority to decline such
reference.

27. In the present case, what has been
referred for adjudication by the appropriate
government is the question of termination
of service claimed by the respondent
workman on the post of clerk/typist w.e.f.
09.07.1989. In itself, it does suggest - an
industrial dispute exists, inasmuch as the
petitioner does not dispute the fact, it had
engaged the respondent workman. As to the
status and the rights arising therefrom, the
parties are at variance. However, the basic
fact of engagement made is undisputed.

28. Yet, purely on account of the
earlier decision of this Court in Civil Misc.
Writ Petition No. 12415 of 1989, it is also
clear that the respondent workman had not
only approached this Court with respect to
that dispute arising from such engagement
but that he had claimed relief effectively to
challenge
his
disengagement
from
09.07.1989 onwards. He had further sought
relief in the nature of reinstatement with
full backwages. This much is clear from
bare perusal of the prayer made in the writ
petition.

29. As to the adjudication made by
this Court, as noted above (in the
arguments advanced by learned counsel for
the petitioner), it is also clear, this Court
had reached fact conclusions that the
respondent-workman had been engaged on
temporary/fixed term post against projects
only,
on
fixed
payment basis.
The
respondent workman could not establish
any better rights at that stage though, he did
refer to his original appointment letter (the
contents of which have been extracted
above).
Then,
the
Court
specifically
repelled the claim made by the respondent
workman of having worked for 240 days in
one calendar year. It negated the claim
made under Section 25F of the Act or
Section 6N of the U.P. Act. As a contract
employee for fixed term on fixed payment,
the
respondent
workman
was
found
ineligible to such a claim. Then, as to the
further fact that the persons appointed
alongwith and junior to the respondent
workman had been continued in service
and granted regularization etc., again, this
Court considered that issue and decided it
against the respondent workman. That
conclusion had been reached on the
reasoning that different employees were
engaged on two different status - one by the
institute i.e. main establishment drawing
salary from the (budgeted) funds of the
institute and, the other against research
projects that derived independent funding
from other sources, made available from
time to time. The respondent workman
having been engaged for project work only,
the plea set up were negated.

30. The respondent workman was not
satisfied with the decision of the learned
single-Judge. He carried the matter to the
division bench in an intra-court appeal.
That was also dismissed. The review
petition filed thereafter was also dismissed.
No further challenge was raised. Nine years
passed. In the application filed by the
4 All. I.I.T. Kanpur Vs. U.O.I. & Ors.
777
respondent workman, seeking reference,
besides the fact no other question had been
raised as may be found not covered by the
earlier decision of this Court, no fact
pleading had arisen before the Court, as
may
create
any
doubt
as
to
the
completeness of the findings recorded by
the writ Court.

31. Merely because the document in
the shape of regularization of certain
employees may have come to the hands of
the respondent workman, it would not
amount to a fresh dispute having arisen. If
at all, such documents are relevant, the
remedy
available
to
the
respondent
workman would lie elsewhere. However,
no industrial dispute survived upon the
decision of the learned single-Judge as
affirmed by the division bench. It attained
finality.

32. The plea of fraud set up by the
respondent
workman does
not
merit
acceptance. It is a plea of convenience
rather than one of conviction. It has been
raised to create a technical exception to the
otherwise binding adjudication by this
Court. Merely because fraud may be
alleged, the effective adjudication made
does not get annulled, therefore. It is only
upon fraud being established as a fact, its
effect may be examined in subsequent
proceedings. At present, it cannot be said
on the strength of the document procured
by the respondent workman that any fraud
had been committed. In view of difference
in nature of engagement and status of
petitioner viz-a-viz other employees of the
petitioner; the plea of fraud is far fetched
and unreal.

33. What was pleaded by the
respondent
workman
(in
the
earlier
petition) was replied to by the petitioner (in
the present petition) - by means of Counter
Affidavit. If the respondent workman was
so aggrieved, he ought to have filed an
application in those proceedings, at that
stage, to compel the present petitioner to
produce any particular document. That not
done, sweeping adverse inference sought to
be invoked by the respondent workman is
not available, at this belated stage. In any
case, as noted above, the information
received by the respondent workman under
Right to Information Act does not give rise
to any new fact or plea.

34. The status of the respondent
workman
having
been
unequivocally
adjudicated - as a temporary employee
engaged on fixed term, against fixed
payment, against a project requirement, the
same does not loose its binding force
because, while making the selection, the
petitioner may have followed a procedure
akin to that usually followed in regular
selection against a sanctioned post. It is a
matter of policy that any employer may
follow while engaging fresh hands. Merely
because an employer such as the present
petitioner chose to follow the procedure
similar to that followed for regular
appointment
against
sanctioned
posts,
while engaging temporary hands for fixed
term, no better status or rights could ever
arose to the respondent workman, for that
reason.

35.