JUDGMENT 1. - With the consent of the parties. the case is heard finally. 2. Submission of the counsel for the petitioner is that the State has adjudicated upon the issue of the delay of filing the reference application without any justification as the delay is to be one of the relevant factors for denial of the back wages and for that it is required to be finally adjudicated by the labour court/industrial tribunal. 3. Counsel for the petitioner has placed reliance on the judgment of this Court reported in 2006(1) RLW Page 768 : [2006(3) SLR 862 (Raj.)], titled as Ram Bharose Kharwad v. State of Raj. & Anr., passed in D.B. Special Appeal (Writ) No. 745 of 2003 decided on 23rd of November 2005 wherein it has been held that the word "at any time" is an indicator to a period without boundary. Para 5 to 8 of the judgment runs as under : "5. In Sapan Kumar Pandit v. U.P. State Electricity Board (supra). their Lordships of the Supreme Court had occasion to interpret Section 10 of the Industrial Disputes Act, 1947 and a was indicated that the words at any time' as used in the section are prima facie indicator to it period without boundary. Their Lordships propounded that reference should not have been quashed merely on the ground of delay. Long delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief. (6). In Sapan Kumar Pandit's case (supra) the State Government of UP made a reference of industrial dispute for adjudication after a period of 15 years and because of the inordinate delay the High Court of Allahabad quashed the reference order passed by the Government solely on the ground of such delay. The aggrieved workman thereafter approached the Hon'ble Supreme Court challenging the judgment of the High Court of Allahabad. There Lordships of the Supreme Court in para 12 of the judgment observed as under - "There are cases in which lapse of time had caused fading or even eclipse of the dispute, if no body had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanised by the workmen or the Union on account of other justified reasons it does not cause the dispute to wan into total eclipse." (7). In the instant case the dispute does not cease to exist and reference ought not to have been declined merely on the ground of delay. We find under these circumstances the impugned order of learned Single Judge as well as the order dated July 12, 1995 passed by respondent No. 1 contrary to the ratio laid down in the judgment of Sapan Kumar Pandit's case (supra). (8). Consequently, we allow the instant appeal and set aside the order dated October 16, 2001 of the learned Single Judge and the order dated July 12.1995 passed by respondent No. 1. We direct the respondent No. 1 to refer the dispute for adjudication to the Labour Court. There shall be no order as to costs. " 4. Counsel for the State submits that the State has rightly adjudicated upon the delay while making the reference. 5. I have gone through the record of the writ petition and further considered the rival submissions of the parties. 6. Before proceeding further Section 10 and 12 of the Industrial Disputes Act, 1947 rum as under- "10. Reference of disputes to Boards, Courts or tribunals. (1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended. it may at any time], by order in writing. (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with; or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication: or (d) refer the dispute or any matter appearing to be connected with, or relevant to. the dispute. whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication : Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit. the dispute. whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication : Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit. make the reference to a Labour Court under clause (c):] [Provided further that) where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would he inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced : [Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government:] [(1 A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing,refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.] (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court [Labour Court, Tribunal or National Tribunal], the appropriate Government, if satisfied that the persons applying represent the majority of each pan, shall make the reference accordingly. [(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government: Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months : Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit : Provided also that in computing any period specified in this Sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded : Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this Sub-section had expired without such proceedings being completed. (3) Where an industrial dispute has been referred to a Board, [Labour Court. Tribunal or National Tribunal] under this section. the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference. (4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be] shall confine its adjudication to those points and matters incidental thereto. (5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a [Labour Court, Tribunal or National Tribunal] under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments. [(6) Where any reference has been made under sub- section (1 A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly. (a) if the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and (b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal. [Explanation.- In this sub-section, "Labour Court" or "Tribunal" includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State.] (7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to it National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government.] [(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.] 12. Duties of conciliation officers. (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If. on a consideration of the report referred to in sub- section (4), the appropriate Government is satisfied that there is a case for reference to a Board, [Labour Court, Tribunal or National Tribunal,] it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: [Provided that, [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute]" 7. A perusal of the said Sections 10 and 12 (5) of the Industrial Disputes Act, 1947 would reveal that the Government is to be satisfied that there is a case for reference and for arriving at the said satisfaction delay may be one of the considerations but not the sole consideration to refuse the reference. Other issues of the merits of the case are to be considered to form the opinions but non-reference cannot be made simply on the ground of delay. usually the courts/ tribunals denied the back wages of the delayed period after consideration of the merits of the case. Since the delay has been made sole ground, therefore, the same is not just, legal and proper. It should not adjudicate upon the issue. 8. I am also in agreement with the judgment of Ram Bharose Kharwad (supra) cited by the counsel for the petitioner wherein the words "any time" appearing in Section 10(1) of the Industrial Disputes Act, 1947 has been interpreted with reference to delay. 9. The present writ petition is accordingly allowed. It should not adjudicate upon the issue. 8. I am also in agreement with the judgment of Ram Bharose Kharwad (supra) cited by the counsel for the petitioner wherein the words "any time" appearing in Section 10(1) of the Industrial Disputes Act, 1947 has been interpreted with reference to delay. 9. The present writ petition is accordingly allowed. The order dated 27.10.2004 (Annexure/2) is quashed and set aside. The State Government is directed to reconsider the matter and pass appropriate order.Petition allowed. *******