# PRABHAKAR v. JOINT DIRECTOR, SERICULTURE DEPARTMENT &ANR

- **Citation:** [2015] 9 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 2015-09-07
- **Case number:** Writ Appeal No. 6145 of2009
- **Bench:** A. K. Sikri, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabhakar-v-joint-director-sericulture-department-anr-31308
- **Pages:** 35

## Headnote

Industrial Disputes Act, 1947 - s. 10, 2(k) - Industrial
c Dispute -
Delay in raising - Power of appropriate
Government to make a reference of the dispute - On facts,
termination of services of petitioner-worker, however industrial
dispute raised after 14 years - Award by Labour Court
directing reinstatement of petitioner in service without back
D wages and other benefits - Writ petition by Management
dismissed by Single Judge of the High Court- However, writ
appeal by Management allowed by Division Bench of the
High Court- Correctness of- Held: High Court was correct
holding that the reference at such a belated stage i.e. after
E fourteen years of termination without any justifiable
explanation for delay, the appropriate Government had no
jurisdiction or power to make reference of a non-existing
dispute - Although there is no limitation prescribed under
the Act for making a reference u/s. 10(1), yet it is for the
F 'appropriate Government' to consider whether it is expedient
or not to make the reference - Words 'at any time' used ins.
10(1) do not admit of any limitation in making an order of
reference - However, very stale claims should not be
generally encouraged or allowed inasmuch as unless there
G is satisfactory explanation for delay since it is risky to
industrial peace.
H
Doctrines- Doctrine of /aches and delays and doctrine
of acquiescence - Formulation of - Explained.
890
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
891
· DEPARTMENT
Dismissing the Special Leave Petition, the Court
A
HELD: 1.1 High Court correctly decided the issue
holding that the reference at such a belated stage i.e.
after fourteen years of termination without any justifiable
explanation for delay, the appropriate Government had s
no jurisdiction or power to make reference of a nonexisting dispute. [Para 43] [923-H'; 924-A]
1.2 An industrial dispute has to be referred by the
appropriate Government for adjudication and the c
workman cannot approach the Labour Court or
Industrial Tribunal directly, except in those cases which
are covered by Section 2A of the Industrial Disputes Act.
.Reference is made under Section 10 of the Act in those
cases where the appropriate Government forms an o
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 dispute (or the dispute is apprehended
or it is apprehended such a dispute may arise in near E
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 F
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 G
dispute, thus, becomes a condition precedent, though
it will be only subjective satisfaction based on material
on record. Dispute or difference arises when one party
make a demand and other party rejects the same. Before H
892
SUPREME COURT REPORTS
[2015]9 S.C.R.
A raising the industrial dispute making of demand is a
necessary pre-condition. In such a scenario, if the
services of a workman are terminated and he does not
make the demand and/or raise the issue alleging
wrongful termination immediately thereafter or within
B reasonable time and raises the same after considerable
lapse of period, whether it can be said that industrial
dispute still exists. Since there is no period of limitation,
it gives right to the workman to raise the dispute even
belatedly. However, if the dispute is raised after a long
C period, it has to be seen as to whether such a dispute
still exists? Thus, notwithstanding the fact that law of
limitation does not apply, it

## Text

_Characters 0–39,956 of 62,336. This is a partial read: ask again with offset=39956 for what follows._

A
B
[2015] 9 S.C.R. 890
PRABHAKAR
V.
JOINT DIRECTOR, SERICULTURE DEPARTMENT &ANR.
(Special Leave Petition (Civil) No. 27080 of 2015)
SEPTEMBER 07, 2015
[A. K. SIKRI AND R. F. NARIMAN, JJ.]
Industrial Disputes Act, 1947 - s. 10, 2(k) - Industrial
c Dispute -
Delay in raising - Power of appropriate
Government to make a reference of the dispute - On facts,
termination of services of petitioner-worker, however industrial
dispute raised after 14 years - Award by Labour Court
directing reinstatement of petitioner in service without back
D wages and other benefits - Writ petition by Management
dismissed by Single Judge of the High Court- However, writ
appeal by Management allowed by Division Bench of the
High Court- Correctness of- Held: High Court was correct
holding that the reference at such a belated stage i.e. after
E fourteen years of termination without any justifiable
explanation for delay, the appropriate Government had no
jurisdiction or power to make reference of a non-existing
dispute - Although there is no limitation prescribed under
the Act for making a reference u/s. 10(1), yet it is for the
F 'appropriate Government' to consider whether it is expedient
or not to make the reference - Words 'at any time' used ins.
10(1) do not admit of any limitation in making an order of
reference - However, very stale claims should not be
generally encouraged or allowed inasmuch as unless there
G is satisfactory explanation for delay since it is risky to
industrial peace.
H
Doctrines- Doctrine of /aches and delays and doctrine
of acquiescence - Formulation of - Explained.
890
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
891
· DEPARTMENT
Dismissing the Special Leave Petition, the Court
A
HELD: 1.1 High Court correctly decided the issue
holding that the reference at such a belated stage i.e.
after fourteen years of termination without any justifiable
explanation for delay, the appropriate Government had s
no jurisdiction or power to make reference of a nonexisting dispute. [Para 43] [923-H'; 924-A]
1.2 An industrial dispute has to be referred by the
appropriate Government for adjudication and the c
workman cannot approach the Labour Court or
Industrial Tribunal directly, except in those cases which
are covered by Section 2A of the Industrial Disputes Act.
.Reference is made under Section 10 of the Act in those
cases where the appropriate Government forms an o
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 dispute (or the dispute is apprehended
or it is apprehended such a dispute may arise in near E
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 F
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 G
dispute, thus, becomes a condition precedent, though
it will be only subjective satisfaction based on material
on record. Dispute or difference arises when one party
make a demand and other party rejects the same. Before H
892
SUPREME COURT REPORTS
[2015]9 S.C.R.
A raising the industrial dispute making of demand is a
necessary pre-condition. In such a scenario, if the
services of a workman are terminated and he does not
make the demand and/or raise the issue alleging
wrongful termination immediately thereafter or within
B reasonable time and raises the same after considerable
lapse of period, whether it can be said that industrial
dispute still exists. Since there is no period of limitation,
it gives right to the workman to raise the dispute even
belatedly. However, if the dispute is raised after a long
C period, it has to be seen as to whether such a dispute
still exists? Thus, notwithstanding the fact that law of
limitation does not apply, it is to be shown by the
workman that there is a dispute in praesenti. For this.
0
purpose, he has to demonstrate that even if considerable
period has lapsed and there are laches and delays, such
delay has not resulted into making the industrial dispute
cease to exist. Therefore, if the workman is able to give
satisfactory explanation for these laches and delays and
E demonstrate that the circumstances discloses that issue
is still alive, delay would not come in his way because of
the reason that law of limitation has no application. On
the other hand, if because of such delay dispute no
longer remains alive and is to be treated as "dead", then
F it would be non-existent dispute which cannot be
referred. In those cases where there was no agitation by
the workman against his termination and the dispute is
raised· belatedly and the delay or laches remain
unexplained, it would be presumed that he had waived
G his right or acquiesced into the act of termination and,
therefore, at the time when the dispute is raised it had
become stale and was not an 'existing dispute'. In such
circumstances, the appropriate Government can refuse
to make reference. In the alternative, the Labour Court/
H Industrial Court can also hold that there is no "industrial
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
893
DEPARTMENT
dispute" within the meaning of Section 2(k) of the Act A
and, therefore, no relief can be granted. [Para 40) [920-FH; 921-A-H; 922-A-H; 923-A-B]
1.3 In those cases where the Court finds that
dispute still existed, though raised belatedly, it is always B
permissible for the Court to take the aspect of delay into
consideration and mould the relief. In such cases, it is
still open for the Court to either grant reinstatement
without back wages or lesser back wages or grant
compensation instead of reinstatement. The law on this C
issue has to be applied in the said perspective in such
matters. [Para 41) [923-B-D]
1.4 Although there is no limitation prescribed under
the Act for making a reference under Section 10(1) of the o
Act, yet it is for the 'appropriate Government' to consider
whether it is expedient or not to make the reference. The
words 'at any time' used in Section 10(1) do not admit of
any limitation in making an order of reference and laws
of limitation are not applicable to proceedings under the E
Act. However, the policy of industrial adjudication is that
very stale claims should not be generally encouraged
or allowed inasmuch as unless there is satisfactory
explanation for delay as, apart from the obvious risk to
industrial peace from the entertainment of claims after F
long lapse of time, it is necessary also to take into account
the unsettling effect which it is likely to have on the
employers' financial· arrangement and to avoid
dislocation of an industry. [Para 42) [923-D-G]
1.5 It is now a well recognised principle of
jurisprudence that a right not exercised for a long time
is non-existent. Even when there is no limitation period
prescribed by any statute relating to certain proceedings,
G
in such cases Courts have coined the doctrine of laches H
894
SUPREME COURT REPORTS
[20~5] 98.C,R.
A and delays as well as doctrine of acquiescence and nonsuited the litigants who approached the Court belatedly
without any justifiable explanation for bringing the action
after unreasonable delay. Doctrine of laches is in fact an
application of maxim of equity "delay defeats equities".
B This principle is applied in those cases where
discretionary orders of the Court are claimed, such as
specific performance, permanent or temporary
injunction, appointment of receiver etc. These principles
are also applied in the writ petitions filed under Articles
C 32 and 226 of Constitution of India. In such cases, Cou'rts
can still refuse relief where the delay on the petitioner's
part has prejudiced the respondent even though the
petitioner might have come to Court within the period
0 prescribed by the Limitation Act. [Paras 36, 37) [919-C-F]
1.6 Likewise, if a party having a right stands by and
sees another·acting in a manner inconsistent with that
right and makes no objection while the act is in progress
he cannot afterwards complain. This principle is based
E on the doctrine of acquiescence implying that in such a
case party who did not make any objection acquiesced
into the alleged wrongful act of the other party and,
therefore, has no right to complain against that alleged
F wrong. Thus, in those cases where period of limitation
is pn~scribed within which the action is to be brought
befo're'the Court, if the action is not brought within that
prescribed period the aggrieved party loses remedy
and cannot enforce his legal right after the period of
G limitation is over. Likewise, in other cases even where
no limitation is prescribed, but for a long period the
aggrieved party does not approach the machinery
provided under the law for redressal of his gri9vance, it
can be presumed that relief can be denied on the ground
H of unexplained delay and laches and/or on the
·1PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
895
DEPARTMENT
presumption that such person has waived his right or A
acquiesced into the act of other. These principles as part
of equity are based on principles relatable to sound
public policy that if a person does not exercise his right
for a Ion~ time then such a right is non-existent. [Paras
38, 39] [919-G-H; 920-A-D]
B
Raghubir Singh v. General Manager, Haryana
Roadways, Hissar(2014) 10 SCC 301; Sapan Kumar .
Pandit v: U.P. State Electricity Board & Ors. 2001 (3)
SCR 1081: (2001) 6 SCC 222; State of Madras v. C.P.
Sarathy &Anr. (1953) 4 SCR 334; Western India Match
Company Ltd. v. The Western India Match Co. Workers
Union & Ors. 1970 (3) SCR 370: (1970) 1 SCC 225;
Ram Avtar Sharma & Ors. v. State of Haryana & Anr.
1985 (3) SCR 686: (1985) 3 SCC 189; The Se~retary,
Indian Tea Association v. Ajit Kumar Barat & Ors. 2000
(1) SCR 787: (2000) 3 SCC 93; Prem Kakarv. State of
Haryana &Anr. 1976 (3) SCR 1010: (1976) 3 SCC 433;
Sultan Singh v. State of Haryana & Anr. 1995 (6) Suppl.
SCR 629: (1996) 2 SCC 66; Shalimar Works Ltd. v.
Their Workmen (1960) 1 SCR 150; Vazir Sultan
Tobacco Company v. State of Andhra Pradesh (1964)
1 LLJ 622; Nedungadi Bank Ltd. v. K.P. Madhavankutty
& Ors.2000 (1) SCR 459: (2000) 2 SCC 455 - referred
to.
Blacks Law Dictionary 51" Edn p 424 - referred to.
Case Law Reference
(2014) 10 sec 301
2001 (3) SCR 1081
(1953) 4 SCR 334
referred to.
Para 3, 25
referred to.
Para 5, 24
referred to.
Para 9, 10,17
c
D
E
F
G
H
896
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A
1970 (3) SCR 370
referred to.
Para 10
1985 (3) SCR 686
referred to.
Para 15
2000 (1) SCR 787
referred to.
Para 17
1976 (3) SCR 1010
referred to.
Para 17
B
1995 (6) Suppl. SCR 629 referred to.
Para 17
(1960) 1 SCR 150
referred to.
Para 20
(1964) 1 LLJ 622
referred to.
Para 22
c 2000 (1) SCR 459
referred to.
Para 23
CIVIL APPELLATE JURISDICTION : Special Leave
. Petition (Civil) No. 27080 of 2015
From the Judgment and Order dated 06.06.2011 of the
D High Court of Karnataka Circuit Bench at Dharwad in Writ
Appeal No. 6145 of2009.
Sharanagouda Patil, Supreeta Patil, (for S-legal.
Associates) for the Petitioner.
E
The Judgment of the Court was delivered by
A. K. SIKRI, J. Delay condoned.
1) This special leave petition arises from the judgment
F
dated.June 06, 2011 passed by the High CourtofKarnataka,
Circuit Bench at Dharwad, whereby writ appeal of the
respondents (hereinafter referred to as the 'Management')
herein was allowed resulting in setting aside the award of the
G Labour Court directing reinstatement of the petitioner herein
in service without back wages and other benefits, even when
the said order was _up_held by the Single Judge of the said
High Court in the writ petition filed by the Management
challenging the award.
H
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
897
DEPARTMENT [A. K. SIKRI, J.]
2) We may state at the outset that the main factor with A
which the High Court has been influenced is that the petitioner,
whose services were terminated on April 01, 1985, raised the
industrial dispute only in the year 1999, i.e. after a period of
more than fourteen years. On the facts of this case, the High
Court has held that there was no 'live' dispute and even when
B
no period of limitation is provided for raising the disputes under
the Industrial Disputes Act, 1947 (hereinafter referred to as
the 'Act') and provisions of the Limitation Act, 1963 are not
applicable, there could not have been a reference at such a
belated stage, inasmuch as, after a lapse of such abnormal C
time, the dispute ceases to exist and, therefore, the appropriate
Government had no jurisdiction or power to make a reference
of a non-existent dispute. The petitioner has questioned the
appropriateness of this view taken by the High Court.
D
3) Primary submission of the learned counsel appearing
for the petitioner is that once it is accepted that the law of
limitation does not apply, the Government could make the
reference even if the dispute was raised belatedly and in such
circumstances power of the Labour Court is to mould the relief.
E
In support of this contention, learned counsel referred to the
judgment of this Court in Raghubir Singh v. General
Manager, Haryana Roadways, Hissar1•
In order to
appreciate the aforesaid contention, we scan through the basic
F
facts of the present case.
4) The petitioner was appointed as a Clerk in the
Sericulture Department, Government of Karnataka, Belgaum
on April 01, 1984. His services were terminated on April 01,
1985. During the period April 01, 1985 till 1999, the petitioner G
did not approach any judicial/quasi-judicial authority
challenging the said termination. In fact, not even a notice or
legal notice was served upon the Management questioning
1 (2014) 10 sec 301
H
898
SUPREME COURT REPORTS
[20~5]9 S.C.R.
A the validity of the said termination. However, some time in the
year 1999, the petitioner approached the appropriate
Government alleging that his services were terminated illegally
and in violation of the provisions of Section 25F of the Act.
Insofar as delay is concerned, in the claim made by the
B petitioner, only explanation given was that he had approached
the Management on several occasions with request to reinstate
him in service and pay back wages and other consequential
benefits He also alleged that though the Management initially
assured that they would reinstate him, but dragged on the
C matter on one pretext or the other and when they ultimately
told him that they would not reinstate him into service, he had
no alternative but to raise the industrial dispute. The
conciliation proceedings have started, which ended in failure.
0
Thereafter, the appropriate Government referred the matter
regarding validity of termination of the petitioner for
adjud 1cation.
5) The Management had taken a specific plea in the
conciliation proceedings as well as before the Labour Court
E that such a reference was not competent and the Retitioner
was not entitled to any relief when he had raised the dispute
after fourteen years of his termination. On merits it was pleaded
that the Management had not termi.nated the services and, in
F fact, it is the petitioner who left th;e services. Various issues
were framed by the Labour Court, which included a specific
issue as to whether any relief could be given when the dispute
was raised after fourteen years of alleged termination. After
the evidence was led, the Labour Court passed !Pe.award
G holding that the petitioner had worked for more;than 240 days
and his services were terminated by the Management without
complying with the provisions of Section 25F of the Act. The
termination was, thus, held to be invalid. The contention of the
Management that the petitioner had left the service of his own
H was negatived by the Labour Court with the reason that no
PRABl;IAKAR v. JOINT DIRECTOR, SERICULTURE
899
DEPARTMENT [A. K. SIKRI, J.]
person would give UP. the work easily without any cause and A
as the petitioner had not got any alternate employment
anywhere, the question of leaving his job by himself did not
arise. Insofar as the issue of raising the dispute belatedly is
concerned, the Labour Court held that even ifthere was a delay
of fourteen years, only relief was required to be moulded B
because of that reason. Thus, the Labour Court ordered
reinstatement, but denied back wages or other benefits. For
this purpose, the Labour Court referred to the judgment of this
. Court in Sapan Kumar Panditv. U.P. State Electricity Board
&~2
c
6) As pointed out above, the writ petition preferred by
the Management against this award was dismissed by the
Single Judge of the High Court. Against the order of dismissal
passed by the learned Single Judge, the Management D
preferred writ appeal, which has been allowed by the Division
Bench vide impugned judgment dated June 06, 2011. This
special leave petition is preferred challenging the said
judgment and there is also a delay of 1438 days in filing the E
same.
7) F_rom the facts narrated above, it becomes clear that
for a period of fourteen years no grievance was made by the
petitioner qua his alleged termination. Though it was averred
that the petitioner had approached the Management time and
F
again and was given assurance that he would be taken back
in service, there is nothing on record to substantiate this. No
notice was served upon the Management.
There is no
assurance given in writing by the Management at any point of
. time. Such assertions are clearly self-serving. Pertinently, even G
the Labour Court has not accepted the aforesaid explanation
anywhere and has gone by the fact that the dispute was raised
after a delay of fourteen years. Therefore, keeping in mind the
2 (2001) s sec 222
H
900
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A
aforesaid facts, we would decide the issue which has arisen,
namely, whether reference of such a belated claim was
appropriate.
8) It may be stated that the question is of utmost
B importance as it is seen that many times, as in the instant case,
the workers raise dispute after number of years of the cause
of action. Whether the dispute can still be treated as surviving?
Or whether it can be said that dispute does not exist when the
concerned workmen after his say termination kept quiet for
C
number of years and thus acquiesced into the action?
9) Before we proceed to deal with the aforesaid
questions, it would be proper to discuss the power of
'appropriate Government' under Section 10 of the Act in
o referring or refusing to refer the dispute for adjudication. It is a
peculiar position provided under the Act that an aggrieved
workman cannot approach the Labour Court or Industrial
Tribunal directly for adjudication of !industrial dispute'. Except
those cases falling under Section 2A of the Act, he has to seek
E
reference of dispute to Labour Court/Industrial Tribunal under
Section 10 of the Act. 'Appropriate Government', as defined
under Section 2(a) oftheAct, is empowered to referthe dispute.
Section 10( 1) stipulates that 'appropriate Government' may,
at any time, by order in writing, refer the dispute to a Board,
F
Labour Court or Industrial Tribunal where 'it is of the opinion
that any industrial dispute exists or is apprehended'.
Interpreting this Section, way back in the year 1953, this Court
in the case of State of Madras v. C.P. Sarathy &Anr. 3 stated
the following propositions:
G
H
"(i) The Government should satisfy itself, on the facts
and circumstances brought to its notice, in its
subjective opinion that an 'industrial dispute' exists
or is 'apprehended';
3 (1953) 4 SCR 334
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
DEPARTMENT [A. K. SIKRI, J.]
· (ii) the factual existence of a dispute or its
apprehension and the expediency of making
reference are matters entirely for the Government
to decide;
(iii) the order making a reference is an
administrative act and it is not a judicial or a quasijudicial act; and
(iv) the order of reference passed by the
Government cannot be examined by the High Court
in its jurisdiction under Art. 226 of the Constitution
to see if the Government had material before it to
support the conclusion that the dispute existed or
was apprehended."
901
A
B
c
D
These propositions were based on unamended Act
which did not contain the words 'where the appropriate
Government is of the opinion'.
10) In Western India Match Company Ltd. v. The
Western India Match Co. WorketS Union & OtS.4 , this Court E
took support of C.P. Sarathy's5 case to hold that function of
the appropriate Government to make reference under Section
10(1) is an administrative function. This view that the
appropriate Government is performing an administrative act F
and not judicial or quasi-judicial act while making reference is
found in various judicial pronouncements made by this Court
even thereafter.
11) The satisfaction of the existence of an industrial
dispute or the satisfaction that an industrial dispute is G
apprehended is 'a condition precedent to the order of
reference'. An order of reference cannot be made mechanically
• c1e10) 1 sec 22s
5 Note 3 above
H
902
SUPREME COURT REPORTS
[2015] 9S.C.R.
A without forming an opinion. For formation of the necessary
opinion, the 'appropriate Government' must also be satisfied
that a person whose dispute is being referred for adjudication
is a 'workman'. If the dispute is not between an employer and
his workman, it is not an 'industrial dispute' and the Government
B can justifiably refuse to refer the dispute. From the material
placed before it, the Government reaches an administrative
decision whether there exists an existing or apprehended
industrial dispute. In either event, it can exercise the power
under this Section.
c
12) The adequaey or the sufficiency of the material on
which the opinion was formed is beyond the pale of juaicial
scrutiny. If the action of the Government in making the reference
is impugned by a party, it·would be open to such a party to
D show that what was referred was not an industrial dispute and
that the Tribunal had no jurisdiction to make the award. But if
the dispute was an industrial dispute, its factual existence and
the expediency of making a reference in the circumstances of
a particular case are matters entirely for the Government to
E decide upon and it will not be competent for the Court to hold
the reference bad and quash the proceedings for want of
jurisdiction merely because there was, in its opinion, no
material before the Government on which it could have come
F to an affirmative conclusion on those matters.
13) When the 'appropriate Government' makes a
reference of an industrial dispute for adjudication, it does not
decide any question of fact or law. The only condition, which
the exercise of that power should satisfy, is that there should
G be the existence or apprehension of an industrial dispute. When
once the Government is satisfied about this question, it
acquires jurisdiction to refer the dispute for adjudication.
However, the condition precedent to the formation of such
H opinion, that there should be an _existing or apprehended
, PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
DEPARTMENT [A. K. SIKRI, J.]
·903
'industrial dispute', is imperative and the recitals of the A
existence or apprehension of the industrial dispute cannot
preclude the Court to exercise its power of judicial review and
to determine whether, in fact, there was any material before
the 'appropriate Government' and if there was; whether the
Government applied its mind in coming to the conclusion that B
an industrial dispute was in existence or was apprehended
and it was expedientto make the reference. Therefore, an order
of reference is open to judicial review if it is shown that the
appropriate Government had no material before it or it has not
applied its mind to the material before it or has not taken into C
consideration certain vital facts which it ought to have taken
into consideration.
14)"Likewise, when the appropriate Government refuses
to make reference, it is also amenable to judicial review if it is D
shown that the appropriate Government did not tak!3 into
consideration the relevant material which could show existence
or apprehension of industrial dispute or if it is shown that the
reasons for refusing to make reference are irrelevant or not
germane to the formation of opinion.
E
15) It has been held in catena of judgments that while
performing this administrative function, the Government would
not decide the dispute between the parties which may be.
termed as judicial function and such judicial function is to be
F
discharged by the Labour Court/Industrial Tribunal only. In Ram
Avtar Sharma & Ors. v. State of Haryana &Anr.6, this Court
held that ifthe Government, while refusing to make reference
delves into the merits of the dispute, it is not permissible under
law and the appropriate course to make reference and such G
dispute are to be settled/decided by the Labour Court/Industrial
Tribunal as an adjudicatory authority. Following observations
, of the Court are worth noting:
6 (1985) 3 sec 189
H
904°
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A
"Therefore the view that while exercising power
under Section 10(1) the functions performed by the
appropri~te Government is ans administrative
function and not a judicial or quasi-judicial function
B
c
D
E
F
is beyond the pale of controversy.
Now if the Government performs an administrative
act while either making or refusing to make a
reference under Section 10(1 ), it cannot delve into
the merits of the dispute and take upon itself the
determination of lis. That would certainly be in
excess of the power conferred by Section 10.
Section 10 requires the appropriate Government
to be satisfied that the industrial dispute exists or
is apprehended. This may permit the appropriate
Government to determine prima facie whether an
industrial dispute exists or claim is frivolous or
bogus or put forth extraneous and relevant reasons
not for justice of industrial peace and harmony. Every
administrative determination must be based on
ground relevant and germane to the exercise of
power. If the administrative determination is based
on the relevant, extraneous or grounds not germane
to the exercise of power, it is liable to be questioned
in exercise of the power of judicial review."
16) From the aforesaid discussion, it clearly follows that
even when making a reference by the appropriate Government
is an administrative act, before making such a reference it
has to form an opinion as to whether any industrial dispute
G exists or is apprehended. While forming this opinion, the
appropriate Government is supposed to take all relevant facts
into consideration touching upon this aspect. If the power is
not exercised properly, it is amenable to judicial review. Thus,
H where an industrial dispute exists or his apprehended, but the
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
905
DEPARTMENT[A. K. SIKRI, J.]
appropriate Government refuses to make reference, such a A
refusal can be challenged in the court of law. Conversely, which
is equally true, if the reference is made even when no dispute
exists or is apprehended, such a reference will also be subject
to judicial review.
B
17) We may refer to the judgment in the case of The
Secretary, Indian Tea Association v. Ajit Kumar Barat &
Ors. 7 In that case, the "appropriate Government" refused to
make a reference on the ground that the concerned employee
who had raised the dispute was not 'workman' within the C
meaning of Section 2(s) of the Act. While doing so, the
Government considered the salary and allowances drawn by
the employee as well as the nature of work performed by him,
including his power to sanction expenses incurred by his Office.
The concerned employee (respondent in the said case) filed D
a writ petition against the order of the appropriate Government
refusing to make reference and the High Court in that writ
petition directed the Government to make the reference as to
· whether he was a workman. Appeal filed by the appellant
therein was also dismissed and in these circumstances the E
appellant preferred Special Leave Petition and that is how the
matter came up for consideration before this Court. Granting
leave and ultimately allowing the appeal of the appellant, this
Court set aside the judgment of the High Court and upheld the F
order of the Government refusing to make reference. Relying
upon its earlier judgment in the case of C.P. Sarathy8, Prem
Kakarv. State of Haryana &Anr.9, and Sultan Singh v. State
of Haryana & Anr.10, the Court observed that the order under
Section 10 of the Act was an administrative order and the
Government was entitled to go into the question whether
7 c2000) 3 sec 93
8 Note 3 above.
9 (1976) 3 sec 433
10 (1996) 2 sec 66
G .
H
.9P.6, .. ,.
SUPREME COURT REPORTS
'[2015]9'S.C.R ·
A
industrial dispute exists or is apprehended and it will be only
subjective satisfaction on the basis of material on records and
being an administrative' order no /is is involved. The position
in law was summarised as under:
B
c
D
E
F
.G
H
(i) the appropriate Government would not be
justified in making a reference under Section 10 of
the Act without satisfying itself on the facts and
circumstances brought to its notice that an industrial
dispute exists or apprehended and if such a
reference is made it is desirable, wherever
possible, for the Government to indicate the nature
of dispute in the order of reference;
(ii) the order of the appropriate Government making
a reference under Section 10 of the Act is an
administrative order and not a judicial or quasijudicial one and the Court, ther~fore, cannot
canvass the order of the reference closely to see if
there was any material before the Government to
support its conclusion, as if it was a judicial or quasijudicial order;
(iii) an order made by the appropriate Government
under Section 10 of the Act being an administrative
order no /is is involved, as such an order is made
on the subjective satisfaction of the Government;
(iv) if it appears from the reasons given that the
appropriate Government took into account any
consideration irrelevant or foreign material, the
Court may in a given case consider the case for a
writ of mandamus and;
(v) it would, however, be open to a party to show
that what was referred by the Government was not
an industrial dispute within the meaning of the Act.
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
DEPARTMENT [A K. SIKRI, J.]
907 -l
,,
18) At this stage, it may be pointed out that admittedly'~ A
the law of limitation does not apply to industrial disputes.
Limitation Act does not apply to the proceedings under the
Industrial DisputesActand under the Industrial DisputesAct
no period of limitation is prescribed. This is now well settled
by series of judgments of this Court.
B
19) On the reading of these judgments, which are
discussed hereinafter, it can be discerned that in some
decisions where the reference was made after a lapse of
considerable period, the Court did not set aside the reference C
but moulded the relief by either granting reinstatement but
denying back wages, fully or partially, or else granted
compensation, denying reinstatement. On the other hand, in
some of the decisions, the Court held that even when there
was no time prescribed to exercise power under Section 10 D
of the Act, such a power could not be exercised at any point of
time to revive matters which had since been settled or had to
become stale. We would like to refer to these judgments at
this juncture.
E
20) As early as in 1959, this Court in the case of Shalimar
Works Ltd. v. Their Workmen11 pointed out that there is no
limitation prescribed in making a reference of disputes to
Industrial Tribunal under Section 10(1) of the Act. Atthe same
time, the Court also remarked that the dispute should be F
referred as soon as possible after they have arisen and after
conciliation proceedings have failed. In that case, reference
was made after four year of dispute having arisen. In these
circumstances, this Court held that relief of reinstatement
should not be given to the discharged workmen in such a G
belated and vague reference.
21) Again, in Western India Match Company Ltd.12,
though upholding the reference of dispute made nearly six years
11 (1960)1SCR150
12 Note 4 above
H
908
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A after the previous refusal to make the reference, the Court
observed that in exercising its discretion to make reference,
the Government will take into consideration the tirne which had
lapsed between its earlier decision and the date when it
decides to reconsider it in the interest of justice and industrial
B peace. Following observations from this judgment need to be
c
D
E
F
G
H
noticed for the purposes of the present case:
"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 referthe 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
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
DEPARTMENT [AK. SIKRI, J.]
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.
xx
xx
xx
13. It is true that where a Government reconsiders
its previous decision and decides to make the
reference, such a decision might cause
inconvenience to the employer because the
employer in the meantime might have acted on the
belief that there would be no proceedings by way
of adjudication of the dispute between him and his
workmen. Such a consideration would, we should
think, be taken into account by the Government
whenever, in exercise of its discretion, it decides
to reopen its previous decision as also the time
which has lapsed between its earlier decision and
the date when it decides to reconsider it. These
are matters which the Government would have to
take into account while deciding whether it should
reopen its former decision in the interest of justice
and industrial peace but have nothing to do with its
jurisdiction under Section 4(k) of the Act. Whether
the intervening period may be short or long wouid
necessarily depend upon the facts and
circumstances of each case, and therefore, in
•
909
A
B
c
D
E
F
G
H
910
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A
construing the expression "at any time" in Section
4(k) it would be impossible to· lay down any limits
to it."
22) Again in Vazir Sultan Tobacco Companyv. State
8
of Andhra Pradesh13 , the Andhra Pradesh High Court held
that reference made nearly six years after the dispute
amounted to inordinate, unreasonable and unjustifiable.
23) In Nedungadi Bank Ltd. v. K.P. Madhavankutty &
C
Ors. 14, the Court cautioned that power of reference should be
exercised reasonably and in a rational manner and not in a
mechanical fashion. It was specifically observed that power
to make reference cannot be exercised to revive settled
matters or to refer stale disputes in spite of absence of statutory
D limitation period, The Court not only reiterated that the courts·
had power of judicial review, though to limited extent, but also
made following pertinent observations on delay:
"6. Law does not prescribe any time-limit for the
E
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.
F
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 the
order dismissing the respondent from servic~. At
the time reference was made no industrial dispute
G
existed or could be even said to have been
apprehended. A dispute which is stale could not
be the subject-matter of reference under Section
10 of the Act. As to when a dispute can be said to
13 (1964) i LLJ 622
H
1• (2000) 2 sec 455
PRABHAKAR v. JOINT DIRECTOR, SERICULTURE
911
DEPARTMENT [A. K. SIKRI, J.]
be stale would depend on the facts and
A
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
B
c
D
E
F
G
H
912
SUPREME COURT REPORTS
[2015] 9 S.C.R.
A
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.
B
c
D
E
F
G
H
8. It was submitted by the respondent that once a
reference has been made under Section 10 of the
Act a Labour Court has to decide the same and
the High Court in writ jurisdiction cannot interfere in
the proceedings of the Labour Court.