ORDER The only point that was urged in this case and more particularly in the facts and circumstances as would be mentioned hereinafter, was that whether the order of reference as made in the instant case was a stale one and consequently, if the appropriate authorities under the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act), had jurisdiction to make an order of reference after a long lapse of time. 2. The petitioner Hindustan Steel Ltd., is a Company incorporated under the Companies Act, 1956 and owns and runs Steel Plants at Durgapur in West Bengal and other places including Rourkela in Orissa and Bhilai in Madhya Pradesh. Their Steel Plant in West Bengal is located at Durgapur and is known as Durgapur Steel Plant. It has been stated that the conditions of service and terms of employment of the employees of the said Durgapur Steel Plant or those who are employed therein, are governed by the certified Standing Orders of the concerned Plant. It has further been stated under Clause 21 of the concerned Standing Orders (a) when an employee is required to act in a higher grade or post, he shall be entitled to the minimum of that higher grade or post provided that when his basic wages in his own post is equal to or higher than the said minimum, he shall be entitled to wages at the next incremental stage of the higher grade or post and (b) acting allowance shall be admissible in case of employees engaged in a manufacturing process (as defined in the Factories Act), when they act in another higher grade or post or skilled, semi skilled or technical nature for not less than one day but in case of other employees only when the vacancy is for not less than 30 days. 3. By an order of reference dated 5th July 1973, the appropriate authorities under the said Act in exercise of their powers under S. 10 referred an industrial dispute to the following effect : Whether the following workmen are entitled to any action allowance in Electrician Grade II for the period from 1.7.64 to 30.6.66 ? 1. Shri A.B. Barua 2. “ S.P. Konar 3. “ Batakrishna Singh 4. “ M.R. Burman 5. “ S.K. Pal 6. “ B. Pirit. 7. “ K.B. Samanta 8. “ J.N. Singh 9. “ N. Bhattacharjee 10. 1. Shri A.B. Barua 2. “ S.P. Konar 3. “ Batakrishna Singh 4. “ M.R. Burman 5. “ S.K. Pal 6. “ B. Pirit. 7. “ K.B. Samanta 8. “ J.N. Singh 9. “ N. Bhattacharjee 10. “ A.L. Thakur 11. “ B.K. Das 12. “ G. Karmakar 13. “ B.N. Bhattacharjee for adjudication before the Respondent Ninth Industrial Tribunal, West Bengal. The said order of reference stated the disputes as existing between M/s. Hindustan Steel Ltd, Durgapur Steel Plant and their workmen as mentioned hereinbefore, represented by Hindustan Steel Employees’ Union and after necessary amendment, the said order of reference was to be read and construed for entitlement of “any acting allowance” instead of “any action allowance”, as mentioned hereinbefore. The said correction of the order of reference was made by a corrigendum dated 23rd March, 1974. 4. Before the Respondent Tribunal parties to the dispute filed their respective written statements and it was the case of the concerned Union that the 13 concerned workmen named in the issue mentioned in the order of reference were appointed as Linemen/ Wireman Grade-II in the scale of Rs. 50.75/- in 1960 in the Electrician Maintenance under Construction Department and were placed as Electrician Gr. II in the scale of Rs. 135170/- on acting allowance since 14.9.63 till 30.6.1964. The Opposite Company in the mean time brought about 50 persons on Muster Roll in daily rate of Rs. 3.50, to Rs 4.00 and placed them in their regular scale of Rs. 135-170/-, as Electrician Gr. II, but the concerned workmen continued on acting basis. The concerned workmen raised a hue and cry, as these persons junior to them both in respect of date of joining and wage rate were placed in a better position. The O.P. company thereafter without redressing their grievance discontinued even the acting allowance since 1.7.64 creating serious industrial relation problem. Thereafter, the O.P. company issued an order dated 22.7.66 giving the concerned workmen the scale of Rs. 135-170/-. The discontinuation of a acting allowance of the concerned workmen since 1.7.64 till 30.6.66 is unjust, indiscriminate and an act of favouritism to a group of about 50 persons to the prejudice of the concerned workmen since 1.7.64 till 30.6.66 and the Company in their written statement denied on merits that the concerned workmen were appointed in 1960 or in the Electrical Maintenance Section under the Construction Department. It is their specific case that amongst the concerned workmen S/Sri S.P. Kinar, A.B. Barua, J.N Singh, Mr. R. Burman, K.B. Samanta, B.P. Piri, B.K. Singh & S.K. Pal belonged to the regular establishment of the Chief Engineer's Organisation & were attached to A.E. Electrical Maintenance of the said Organisation and the rest were work-charged/Muster roll employees. In or about August, 1962, the Electrical Maintenance Circle was started for D.S.P. Township and the said concerned workmen were posted on deputation to work in the above said circle. At that time and even thereafter for a considerable time, there was no established manning and/or sanctioned hierarchy in the Maintenance Circle and the concerned workmen were deputed to do such work as they would normally do under the Chief Engineer's Organisation in their respective designation of Wiremen Gr. II and Lineman Gr. II. The concerned workmen accepted the work on deputation without any protest. It is admitted that the concerned workmen were paid acting allowance in accordance with the rules since 14.9.63, till 30.6.64 as in the mean time, the manning of the said Maintenance Circle was sanctioned. It is denied that 50 persons who were on Muster Roll, were placed in the grade of Electrician Gr. II or that there was any necessity for the concerned workmen to continue on an acting basis. It is also contended that if the posts of Electrician Grade II were duly filed in there would be no occasion for acting against such posts. It is submitted that it was most unreasonable and illogical for the concerned workmen to raise hue and cry for promotion as their services were merely borrowed from the Chief Engineer's Organisation and they had no rightful claim for promotion to the position of Electrician Grade-II. A Workman or a Lineman could not go to the position of Electrician Grade-II, as there were 2 rungs or 3 rungs above them as Electrician Gr. II, Electrician Gr. III, Lineman Gr. II and Wireman Gr. II. The concerned workmen had no occasion to do the acting after 1.7.64 as the positions of Electrician Gr. II were already filled up. Out of the benevolent attitude, the O.P., Company elevated the concerned workmen to the position of Electrician Gr. III and that was in itself adequate compensation (if any, called for) for the work they did on deputation in the Maintenance Circle, D.S.P. Township Maintenance. II were already filled up. Out of the benevolent attitude, the O.P., Company elevated the concerned workmen to the position of Electrician Gr. III and that was in itself adequate compensation (if any, called for) for the work they did on deputation in the Maintenance Circle, D.S.P. Township Maintenance. There was no occasion for awarding acting allowance since 1.7.64 till 30.6.66 as they have no claim that the concerned workmen acted in the position of Electrician Gr. II at that time and it was contended that the real grievance of the concerned workmen was of promotion rather than of any non-payment of acting allowance and since they have duly been promoted to the superior position since July 1966, they would not be entitled to any relief. 5. After consideration of the relevant evidence, both oral and documentary as produced, the learned Ninth Industrial Tribunal, by the Award dated 9th January 1976, as in Annexure “D” to the petition, held that all the concerned workmen were entitled to acting allowance as Electrician Grade-II for the period since 1st July 1964 till 30th June 1966. It was against such Award, the present Rule with the corresponding interim order was obtained by the said Company on 9th August 1977. 6. In their affidavit-in-opposition dated 15th July 1980, it has been stated on behalf of the answering Respondents, that the concerned workmen were appointed as Linemen/ Wireman Grade-II in the scale of Rs. 60.65/- in the Electrical Maintenance under Construction Department of the said Company and they were placed against the post of Electrical Grade-II in the scale of Rs. 130.170/-on acting allowance basis since 14th September 1963 till 30th June 1964. It has also been stated that the workmen concerned have been paid acting allowance from 14th September, 1963 till 30th June 1964 as Electrician Grade-II. It has also been alleged that the said Company in the meantime, brought about 50 persons, who were on Muster roll on daily rate of Rs. 3.50 P to Rs. 4.00 P and placed them in the regular scale of Rs. 135-170/- as Electrician Grade-II, while the workmen concerned continued the same job as before and the said Company stopped payments of their acting allowances on and from 1st July 1964 till 30th June 1966. 3.50 P to Rs. 4.00 P and placed them in the regular scale of Rs. 135-170/- as Electrician Grade-II, while the workmen concerned continued the same job as before and the said Company stopped payments of their acting allowances on and from 1st July 1964 till 30th June 1966. Such action of the said Company, was claimed to be inappropriate and improper, which again has been stated to have censed great dissatisfaction amongst the employees and as such, it has been claimed that the order of reference was duly made by the authorities under the said Act on being, appropriately satisfied. The affidavit-in-reply to the said opposition was dated 21st July 1980 and therein, nothing new has been pleaded and the said Company has averred that the grounds as taken by them in the petition, were substantial and valid for interference by this Court. 7. Mr. Chakravorti, appearing in support of the Rule, could not contend that acting allowance from Ist July 1964 to 30th June 1966, to the employees concerned have been paid but he has stated that thereafter, on and from 1st July 1966, the exployees concerned have been promoted and from that date, they are being paid their necessary allowances. It was claimed by him that the order of reference which was male by the appropriate authorities under the said Act on 13th February, 1976 and for disputes covering a period from 1st July 1964 to 30th June 1966, being made after such a long time, should be held to be a state one and as such, bad. It should be noted that neither before the Respondent Tribunal nor in the several grounds as taken in the petition, on the basis whereof, this Rule was taken, such point has been pleaded. But, Mr. Chakravorti claimed that the point being a point of law and since the same touches the jurisdiction, the said Company would be entitled to urge the same. It is an undoubted fact that such staleness of the order of reference or the invalidity of the same on that basis was not either urged or put forward anywhere or at any point of time before the hearing of this case. As such, Mr. It is an undoubted fact that such staleness of the order of reference or the invalidity of the same on that basis was not either urged or put forward anywhere or at any point of time before the hearing of this case. As such, Mr. Patranabis, appearing for the answering Respondents claimed that if such point was allowed to be taken or urged that would certainly be a surprise to his clients and as such, this Court should not allow the point to be urged now. On the basis of the rules of pleading certainly a person must not be caught by surprise or should not be asked to answer any question, which is neither urged before the inferior Tribunal nor such a point has been taken in the petition. As such, the exception as taken, by Mr. Patranabis would be of substances A point touching the question of jurisdiction, can of course be allowed to be urged and agitated in a writ proceedings for the first time, if it touches the jurisdiction, provided such point has been taken either in the petition or is made known to the answering Respondents. 8. In support of his submissions about the staleness of the reference more particularly that such staleness has made the reference bad, Mr. Chakravorti firstly, referred to the determinations of the Supreme Court in the case of M/s. Shalimar Works Limited v. Their Workmen, AIR 1959 SC 1217 . In that case, it has been observed that. It is true the there is no limitation prescribed for reference of dispute to an Industrial Tribunal even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceeding have failed, particularly so when disputes related to discharge of workmen wholesale. It has also been observed there that, but where none of the workers did this, for almost three years, when the first reference was made, the Tribunal would be justifying in refusing the relief of reinstatement to avoid dislocation of the industry specially so when the reference was vague inasmuch as the names of 250 workmen to be reinstated were not sent to the Industrial Tribunal and no list of the men was given to it till practically after the whole proceeding was over. To appreciate the circumstances in which such observations were made certain facts of the Supreme Court case will have to be restated. From the judgment as referred to hereinbefore, it would appear that a Major Engineering Tribunal was set up by the Government of West Bengal in October 1947, to decide disputes between major engineering firms and their workmen. The company as well as the workmen were parties to the dispute which was pending before that tribunal. The issues before that tribunal were of a very comprehensive nature and included all kinds of disputes that could arise between employers and employees. While that adjudication was pending the workmen suddenly pressed certain demands upon the company for immediate solution without awaiting the award of the Tribunal even though the demands so put forward were under adjudication. The company naturally refused to meet the demand when they were under investigation by the Tribunal. Consequently, the workmen who had come to work on 23-3-1948, started a sit-down strike after they had entered the company's premises. This strike continued from March 23 to 27, and it was on March 27, that the workmen were ejected from the premises by the police according to the case of the company or were induced to leave the premises by the police according to the case of the workmen. Anyhow, after the workmen left the premises on 27th, the company gave notice on that day that the works would be closed indefinitely. Another notice was given by the company on 6-4-1948 in which it was given by the company on 6-4-1948, in which it was notified that all those who had resorted to illegal strike from March 23, 1948, would be deem to have been discharged from that date. Thereafter, no work was done till 15-5-1948. On that date the company gave a notice that if sufficient suitable men applied for employment on or before May 1948, the works could be opened on a limited scale from May 20. It seems however, that nothing came out of this notice. Eventually on July 5, the company gave another notice to the effect that the works would reopen on 6.7.1948, and all other employees could apply and if reengaged their past services would be counted and their conditions of services would be awarded by the Major Engineering Tribunal, which it seems, had given its award in the meantime. Eventually on July 5, the company gave another notice to the effect that the works would reopen on 6.7.1948, and all other employees could apply and if reengaged their past services would be counted and their conditions of services would be awarded by the Major Engineering Tribunal, which it seems, had given its award in the meantime. It was also said in the notice that up to July 21, the company would only consider engagement of former employees and no fresh labour would be recruited till that date. Thereafter the majority in services and everyone who applied up to July 21, was reengaged. Thereafter the company refused to reengaged the old employees, a few of whom are said to have applied in November and December 1948, August 1951, February 1952 and January 1953 and that in November 1949, the Assistant Labour Commissioner was moved by one of the unions about non-employment of 249 workmen. It wrote to the company in that connection and replied that the workmen had been discharged having taken part in an illegal strike and it could not see its way to re-employ them. For a long time nothing seems to have happened thereafter till we come to 7-10-1952, when the first reference was made with respect to the reinstatement of 250 old workers. The original reference was to the tribunal consisting of Shri S.K. Niyogi, that gentleman went on retirement before he could dispose of the reference and consequently another reference was made on 18-11-1953, to the present tribunal consisting of Srhi M.L. Chakraborty. No list of 250 workmen was sent to the Tribunal about whom it was to consider the question of reinstatement. No list of these workmen was filed even before the Industrial Tribunal during the adjudication proceedings. It was only after the arguments on behalf of the company were over on 14.12.1953, that a list of names was filed before the Industrial Tribunal. This list consisted of 220 persons only through the reference was with respect to 250. As has been pointed out by the Appellate Tribunal, it was a carelessly prepared list in which some names were repeated. Against some serial numbers there were neither names nor ticket numbers. In spite of this, the Industrial Tribunal ordered reinstatement without specifying who were to be reinstated; it really did not know who were the persons to be reinstated. As has been pointed out by the Appellate Tribunal, it was a carelessly prepared list in which some names were repeated. Against some serial numbers there were neither names nor ticket numbers. In spite of this, the Industrial Tribunal ordered reinstatement without specifying who were to be reinstated; it really did not know who were the persons to be reinstated. What it did was to order the company in order that identity of the workmen to be reinstated might be established to give a general notice on its notice board notifying the striker to come and join their duties on a fixed date and to reinstate whichever striker within the time allowed. 9. Thus, the said determinations of the Supreme Court in any view, do not lay down the absolute proposition, that in all cases an order of reference cannot be made, if such reference is sought to be raised or espoused after some lapse of time. The making of the reference would certainly be within the discretion of the appropriate authorities under the said Act and the language of section 10 and more particularly the words “at any time”, would suggest that there is no period of limitation ordinarily prescribed for making an order of reference and the discretion as mentioned above, would be within the power and competence of the authorities concerned to be exercised duly, in justifiable cases. 10. The other case, to which Mr. Chakravorti made a reference was that a Andhra Pradesh High Court in the case of Vazir Sultan Tabaco Company, Hyderabad v. State of Andhra Pradesh & Ors. 1964(1) LLJ 622, where the delay nearly of six years in making a reference was held to be inordinate, unreasonable and unjustifiable. The said decision was made on the basis of the determinations or application of the principles as laid down by the Supreme Court, in the case of the M/s. Shalimar Works Limited v. Their Workman (supra). 11. It should also be noted that under the scheme of the said Act or the adjudication to be made therein stale claims must not ordinarily be encouraged or allowed, unless there are, as mentioned above, satisfactory explanation offered, as in the even of entertainment of such stale claim, without due explanation made, would place the other side in great disadvantage or harassment with regard to their financial commitments and agreement. In the instant case, there was no legal evidence forthcoming, which would establish any such harassment or monetary disadvantage required to be faced by the said Company. It must also be observed that even through, it is very difficult to construe the words “at any time” in section 10, with any clarity but that would not mean that in exercising power under or in the context of that expression, that authorities concerned can act arbitrarily, capriciously or without any evidence. 12. Above being the position, I am of the opinion that no interference on the basis of the existing materials or the evidence as available, would be possible in this case and as such, the only submission on the staleness of the reference, which was put forward by Mr. Chakravorti should fail and the Rule in thus discharged. There will be no order as to costs. The prayer for stay of operation of this order is refused. Rule discharged.