JUDGEMENT R.B. Misra, Judge: The present writ petition along with other writ petitions and connected Letters Patent Appeals [LPAs, arising in reference to different orders passed by learned Single Judge of this Court in respective writ petitions)], are to be adjudicated. Keeping in view the decisions of this High Court, different High Courts as well as Supreme Court from time to time, this High Court (DB), while hearing the Writ Petition No.1486 of 2007, has been pleased to refer vide its order dated 14.11.2007, the following question of law for adjudication by a larger Bench:- “Whether the State Government while exercising powers under Section 10(1) of the Industrial Disputes Act, is precluded from deciding the question as to whether the claim made by a workman is stale or not? 2. For adjudicating the above question, the facts of each and every writ petition and LPAs are not being given separately. For brevity, the facts of only writ petition No.1486 of 2007 are being mentioned to deal, adjudicate and answer the question of law referred above. 3. The petitioner of Writ Petition No.1486 of 2007, namely, Laiq Ram after being disengaged from service in November, 1989, raised a demand notice for referring the dispute to conciliation / labour court on 10.3.2005 i.e. more than 15 years after his disengagement. Labour­cum-Conciliation Officer, Shimla Zone, conducted various meetings to settle the issue but in vain. The Conciliation Officer thereafter sent a report under Section 12(4) of the Industrial Disputes Act, 1947 (herein­after referred to as ‘the Act’) to the Labour Commissioner who has rejected the petitioner’s prayer for referring the dispute to the Labour Court. The relevant portion of the order reads as follows:- “After careful examination of the above report and your demand notice, it is found that as per your application, you were disengaged in November, 1989. You have given the present demand notice on 10.3.2005 i.e. about 15 years after your disengagement meaning thereby that there was no dispute from November, 1989 to 10.3.2005. If there was no dispute for 15 years there can not be any dispute after this period, if there is no fresh cause of action which was not therein the present case. You have given the present demand notice on 10.3.2005 i.e. about 15 years after your disengagement meaning thereby that there was no dispute from November, 1989 to 10.3.2005. If there was no dispute for 15 years there can not be any dispute after this period, if there is no fresh cause of action which was not therein the present case. Therefore, in view of the judgment of Division Bench of Hon’ble High Court of HP in CWP No. 398/2001- titled MC Paonta Sahib vs. State of H.P. Nisar Ali etc., the dispute had faded away and now there is no justification of making reference to ld. Labour Court. Therefore, your demand notice is prima -facie, vexatious and frivolous. Accordingly, you are informed as per provisions of Section 12(5) of the Industrial Disputes Act, 1947 that your dispute under reference in view of above mentioned reasons is not being referred to the Hon’ble Labour Court of Himachal Pradesh for adjudication.” 4. Leaned counsel for the parties, who were either aggrieved by the non reference of the dispute under section 10 (1) of the ‘Act’ or being aggrieved by refusal of reference of the dispute in reference to Section 10 (1) of the ‘Act’, have endeavoured to make their submissions, on one side, whereas, the State Government has endeavoured to justify the respective decisions taken by the State authorities in each case respectively on the other side. 5. 5. In order to adjudicate properly the question referred beforeus, it is necessary to mention some relevant provisions of the ‘Act’ as follows:- “S. 2(g) “Employer” means:- (i)In relation to any industry carried on by or under the authority of any department of [the Central Government or a State Government,] the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) In relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; (gg) “Executive”, in relation to a trade union, means the body, by whatever name called, to which the management of the affairs of the trade union is entrusted;] (i) A person shall be deemed to be “independent” for the purpose of his appointment as the Chairman or other member of a Board, Court or Tribunal, if he is unconnected with the industrial dispute referred to such Board, Court or Tribunal or with any industry directly affected by such dispute: [Provided that no person shall cease to be independent by reason only of the fact that he is a shareholder of-an incorporated company which is connected with, or likely to be affected by, such industrial dispute; but in such a case, he shall disclose to the appropriate Government the nature and extent of the shares held by him in such company;] (j) “Industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen; S.2(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person;S.2(oo) “Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-(a)Voluntary retirement of the workman; or (b) Retirement of the workman on reaching the age of Superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) Termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (c) Termination of the service of a workman on the ground of continued ill-health;] S.2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-(i)who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii)who is employed in the police service or as an officer or other employee of a prison, or (iii)who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” S-2A Dismissal, etc. of an individual workman to be deemed to be an industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.” S-10. Referece of dispute 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, make the reference to a Labour Court under clause (c):] x x x x x [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 be 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 the Government to reefer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.] [(l A)xxx xxxxxxxxxxxxxxxxxxxxx xxxxxx (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 party, 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 it’s 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) Wherein 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 (1A) 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 a 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.] S-10A Voluntary reference of disputes to arbitration.- (1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour ...11S Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement. 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 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. (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 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 authorized 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.]” 6. [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.]” 6. Following submissions have been advanced on behalf of the aggrieved parties:- (i)Labour Commissioner for the State Government has no right to decide the merits of the dispute and is bound to make reference to the Labour Court; (ii)The role of Labour Commissioner for the State Government is totally an administrative in exercise of its power under Section 10(1) of the Act while forming an opinion as to whether in respect of claim / dispute the industrial dispute exists or is apprehended, as such, he has no jurisdiction and is precluded to decide the question of the stalement of claim or of dispute raised by the workman or aggrieved person. (iii)The question of delay, laches or stalement of a claim or dispute may be considered by the Labour Court / Industrial Tribunal while adjudicating the case on merits for granting the relief and not by the State Government. (iv) In reference to the judgment of this Court (Division Bench) in Sh.Bhaga Ram and another Versus H.P. State Electricity Board and another 2005 (2) SLJ 1251, the delay by itself is no ground to refuse to make a reference though it may be a good ground in moulding the relief if the workman succeeds in the petition. (v)Non-reference of case by the State Government on the ground of stalement / delay / laches of cause / claim / dispute even when industrial dispute exists or is apprehended, would be negation of the aims and objects of beneficent Labour Legislation or the ‘Act’. (vi)The scope of Section 10(1) of the Act is considered for reference by appropriate Government about the existence of or apprehension of industrial dispute after forming opinion in that regard but deciding the question of stalement of claim is neither the subject matter nor within the scope of exercise of power by the Government. 7. (vi)The scope of Section 10(1) of the Act is considered for reference by appropriate Government about the existence of or apprehension of industrial dispute after forming opinion in that regard but deciding the question of stalement of claim is neither the subject matter nor within the scope of exercise of power by the Government. 7. Before adjudicating and dealing the question, referred above, we have also to keep in consideration the following decisions:- (A) In CWP No.398 of 2001 [Municipal Council Paonta SahibVersus State of Himachal Pradesh and others] the workman on being terminated on 3.10.1988, however, vide his application dated June 13, 1999, moved after about 11 years for the reference to the Labour Court, which was challenged by the employer before this Court wherein it was observed that the dispute was a stale one and could not be the subject matter of reference under Section 10 of the ‘Act’, as the lapse of time has caused fading of the dispute and it could not be kept alive by the workman and hence, no industrial dispute existed or could be apprehended, therefore, order of reference was accordingly quashed. Similar views were taken by the Division Bench of this High Court in CWP No.287 of 2003 decided on 29.4.2003 (Ramesh Kumar and Another Versus State of HP), CWP No.884 of 2005 (Ishwar Dutt Versus State of HP & Others) decided on 11.11.2005. 8. This Court in its order dated 14.11.2007 while referring the above question has also noted the following decisions of Supreme Court:- (i)Bombay Union of Journalists and Others versus The State of Bombay and Another, AIR 1964 SC 1617; (ii)M/s Western India Match Co., Ltd. versus The Western India Match Co. Workers Union and others, 1970(1) SCC 225, (iii) Dhanbad Colliery Karamchari Sangh versus Union of India and others, 1991 Supp (2) SCC 10, (iv)Telco Convoy Drivers Mazdoor Sangh and another versus State of Bihar and others, AIR 1989 SC 1565, (v) M.P. Irrigation Karamchari Sangh versus State of M.P. and another, AIR 1985 SC 860, (vi) The Nedungadi Bank Ltd. Versus K.P.Madhavankutty and others, AIR 2000 SC 839 and (vii)Reserve Bank of India versus Gopinath Sharma and another, (2006) 6 SCC 221;(viii)Sapan Kumar Pandit versus UP State Electricity Board & others, (2001) 6 SCC 222. 9. 9. In sequence to their grievances, the petitioners or aggrieved parties or the appellants have submitted that the State Government cannot decide the merits of the case and is bound to make reference to the Labour Court, or Tribunal which alone has the jurisdiction to go into the merits of the case as well as to test the question of delay or stalement of cause / claim / dispute, for granting the relief and that too after hearing the parties. In order to strengthen their submissions, relia nce has been made on the following decisions: (i)M.P.Irrigation Karamchari Sangh versus State of M.P. & Another, AIR 1985 SC 860. (ii) Dhanbab olliery Karamchari Sangh Versus Union of India & Others, 1991 Supp (2) SCC 10. (iii) Telco Convoy Drivers Mazdoor Sangh & Another versus State of Bihar & Others, AIR 1989 SC 1565. (iv) Abad Diary Dudh Viteran Kendra Sanchalak Mandal & Abad Diary & Others, 1990 (6) F.L.R. 282 (2). (v)Gurumurthy Versus State of Karnataka, 1995(3) SLR 533 (Karnataka High Court).(vi)G.S. Sandhu Versus State of Punjab & Another, 1995(7) SLR 186 (Punjab & Haryana High Court). (vii)Hari Krishan (Shri) Versus The State of Haryana & Another, 1996(8) SLR 80 (Punjab & Haryana High Court). (viii)S.C. Parida Versus State of Haryana & Others, 1999(1) SLR 296 (Punjab & Haryana High Court). (ix) P. Mallesha Versus Union of India & Others, 1993(30) SLR 533 (Karnataka High Court). (x) Cheran Transport Employees, Union Kattor, Coimbatore Versus Government of Tamil Nadu & Another, 1999(60 SLR 579 (Madras High Court). (xi)A.P.S.S.R.T.C Versus The Presiding Officer, 1999(7) SLR 375 (Andhra Pradesh High Court). (xii)The Ambala Central Cooperative Bank Limited Versus State of Haryana, 2000(2) SLR 754 (Punjab & Haryana Court). (xiii) The Secretary (Policy) Regional Director Versus Food Corporation of India, 2000(5) SLR 728 Calcutta High Court. (xiv) Pale Ram versus State of Haryana & Others, 2000(8) SLR 750 (Punjab & Haryana High Court). (xv) Piara Singh versus State of Haryana & Others, 2001 (3) SLR 552 (Punjab & Haryana High Court). xxvi)Ramadhar Tiwari versus Union of India & Others, 2002 (8) SLR 681 (Madhya Pradesh High Court). 10. According to the writ petitioners and the appellants, following decisions of this Court also supports the case of the workman / workmen: (i)Deepa Ram versus State of H.P. & Others, 2005 Vol. xxvi)Ramadhar Tiwari versus Union of India & Others, 2002 (8) SLR 681 (Madhya Pradesh High Court). 10. According to the writ petitioners and the appellants, following decisions of this Court also supports the case of the workman / workmen: (i)Deepa Ram versus State of H.P. & Others, 2005 Vol. (1) LHLJ 248 {High Court (DB)} (ii)Ramesh Chand versus Union of India, CWP No.812 of 2000 {High Court (DB)} (iii)Divisional Manager versus Mohinder Kumar, CWP No.95 of 2000 (Decided by Hon’ble Single Judge) (iv) Yash Pal versus State of H.P. & Others, CWP 1548 of 2002 (Decided by Hon’ble Division Bench) 11. Following observations may be noted from the decisions referred in the order dated 14.11.2007 of this Court:- (A)In reference to the decision of Supreme Court in Bombay Union of Journalists and others Versus The State of Bombay and another, AIR 1964 SC 1617, the frivolous and belated claim cannot be referred by the appropriate government.(B)In M/s Western India Match Co. Ltd. versus The Western India Match Co. Workers Union and others, 1970(1) SCC 225, the Supreme Court has observed that the expression “at any time” in the context in which it was used under Section 10 (1) of the ‘Act’ only postulates that a reference can be made only if an industrial dispute exists or is apprehended. No reference is contemplated when an industrial dispute no longer exists or is apprehended. (C)In Nedungadi Bank Ltd Versus K.P. Madhavankutty& Others, AIR 2000 SC 839, the Supreme Court has observed that Section-10 of the ‘Act’ does not prescribe any time limit in making a reference, this does not mean that the power can be exercised at any time. (D)In Reserve Bank of India Versus Gopinath Sharma & another (2006) 6 SCC 221, the Supreme Court has observed that a dispute which is stale should not be made a subject matter of the reference under the ‘Act’. 12. The State Government strongly relying upon the decision of this court in CWP No.398 of 2001 (Municipal Council Paonta Sahib Versus State of Himachal Pradesh), in CWP No. 287 of 2003 (titled Ramesh Kumar and Another versus State of HP), and in reference to the decision of Supreme Court in M/s Western India Match Co. 12. The State Government strongly relying upon the decision of this court in CWP No.398 of 2001 (Municipal Council Paonta Sahib Versus State of Himachal Pradesh), in CWP No. 287 of 2003 (titled Ramesh Kumar and Another versus State of HP), and in reference to the decision of Supreme Court in M/s Western India Match Co. Ltd. (supra), Nedungadi Bank Ltd. (supra), Reserve Bank of India (supra) has submitted that while exercising powers under section 10(1) of the ‘Act’ the State Government is not precluded from deciding the question as to whether claim by a workman is stale or not? 13. To deal with the present question, referred above, it is necessary to refer a few important paragraphs the following decisions:- (A)In Prem Kakar Versus State of Haryana and Another (1976) 3 SCC 433, Hon’ble Supreme Court has observed that the order of State Government acting under section 10(1) read with section 12(5) of the ‘Act’ is an administrative order and not a judicial or a quasi-judicial one and if it appears from the reasons given that the Government took into account irrelevant or foreign consideration, the court may in a given case interfere such decision. (B)In Sapan Kumar Pandit (supra), the Supreme Court has held that limitation period for making reference under section 4-K of U.P. Industrial Dispute Act, 1947 is a co-extensive with the existence of dispute and the opinion as to the existence of dispute has to be formed by the State Government alone and none else and once an opinion regarding existence of dispute has been formed by the State Government in the facts and circumstances, then the presumption would be that the dispute remain alive and the reference of the question of legality and propriety of termination of service even if made after 15 long years of termination was held sustainable. The relevant paragraphs of Sapan Kumar Pandit (supra) are quoted below: “8. The above section is almost in tune with Section 10 of the Industrial Disputes 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 rekindled by making a reference of it to adjudication? 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 rekindled 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, complimentary 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 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 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 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. The section indicates that if in 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. 10.In considering the factual position whether the dispute did exist on the date of reference the Government could take into account factors, inter alia, such as the subsistence of conciliation proceedings. It is of no consequence that conciliation proceedings were commenced after a long period. But such conciliation proceedings are evidence of the existence of the industrial dispute. It is an admitted fact that on the date of reference in this case the conciliation proceedings were not concluded. If so, it cannot be said that the dispute did not exist on that day. Xxxxxxxxxxxxxxx 13. Learned counsel for the Board invited our attention to a recent decision of a two Judge Bench of this Court in Nedungadi Bank Ltd. v. K. P. Madhavankutty (2000) 2 SCC 455: No doubt in the said decision it is said that the power of the Government under S.10 of the I.D. Act cannot be exercised at any point of time or for reviving the matters which have already been settled although law does not prescribe any time limit. The crux of the observations in the said decision is the following (SCC P 460, Para-6):- “A dispute which is stale could not be the subject-matter of reference under S.10 of the I. D. Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case.” 14. It is useful to refer to a three-Judge Bench decision of this Court as it related to the scope of the very same provision i.e. Section 4-K of the U.P. Act. In M/s. Western India Watch Co. Ltd. v. Western India Watch Co. Workers Union, AIR 1970 SC 1205: learned Judges made the following observations (SCC P 231, Para 8) : “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. 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 adjourned 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. “ 15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody 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 galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government has chosen to refer the dispute for adjudication under S.4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.” 14.The three Judges’ Bench of Supreme Court, in Inder Singh & Sons Ltd. versus Their Workmen, 1961(2) LLJ 89, has held that it is true that laws of limitation which might bar any civil court from giving remedy in respect of lawful rights are not and should not be applied by the Industrial Tribunals. On the other hand, it is a well accepted principle of industrial adjudication that over stale claims should not generally be encouraged or allowed, unless there is a satisfactory explanation for the delay. Apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect this is likely to have on the employer’s financial arrangements. Whether a claim has become too stale or not will depend on the circumstances of each case. While there is no absolute proposition of law that in no case relief could be granted for a period prior to the demand, the industrial tribunal ought to pay particular attention to the date on which the demand was first made. Taking into account the date of demand in the instant case along with the other circumstances, it was held fair to grant the reliefs with effect from January, 1963. 15. The three Judges’ Bench of Supreme Court in The Bombay Gas Co. Taking into account the date of demand in the instant case along with the other circumstances, it was held fair to grant the reliefs with effect from January, 1963. 15. The three Judges’ Bench of Supreme Court in The Bombay Gas Co. Ltd. Versus Gopal Bhiva & Others, AIR 1964 SC 752, has held that when the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on the ground of fairness and justice.The relevant observations are extracted as below:- “The proceedings contemplated by S. 33C(2) are in many cases, analogous to execution proceedings and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure, the Labour Court under S. 33C(2) would be competent to interpret the award on which the claim is based and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity, the executing court can refuse to execute it. The same principle would apply to proceedings taken under S. 33C(2) and the jurisdiction of the Labour Court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under S. 10(1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outside the terms of reference and deal with matters not included in the reference, subject of course, to incidental matters which fall within their jurisdiction. Therefore, on principle Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents’ claim is based is without jurisdiction. (Para-7) .... ...Though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S. 33C(2). (Para-7) .... ...Though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S. 33C(2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under S. 33C (2). It may have been thought that the employees who are entitled to take the benefit of S. 33C (2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course it is kept alive by taking steps in aid of execution from time to time as required by Article 182 of the Limitation Act; so that the test of one year or six months’ limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of S. 33C (2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation... ...” (Para-13) “... ...It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under Section 33C (2) of the Act would not be justified. ...” (Para-13) “... ...It is well settled that Art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under Section 33C (2) of the Act would not be justified. As early as 1883, the Bombay High Court had held in Bai Manekbai versus Manekji Kavasji, ILR 7 Bom 213 that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta versus Official Liquidators Dehra Dun, Musoorie Electric Tramway Co. Ltd., 60 Ind App 13 at p.20: (AIR 1933 PC 63 at P.64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. versus Jawhar Mills Ltd., 1953 SCR 351 at P.371: (AIR 1953 SC 98 at p.104) to suggest that the amendment of Arts. 158 and 178 ipso facto altered the meaning which had been attached to the words in Art. 181 by judicial decisions, but this attempt failed because this Court held “that the long catena of decisions under Art. 181 may well be said to have, as sit were, added the words “under the Code” in the first column of that Article.” Therefore, it is not possible to accede to the argument that the limitation prescribed by Art. 181 can be invoked in dealing with applications under S.33C (2) of the Act.” (Para-14) It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. ....” (Para-15) Further the limitation prescribed under Article 181 of the Limitation Act cannot be invoked in dealing with applications under Section 33C (2) of the Industrial Disputes Act as the provisions of the said article are interpreted to govern the applications preferred under the Code of Civil Procedure only.” 16. In Deepa Ram Versus State of HP and others, Latest HLJ 2005(HP) (DB) 248 (Para-9), on the question of declining in making reference of dispute by the appropriate government on the ground of inordinate delay in raising the demand, this Court, in Paragraph-9, has observed as below:- “In this behalf, it has to be noticed as to under what circumstances the Act was enacted and what were the objectives sought to be achieved by its legislation. It cannot be disputed that the Act was brought on the statute book with object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. It is a piece of legislation providing and regulating the service conditions of the workers. The object of the Act is to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country in its turn, helps to improve the conditions of labour (Hindustan Antibiotics Ltd. Versus The Workman), AIR 1967 948. The Act is intended not only to make provision for investigation and settlement of industrial disputes but also to serve industrial peace so that it may result in more production and improve the national economy. In the present socio­political economic system, it is intended to achieve co-operation between the capital and labour which has been deemed to be essential for maintenance of increased production and industrial peace. In the present socio­political economic system, it is intended to achieve co-operation between the capital and labour which has been deemed to be essential for maintenance of increased production and industrial peace. The Act provided to ensure fair terms to workman and to prevent disputes between employer and the employees so that the large interests of the public may not suffer. The provisions of the Act have to be interpreted in a manner which advances the object of the Legislature contemplated in the statement of objects and reasons. While interpreting different provisions of the Act, attempt should be made to avoid industrial unrest secure industrial peace and to provide machinery to secure the end. Conciliation is the most important and desirable way to secure that end. In dealing with industrial disputes, the Courts have always, emphasized doctrine of social justice, which is founded on basic ideal of socio-economic equality as enshrined in the Preamble of our Constitution. While construing the provisions of the Act, the Courts have to give them a construction which should help in achieving the object of the Act.” 17.This Court (DB), in Deepa Ram’s case (supra), has further observed as below:- “11. In Ms Western India Watch Co; Ltd Vs. The Western India Watch Co. Workers Union and others (1970) 1 SCC 225, a three Judges’ Bench while dealing with the effect of lapse of time in making the reference as also what is meant by “at any time” under the U.P. Industrial Disputes Act, negatived the plea of the management that claim was belated and could not have been referred to. 12. In Ajaib Singh Vs. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd and another (1999) 6 SCC 82, this a question was directly considered by the Hon’ble Supreme Court and what was observed and is relevant for the purpose of the present case, is extracted here-in-below:- “4.It is not in dispute that the service of the workman was terminated on 16.7.1974 and he had issued the notice of demand only on 8.12.1981. It is also not disputed that no plea regarding delay appears to have been taken by the management before the Labour Court it is also acknowledged that Article 137 of the Limitation Act has not been specifically made applicable to the proceedings under the Act seeking reference of industrial disputes to the Labour Court. It is also not disputed that no plea regarding delay appears to have been taken by the management before the Labour Court it is also acknowledged that Article 137 of the Limitation Act has not been specifically made applicable to the proceedings under the Act seeking reference of industrial disputes to the Labour Court. This Court, in no case, has so far held that either Article 137 of the Limitation Act or the principle incorporated therein is applicable to the proceedings under the Act.” 18.The Division Bench of Hon’ble Supreme Court in Telco Convoy Drivers Mazdoor Sangh & Another Versus State of Bihar & Others, AIR 1989 SC 1565, has observed that reference of industrial dispute under section 10(1) of the ‘Act’ is an administrative function of the appropriate government and in performing this administrative function, the government cannot delve into the merits of the dispute and determine the lis itself. 19. In Manager (now Regional Director, RBI Versus Gopinath Sharma & Another, AIR 2006 SC 2614, Hon’ble Supreme Court has observed as under: “20. Employers in relation to the Management of Sudamdih Colliery of M/s. Bharat Coking Coal Ltd. V. Their Workman represented by Rashtriya Colliery Mazdoor Sangh, JT 2006 (1) SC 411: This case, in turn, refers to the judgments in Nedungadi Bank Ltd. v. K.P. Madhavankutty & Ors., JT 2000 (1) SC 388 and S.M. Nilajkar& Ors. Vs. Telcom District Manger, Karnataka, JT 2003 (3) SC 436. This Court held that even though there is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when dispute relates to discharge of workmen. This Court has held that a delay of four years in raising the dispute after even re-employment of most of the old workmen was held to be fatal. In Nedungadi Bank Ltd’s case (supra) this Court held a delay of seven years to be fatal and disentitled the workmen to any relief. Xxxxxxxxxxxx 25. Regional Manager, SBI Vs. Rakesh Kumar Tewari, JT 2006(1) SC 252 (Ruma Pal & Dr. AR. Lakshmanan, JJ) In the above case, there was no pleading that there is violation of Section 25G of the I.D. Act. Xxxxxxxxxxxx 25. Regional Manager, SBI Vs. Rakesh Kumar Tewari, JT 2006(1) SC 252 (Ruma Pal & Dr. AR. Lakshmanan, JJ) In the above case, there was no pleading that there is violation of Section 25G of the I.D. Act. Respondent No.1 raised no allegation of violation of Section 25G of the I.D. Act in his statement of claim before the Tribunal. This judgment also refers to the judgment in Regional Manager, State Bank of India vs. Raja Ram, (2004) 8 SCC 164, where this Court held: ‘’before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. Besides, it needs to be emphasized that for the practice to amount to unfair labour practice it must be found that the workmen had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent’s case and the Labour Court erred in coming to the conclusion that the respondent was in the circumstances, likely to acquire the status of a permanent employee.” 20.Hon’ble Supreme Court (DB) in Haryana Land Reclamation and Development Corporation Ltd. Versus Nirmal Kumar (2008) 2 SCC 366 has the occasion to consider its earlier decision in Nedungadi Bank Ltd. (supra) and held that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. 21. 21. Hon’ble Supreme Court (DB) in Karan Singh Versus Executive Engineer, Haryana State Marketing Board, (2007) 14 SCC 291, in reference to section 10(4) and 25-F of the Industrial Disputes Act, 1947, while dealing the reference of a stale case has observed that jurisdiction of industrial tribunal in dealing with the dispute referred by the appropriate government is limited to the points mentioned in section 10(4) of the ‘Act’, where the verdict of Industrial Tribunal dismissing the reference on the ground of delay despite holding that the order of termination is violative of section 25-F of the ‘Act’ has been upheld by the High Court, in such case Supreme Court has observed that the Tribunal has no authority to invalidate the reference, particularly when it has found that the order of termination violates Section 25-F of the Industrial Disputes Act. The Supreme Court has further observed in Karan Singh (supra), if the employer says that the workman has made a stale claim then the employer must challenge the reference by way of writ petition and say that since the claim is belated, there was no industrial dispute. The Industrial Tribunal cannot strike down the reference on the ground of its being stale or delay. 22. Hon’ble Supreme Court (three Judges) in M.P. Irrigation Karamchari Sangh Versus State of M.P. & Another, AIR 1985 SC 860, has observed as under:- “5. We have considered the rival contentions raised before us. The High Court apparently has relied upon the following passage in Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617: “.... But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10 (1) read with Section 12(5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not.” We find that the approach made by the High Court was wrong and the reliance on the above passage on the facts of this case, is misplaced and unsupportable. This Court had made it clear in the same Judgment in the sentence preceding the passage quoted above that it was the province of the Industrial Tribunal to decide the disputed questions of fact. “Similarly, on disputed questions of fact, the appropriate Government. cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal “ Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. S. 10 permits appropriate Government to determine whether dispute ‘exists or is apprehended’ and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2), adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely the Appropriate Government. In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand. 6. Same is the case with the conclusion arrived at by the High Court accepting the stand of the State Government that the employees were not entitled to the Chambal allowance as the same was included in the consolidated pay. This question, in fact, relates to the conditions of service of the employees. What exactly are the conditions of service of the employees and in what manner their conditions of service could be improved are matters which are the special preserve of the appropriate Tribunals to be decided in adjudicatory processes and are not ones to be decided by the Government on a prima facie examination of the demand. This demand again can never be said to be either perverse or frivolous. 7.There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render S. 10 and S. 12(5) of the Industrial Disputes Act nugatory. 8.We have no hesitation to hold that in this case, the Government had exceeded its jurisdiction in refusing to refer the dispute to the Tribunal by making its own assessment unilaterally of the reasonableness of the demands on merits. The High Court erred in accepting the plea of the Government that refusal to refer the demands in this case was justified. The demands raised in this case have necessarily to be decided by the appropriate Tribunal on merits.” 23. The Supreme Court in Sarva Shramik Sangh Versus Indian Oil Corporation Limited and others, (2009) 11 SCC 609, has observed as under: “37. The demands raised in this case have necessarily to be decided by the appropriate Tribunal on merits.” 23. The Supreme Court in Sarva Shramik Sangh Versus Indian Oil Corporation Limited and others, (2009) 11 SCC 609, has observed as under: “37. Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate Government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate Government examining the merits of the dispute and prejudging/ adjudicating /determining the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the Failure Report of the Conciliation Officer or is not supported by any reason. 38. This case is squarely covered by the decisions in Ram Avtar Sharma and Telco Convoy Drivers Mazdoor Sangh, (1989) 3 SCC 271. The State (sic Central) Government has examined the merits of the dispute and has refused to make the reference on the ground that the workers were not the employees of IOC, when the very dispute that required reference was whether the workers should be considered as the employees of IOC.39. In view of the above, we allow this appeal and direct the Central Government to re-consider the matter in the light of the observations above and take an appropriate decision on the request for reference of the dispute to the industrial adjudicator.” 24. The Supreme Court in Gurmail Singh Versus Principal, Government College of Education & others, (2000) 9 SCC 496, has observed as under: “3 As laid down by this court in the case of Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., (1996) 6 SCC 82, if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High court as well as the Labour court are set aside. The termination of the appellant on 30/9/1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High court as well as the Labour court are set aside. The termination of the appellant on 30/9/1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. But so far as the back wages are concerned, he will not be entitled to any back wages from 30/9/1981 till 27/2/1989 as he had not raised any dispute during that time. Thereafter from 1/3/1 989 till the date of reinstatement of the present appellant, on the facts and circumstances of the case, the respondents are directed to pay 50 per cent of the back wages towards full and final satisfaction of appellant’s claim, regarding back wages. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs.” 25. In State of Punjab Verses Anil Kumar, (2007) 9 SCC 663, where the worker engaged on daily wage basis, discontinued 13 long years back claimed for regularization and raised industrial dispute under Section 10(1) of the Act, in that case, Hon’ble Supreme Court (DB) observed that there is no infirmity in the order passed by the Labour Court as affirmed by the High Court so far as entitlement of the respondent workman to be reinstated, however, at the same time belated approach cannot be ignored and the direction regarding payment of back wages was required to be set aside. The Supreme Court in Krishi Utpadan Mandi Samity, Manglor Versus Pahal Singh, (2007) 12 SCC 193, has observed that Labour court is under an obligation to consider as to whether any relief, if at all, could be granted in favour of the workman in view of the fact that the industrial dispute had been raised after 18 years whereas in Tridip Kumar Dingal & Others Versus State of West Bengal & Others, (2009) 1 SCC 768, observed that in the facts and circumstances, Court may refuse to exercise its discretion on the ground of delay and laches. 26. There is no provision of limitation prescribed for making reference in respect of dispute under Section 10(1) of the ‘Act’. 26. There is no provision of limitation prescribed for making reference in respect of dispute under Section 10(1) of the ‘Act’. The laws of limitation might bar any civil Court from giving remedy in respect of lawful rights because the legislature has prescribed the provisions of limitation therein, but, it is not open to the Government or ‘Boards’ or ‘Tribunals’ or Courts, to introduce or prescribe on its own, any such limitation, while interpreting any Section or provision of the ‘Act’ even on the ground of fairness or justice. In view of the decision of three Judges’ Bench of Hon’ble Supreme Court in Inder Singh & Sons Ltd. (supra), also whether a claim has become too stale or not will depend on the circumstances of each case. Non-prescribing of any provision of limitation in Industrial Disputes Act, more specifically, under Section 10(1) of the ‘Act’, could not, therefore, be taken as an accidental omission. It would be legitimate to infer that legislature has deliberately not provided the provisions of limitation for making reference by the appropriate Government in exercise of powers under Section 10(1) of the Act. In view of the decision of three Judges’ Bench of Hon’ble Supreme Court in Bombay Gas Co. Ltd. (supra), when the legislature has made no provision for deciding the question of limitation or stalement in Section 10(1) of the Act, it would not be open to the appropriate Government to introduce a fresh question and make an endeavour to decide the same. In the light of observations made by the three Judges’ Bench of Hon’ble Supreme Court in Bombay Gas Co. Ltd. (supra), the scope of Section 10(1) of the Act would be limited and the Tribunals shall only be entitled to deal with the disputes referred to them but they cannot travel outside the terms of reference and deal with the matters not included in the reference, even the matters incidental thereto even the stalement as a dispute is not to be adjudicated upon under Section 10(1) of the Act, as such, the Tribunals have no scope of deciding the question of stalement. Making of the reference of Industrial disputes under Section 10(1) of the Act is an administrative function of the appropriate Government. Making of the reference of Industrial disputes under Section 10(1) of the Act is an administrative function of the appropriate Government. Such function of the appropriate Government is neither judicial nor quasi judicial, in view of the decision of the Hon’ble Supreme Court in Prem Kakar’s case (supra) as well as in Telco Convoy Drivers Mazdoor Sangh (supra), as such, the appropriate Government has to take into consideration the following aspects in forming its opinion before making reference:-i)Whether there exists Industrial dispute or whether the Industrial dispute is apprehended? ii)If appropriate Government, on scrutiny of materials on record, evidences, statements or anything relevant to the claim of employee or workman, forms an opinion that the industrial dispute exists or is apprehended, then the appropriate Government at any time may refer the dispute by order in writing to the Board or to a Court or to Labour Court or to an Industrial Tribunal? 27. An appropriate Government or any authority for and on behalf of the appropriate Government has only to exercise its administrative power within the scope of Section 10(1) of the ‘Act’. It may be possible that the claimant / employee / workman might have approached for making reference after a long lapse of time or by inordinate delay and such long lapse of time in approaching for reference on the part of the claimant / employee / workman might have destroyed the materials on record or existence of any evidence or substantial material, therefore, in absence of which the appropriate Government may come across difficulties in forming an opinion or the appropriate government has failed to form any opinion in such circumstances. As such, the delay, lapse or stalement on the part of claimant in approaching for reference has become an impediment or cause or notable factor making the appropriate Government unsuccessful in forming an opinion correctly. There may be instances where the relevant records might have been misplaced, burnt, destroyed or lost. As such, the delay, lapse or stalement on the part of claimant in approaching for reference has become an impediment or cause or notable factor making the appropriate Government unsuccessful in forming an opinion correctly. There may be instances where the relevant records might have been misplaced, burnt, destroyed or lost. It may also be possible that the relevant person(s) who could be or was / were material witness – in formation of opinion about the (a) existence of industrial dispute or (b) to know whether industrial dispute is apprehended, has / have died or is / are not available, therefore, in absence of relevant material or evidence, coupled with delay, lapse of time or stalement may be a prominent ingredient making it difficult to form an opinion by the appropriate Government in making reference about the existence of industrial dispute. 28. The ‘delay’ may be Inordinate or of long lapse of time, however, stalement is not an ultimate object to be assessed or determined, whereas, such aspect in endeavour of analysis or inquest might be a factor or an element or component, coming across as impediment in formation of an opinion, as such, the appropriate Government is to overcome such ‘stalement’ or ‘delay’ regarding claim and the appropriate Government by any means, in all possible circumstances, even after long lapse of time if is able to form an opinion that (a) industrial dispute exists or (b) industrial dispute is apprehended, then without any stipulation of time i.e. at any time, would be under the statutory obligation to refer the dispute to the Boards, Courts or Tribunals. The appropriate Government in exercise of its power under Section 10(1) of the ‘Act’ is neither expected nor is called upon to decide it as to whether the claim is stale or delay? Therefore, the entire endeavour of the appropriate Government should be to form an opinion and nothing beyond that. Once the opinion is formed then declining in making of reference of dispute by the Government on the ground of delay or stalement is not its choice. 29. What is ‘industrial dispute’ is to be understood in the context of the definition as provided under Section 2(k) of the ‘Act’. This definition is very exhaustive, namely, covering dispute or difference between - (i) employers and employees or (ii) employer and workman or (iii) workman and workman. 29. What is ‘industrial dispute’ is to be understood in the context of the definition as provided under Section 2(k) of the ‘Act’. This definition is very exhaustive, namely, covering dispute or difference between - (i) employers and employees or (ii) employer and workman or (iii) workman and workman. The disputes, indicated therein, connected with the employment or non-employment or are relatable to the terms of employment or with the conditions of labour or of any person are also industrial dispute. The existence or the apprehension of disputes in respect of all such aspects is, therefore, only to be investigated or inquired into for forming the opinion by the appropriate Government. 30. In Sapan Kumar Pandit (supra), the Hon’ble Supreme Court has very categorically observed that the Government’s power to refer an industrial dispute for adjudication has thus one limitation of time in a sense that it can be done only so long as the industrial dispute exists. The period envisaged by the enduring expression “at any time” terminates with the eclipse of the industrial dispute. In view of the observations of the Hon’ble Supreme Court in Sapan Kumar Pandit (supra), if the dispute existed on the day when the reference was made by the Government, it would be futile exercise to ascertain after lapse of 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. In Sapan Kumar’s case (supra), the Hon’ble Supreme Court had also considered its earlier decision of two Judges on Nedugadi Bank Ltd. (supra) as well as its earlier three Judges’ Bench decision of M/s.Western India Watch Co. Ltd. (supra) and has appreciated the observations of later one that no reference is contemplated under Section 10(1) of the Act when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended. When the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In view of the observations of Sapan Kumar’s case (supra), the words and language of Section 10(1) of the Act indicate that if in the opinion of the Government, the dispute existed, then the Government would make reference otherwise not. 31. In view of the observations of Sapan Kumar’s case (supra), the words and language of Section 10(1) of the Act indicate that if in the opinion of the Government, the dispute existed, then the Government would make reference otherwise not. 31. Once the Government has made the reference, the question of delay or stalement in making reference cannot be inquired into even by the Boards, Tribunals or Labour Court as it does not affect the validity of reference. Stalement or inordinate delay in making a reference per-se is not an adequate ground for declining relief, particularly where the dismissal or retrenchment is illegal amounting to an Industrial dispute or unfair labour practice or when ingredients of Industrial dispute as reflected in Section 2(k) of the ‘Act’ is attracted and the opinion of appropriate Government has been formed accordingly. Since there is no limitation prescribed under the ‘Act’, therefore, the words “at any time” indicate that there is no bar of limitation and the dispute, even though very old, can be referred by the appropriate Government for adjudication. It would not, however, be consistent with the aims and objects of the ‘Act’ if the disputes raised by certain employee, or by anyone on their behalf, are allowed to linger on continuously and indefinitely in a fluid and indecisive state, as such, endeavour should be made as far as possible to make reference under Section 10(1) of the Act expeditiously, however, there is no bar that a dispute cannot be referred for adjudication even after many years of workmen’s termination. The expression “at any time” does not mean at one time or only once. The words only emphasize that there are no restriction on the power of the appropriate Government to refer an industrial dispute provided that in the opinion of the Government, such dispute exists or is apprehended, however, the Board or the Labour Court or the Industrial Tribunal, may possibly be slow to award desired relief on over-stale claim or may mould the relief in facts and circumstances of the case. 32. The purpose and aims of the statute has to be looked into while making interpretation of the provisions of Section of Act in question. In Colour-Chem. 32. The purpose and aims of the statute has to be looked into while making interpretation of the provisions of Section of Act in question. In Colour-Chem. Ltd. versus A.L. Alaspurkar & Others, (1998) 3 SCC 192, the Court held that the provisions of the welfare legislation should be construed in a way to give benefit to the persons for whose benefit the Rules have been enacted and the Court must examine the policy and object of the Act and must advance the cause of enactment. In Durga Oil Company & Anr. versus State of U.P & Ors., (1998) 6 SCC 299, the Supreme Court held that while interpreting the provisions of a Statute or Rules, the purposive interpretation should always be borne in mind. Similar view has been taken by the Supreme Court in Forest Range Officer & Ors. versus P.Mohammad Ali & Ors., (1993) Suppl 3 SCC 627. In The Municipal Corporation of Greater Bombay & Ors. versus The Indian Oil Corporation Ltd., AIR 1991 SC 686, the Hon’ble Supreme Court has observed as under:- “The language of a statutory provision is not static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in any country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. .... ....” In S.P. Jain versus Krishna Mohan Gupta, (1987) 1 SCC 191, the Supreme Court had held that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of the Act. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of the Act. The legislative futility is to be ruled-out so long as interpretative possibility permits.In Daily Partap versus Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh & Union Territory, Chandigarh, (1998) 8 SCC 90, the Supreme Court held that the Court must always keep in view the beneficial and social welfare aspect of the statute. Same view has been taken by the Supreme Court in Dinkar Anna Patil & Another versus State of Maharashtra & Ors., (1999) 1 SCC 354; Regional Provident Fund Commissioner Versus S.D. College, Hoshiarpur & Ors., (1997) 1SCC 241; and Bharat Petroleum Corporation Ltd. Versus Maharashtra General Kamgar Union & Ors., (1999) 1 SCC 626. In Vaijanath & Ors. Versus Guramma & Anr., (1999) 1 SCC 292, the Supreme Court held that remedial Act should be given beneficial interpretation. However, in Employees’ State Insurance Corporation Versus M.M. Suri and Associates (P) Ltd., (1998) 8 SCC 111, the Supreme Court held that even if the statute is beneficial, the Courts should not stretch it too far. The Supreme Court relied upon its earlier judgments in Regional Director, Employee’ State Insurance Corporation, Trichur versus Ramanuja Match Industries, AIR 1985 SC 278 : 1985 (2) SCR 119: (1985) 1 218, wherein the Court observed as under:- “Counsel for the appellant emphasized on the feature that the statute is a beneficial one and the Court should not interpret a provision occurring therein in such a way that the benefit would be withheld from employees. We do not doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own, there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme. ....” Court is supposed to give strict adherence to the provisions of the scheme and there is no scope of enlargement of the scheme as it would amount to legislation. The purpose of doctrine of purposive construction may be taken recourse to for giving effect in full to the statutory provisions. (vide Bharat Petroleum Corporation Ltd. Versus Maddula Ratnavalli & Ors., (2007) 6 SCC 81; Oriental Insurance Co. The purpose of doctrine of purposive construction may be taken recourse to for giving effect in full to the statutory provisions. (vide Bharat Petroleum Corporation Ltd. Versus Maddula Ratnavalli & Ors., (2007) 6 SCC 81; Oriental Insurance Co. Ltd. Versus Brij Mohan & Ors., AIR 2007 SC 1971; and New India Assurance Co. Ltd. Versus Nusli Neville Wadia & Anr., (2008) 3 SCC 279). Such an interpretation is necessary when the legislative policy is reflected in a statutory provision and Court is called upon to determine as to whether same has been complied with or not. (vide Mahalakshmi Sugar Mills Co. Ltd. & Anr. Versus Union of India & Ors., 2008 AIR SCW 8078). 33. It may be possible that after a lapse of time, the industrial dispute might not exist or may not be apprehended. Therefore, there cannot be any hard and fast rule or universal parameter regarding the time for making reference as it depends in the facts and circumstances of each case. Rejection of a dispute by the Government, in making reference for adjudication on the ground of statement or delay would, therefore, not be justified. 34. ‘Limitation’ could be measured in terms of days from a specified date, if prescribed in a statute or an ‘Act’. If the limitation to avail remedy is prescribed in the statute or Act is of 30 days or 60 days or 90 days, the same shall have to be calculated from a cut off date, may be from the date of impugned judgment / order to be appealed against, till availing of the remedy thereof, subject to the condonation of delay, permissible under law at the discretion of the Courts or subject to the satisfaction of the Courts regarding the explanation of delay. If the statute or ‘Act’ provides a limitation period of 60 days or 90 days for availing the remedy in reference to judgment / decision / order, then the time taken beyond such prescribed limitation period may be termed as ‘delay’. In a particular case, there may be a delay of one day or many days, months or years, but when limitation period is not prescribed at all then what would be the period or span of time which could be termed as ‘delay’ and how that period would be assessed or measured by terming the same as ‘delay’? The delay or stalement is a relative term. The delay or stalement is a relative term. No formula of universal application or any universal criteria or parameter, as such, could be specified in facts and circumstances of a case except to say term ‘delay’ as reasonable or inordinate or long lapse of time naming such delay to be quantified in terms of days or time. The Hon’ble Supreme Court (DB) in Haryana Land Reclamation & Development Corporation Ltd. (supra), has very categorically observed that no formula of universal application can be laid down regarding assessment of delay in seeking the reference. 35. In facts and circumstances of a case, delay of 5 or 10 or 15 years or for more years, might not be fatal for making reference regarding a claim when industrial dispute is found to be existing or apprehending. There may be cases or instances where there is no delay at all even then appropriate government might not refer for lack of existence or apprehension of industrial dispute. Therefore, it is not the quantum of delay or stalement which is essential or is of vital importance, rather the existence or apprehension of industrial dispute. It is true, the delay may defeat or destroy the cause / reason for existence of industrial dispute. However, when language and words of Section 10(1) of the ‘Act’ very clearly indicate that appropriate Government is to only form opinion whether the (i) industrial dispute exists or is apprehended, as such, the sole purpose and endeavour is to form an opinion about the above two ingredients / aspects. If the legislature was so particular to shut the door regarding making referring about the dispute in the matter of that claimant / employee / workman, who approaches, by delay or by lapse of time, then the legislature could have expressly provided so in Section 10(1) of the ‘Act’. 36. The Hon’ble Supreme Court, in Sarva Shramik Sangh’s case (supra), has observed, so much so, by relegating the matter to the appropriate Government for re-consideration of the refusal of the reference, where (a) refusal was irrelevant, irrational or extraneous grounds (b) refusal of reference was result of examining the merits of the dispute prejudging / adjudicating / determining the dispute (c) refusal of reference was mala-fide, dishonest or actuated by malice and (d) if the refusal of reference had ignored the materials available in the report of the Conciliation Officer. Observations of Hon’ble Supreme Court in Sarva Shramik Sangh’s case (supra) is a guiding factor that the irrelevant factor has not be considered what to say of giving a decision on an issue i.e. stalement which has not been provided under Section 10(1) of the Act 37. A constitution Bench of Hon’ble Supreme Court in S.Narayana Swami Versus G.Panneerselwam & Ors., AIR 1972 SC 2284, considered the issue of interpretation of law where it is averred that there has been omission on the part of the Legislature while enacting the Statute. The Court held that “it could not possibly be said that the question to be dealt with was not known to the legislators, therefore, there can be no presumption that the framers of the Statute were not knowing the subject they had to deal with the gravity of the menace created by dowry and for which they failed to consider what should be the proper and adequate punishment. The Court further held that the Statute requires to be interpreted giving plain meaning of literal construction, and modification of words used in statutory provisions is not permissible. While deciding the said case, the Court placed reliance upon large number of judgments, particularly Hira Devi versus District Board, Shahjahanpur, AIR 1952 SC 362; Ram Ram Narain Medhi versus State of Bombay, AIR 1959 SC 459; British India General Insurance Co. Ltd. versus Captain Itbar Singh, AIR 1959 SC 1331; and R.G.Jacob versus Union of India, AIR 1963 SC 550). The reading of words into an Act is contrary to all rules of construction unless it is absolutely necessary to do so in view of the decision of Hon’ble Supreme Court in Great Offshore Ltd. versus Iranian Offshore Engg. & Construction Co., (2008) 14 SCC 240. In Phool Patti versus Ram Singh & Another, (2009) 13 SCC 22 (Paragraph-9), Hon’ble Supreme Court has observed that the Court cannot add words to a statute or change its language, particularly when on a plain reading meaning becomes clear. Similar observation was also made by the Hon’ble Supreme Court in Jyoti Harshad Mehta versus Custodian, (2009) 10 SCC 564, indicating that where meaning of words used in an Act is plain and clear, effect must be given thereto. Similar observation was also made by the Hon’ble Supreme Court in Jyoti Harshad Mehta versus Custodian, (2009) 10 SCC 564, indicating that where meaning of words used in an Act is plain and clear, effect must be given thereto. In Snehadeep Structures Private Limited versus Maharashtra Small-Scale Industries Development Corporation Limited, (2010) 3 SCC 34, Hon’ble Supreme Court has very categorically observed that an ambiguous word should be given an interpretation which advances object and purpose of legislation but a word of definite and clear meaning should be given that very meaning irrespective of its consequences. In Union of India versus Sankal Chand Himmatlal Sheth & Anr., AIR 1977 SC 2328, the Hon’ble Surpeme Court considered the same issue and held that unless provision is semantically ambiguous, it does not require any interpretation whatsoever and unless if a provision read literally is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make a particular provision purposeful. The Court placed reliance on its earlier judgments in M.Pantiah & Others versus Muddala Veeramallappa & Others, AIR 1961 SC 1107, wherein the Court had emphasized on literal interpretation and putting a complete embargo on the power of the Court to modify the meaning of the words, wherein the Court had placed reliance upon a judgment in Seaford Court Estates Ltd. Versus Asher, (1949) 2 All ER 155, wherein the Court held that “a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.” In P.K.Unni versus Nirmala Industries & Others, AIR 1990 SC 933, the Supreme Court has observed as under:- “The Court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. Assuming there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court cannot add words to a statute or read words in to it which are not there, especially when the literal reading produces an intelligible result. Assuming there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court cannot add words to a statute or read words in to it which are not there, especially when the literal reading produces an intelligible result. No case can be found to authorize any Court to alter a word so as to produce a casus omissus.” We cannot aid the legislature’s defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there. Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so, a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”(Emphasis added) In Union of India & Another Versus Deoki Nandan Aggarwal, AIR 1992 SC 96, the Hon’ble Supreme Court observed as under:- “It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature, the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.” In Union of India & Another Versus Hansoli Devi & Others, (2002) 7 SCC 273, the Hon’ble Supreme Court held as under:- “9. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.” In Union of India & Another Versus Hansoli Devi & Others, (2002) 7 SCC 273, the Hon’ble Supreme Court held as under:- “9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of a statute. The rule stated by Tindal, C.J. in Sussex Peerage case [8 (1844) 11 CI & Fin. 85], still holds the field. The aforesaid rule is to the effect: (ER p. 1057) ‘If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves along do, in such case, best declare the intention of the lawgiver.” It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness Versus John Hudson & Co. Ltd., (1955) 2 All ER 345, Lord Reid pointed out as to what is the meaning of “ambiguous” and held that “ A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable or having more than one meaning.” It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the Court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language “ (Emphasis added) Thus, it is not permissible to the Court to read the language in such a manner that it may amount to amendment of the Statute itself. It is well settled principle of interpretation that hardship or inconvenience cannot alter the meaning of the language employed by the legislature if such meaning is clear on the face of the Statute. (Vide Commissioner of Agricultural Income Tax Versus Keshab Chandra Mandal, AIR 1950 SC 265). If the language is plain and admits of only one meaning, it has to be given effect to even if it leads to hardship of possible injustice. (Vide D.D. Joshi Versus Union of India, AIR 1983 SC 420) In Bengal Immunity Company Ltd. Versus State of Bihar & Others, AIR 1955 SC 661, it was observed by the Constitution Bench of the Supreme Court that if there is any hardship, it is for the legislature to amend the law, but the Court cannot be called upon to discard the cardinal rule of interpretation for mitigating a hardship. If the language of an Act is sufficiently clear, the Court has to give effect to it, however, inequitable or unjust the result may be. If the language of an Act is sufficiently clear, the Court has to give effect to it, however, inequitable or unjust the result may be. As is said, “dura lex sed lex’ which means “the law is hard but it is the law.” Even if the statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plain and literal sense as that is the first principle of interpretation. In Mysore State Electricity Board Versus Bangalore Woolen, Cotton & Silk Mills Ltd. & Ors., AIR 1963 SC 1128, a Constitution Bench of the Hon’ble Supreme Court held that “inconvenience is not” a decisive factor in interpreting a statute. In The Martin Burn Ltd. Versus The Corporation of Calcutta, AIR 1966 SC 529, the Supreme Court, while dealing with the same issue, observed as under:- “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.” Similar view has been reiterated by the Supreme Court in The Commissioner of Income Tax, West Bengal I, Calcutta Versus M/s.Vegetables Products Ltd., AIR 1973 SC 927. Therefore, it is evident that hardship to an individual cannot be ground of not giving the effective and grammatical meaning to every word of the provision, if the language is unequivocal. The Court has to be alive of the fact that while interpreting the provisions of a Statute, it can neither add nor subtract a word. Legal maxim “A Verbis Legis Non Est Recedendum” means from the words of law, there must be no departure. The said maxim was applied by the Supreme Court in the Balasinor Nagrik Co-operative Bank Ltd. versus Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849, holding that a section is to be interpreted by reading all its part altogether and it is not permissible to omit any part thereof. In Nalinakhya Bysack versus Shyam Sunder Haldar & Ors., AIR 1953 SC 148, the Supreme Court has taken a similar view placing reliance on various judgments particularly Hansraj Gupta Versus Dehradun - Mussorie Electric Tramway Co. In Nalinakhya Bysack versus Shyam Sunder Haldar & Ors., AIR 1953 SC 148, the Supreme Court has taken a similar view placing reliance on various judgments particularly Hansraj Gupta Versus Dehradun - Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63 and Commissioner of Special Purpose of Income Tax Versus Pemsel, (1891) AC 531, wherein it has been held that the Court cannot proceed with the assumption that the legislature while enacting the Statute has committed mistake; the Court must proceed on the footing that the Legislature intended what it has said; even if there is some defect in the phraseology used by the legislature, the Court cannot add and amend or by construction, make up the deficiencies which are left in the Act.In Sri Ram Ram Narain Medhi versus State of Bombay, AIR 1959 SC 459, the Constitution Bench of the Supreme Court, while considering a similar issue, held as under:- “If the language of the enactment is clear and unambiguous, it would not be legitimate for the Courts to add any words thereto and evolve there from some sense which may be said to carry out the supposed intentions of the legislature. The intention of the legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the legislature.” In M.Penthiah’s case (supra), the Constitution Bench again reiterated a similar view. However, it was observed that the Court can only iron out the creases but it must not alter the material of which the ‘Act’ is woven, placing reliance upon the judgment in Seaford Court Estates Ltd. (supra). In S.P.Gupta & Ors. versus President of India & Ors., AIR 1982 SC 149, the issue was considered at length and it was held as under:- “271 (1) xxx xxxxxxxx (2)xxxxxxxxxxx (3)xxxxxxxxxxx (4)xxxxxxxxxxx (5)Where the scheme of a statute clearly shows that certain words or phrases were deliberately omitted by the legislature for a particular purpose or motive, it is not open to the Court to add those words either by conforming to the supposed intention of the legislature or because the insertion or the omission suits the ideology of the judges deciding the case. Such a course of action would amount not to interpretation but to interpolation of the statutory or constitutional provisions, as the case may be, and is against all the well established canons of interpretation of statutes. 272. The main reason behind the principles enunciated above is that the legislature must be presumed to be aware of expanding needs of the nation, the requirements of the people and above all, the dominant object which the legislation seeks to subserve. 273. Thus, where the language is plain and unambiguous the Court is not entitled to go behind the language so as to add or supply omissions and thus play the role of a political reformer or of a wise counsel to the legislature.” In P.K.Unni’s case (supra), the Supreme Court held that the Court, while interpreting the statutory provisions, cannot add words to a Statute or read words into it which are not there especially when the literal reading produces an intelligible result. While deciding the said case, reliance had been placed on the judgment in Crawford Versus Spooner, (1846) 6 Moore PC1. In Dadi Jagannadham versus Jammulu Ramulu & Ors., (2001) 7 SCC 71, the Constitution Bench of the Supreme Court considered the earlier judgments and concluded on the issue observing as under:- “The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”In view of the above, it becomes crystal clear that under the garb of interpreting the provision, the Court does not have a power to add or subtract a word as it would not amount to interpretation but legislation. The statute is not to be construed with certain notions of what the legislature might have expected to have said or what the legislature might have done. It was the duty of the legislature to have said or done. As the Courts have to administer the law as they find, it is not permissible for the Court to twist the clear language of the enactment to avoid the real or imaginary hardship in which it may result. Making any generous addition to the language of the Act would not be a construction of the statutory provision rather would be an amendment thereof. (Vide Royal Trust Company Versus Minister of Finance, AIR 1921 PC 184). The Court has to proceed on the footing that the legislature intended to what it has said and even if there is some defect in the phraseology etc., it is for others than the Court to remedy that defect. The Statute requires to be interpreted without doing any violence to the language used therein. In view of the above, it is not permissible for the Court to add or subtract any word from the Statute while interpreting, as it may amount to legislation which is not permissible for the Court. It is also settled legal proposition that neither the Court can legislate nor it can issue direction to the State Government to legislate a law in a particular manner. At the most, if the Court comes to the conclusion that a particular provision is ultra-vires or unconstitutional, it can simply struck down the same, or in a particular case, read down a particular law to meet a particular situation. But this case does not fall in that category. 38. Rules of interpretation require that construction, which carries on objectives of the Statute, protects interest of the party and keeps the remedy alive, should be preferred looking into the text and context of the Statute. It must be so as to further the ends of justice and not to frustrate the same. Construction given by the Court must promote the object of the Statute and serve the purpose, for which it had been enacted, and should not efface its very purpose. (Vide Reserve Bank of India Versus Peerless General Finance and Investment Co. It must be so as to further the ends of justice and not to frustrate the same. Construction given by the Court must promote the object of the Statute and serve the purpose, for which it had been enacted, and should not efface its very purpose. (Vide Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd., AIR 1987 SC 1023; N.K. Jain Versus C.K. Shah, AIR 1992 SC 1289; Meera Gupta Versus State of West Bengal & Ors., AIR 1992 SC 1567, Directorate of Enforcement Versus Deepak Mahajan, AIR 1994 SC 1775; Food Corporation of India Versus New Delhi Assurance Co. Ltd., AIR 1994 SC 1889; Hindustan Lever Ltd. Versus Ashok Vishnu Kate & Ors., (1995) 6 SCC 326; S.Gopal Reddy versus State of Andhra Pradesh, AIR 1996 SC 2184; Raipur Development Authority Versus Anupam Sahkari Griha Nirman Samiti & Ors., (2000) 4 SCC 357; Gautam Paul Versus Debi Rani Paul & Anr., (2000) 8 SCC 330; Tata Engineering & Locomotive Co. Ltd. Versus State of Bihar & Ors., (2000) 8 SCC 346; Gayatri Devi Pansari Versus State of Orissa, AIR 2000 SC 1531; Regional Provident Fund Commissioner Versus Shiv Kumar Joshi, AIR 2000 SC 331; M/s. Ambalal Sarabhai Enterprises Ltd. Versus M/s Amrit Lal & Co. and Anr., (2001) 8 SCC 347; Commissioner of Income Tax, Mumbai Versus Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633; and Joseph Joseph & Ors. Versus State of Kerala & Ors., (2002) 3 SCC 8). In Tinsukhia Electric Supply Co. Ltd. Versus State of Assam & Ors., AIR 1990 SC 123, the Supreme Court placed reliance upon the judgment in Whitney versus I.R.C., 1926 AC 37, wherein it had been observed as under:- “A statute is designed to be workable and the interpretation thereof by a Court should be to secure that object....” The Hon’ble Supreme Court has further held as under:- “The Courts strongly lean against any construction which tends to reduce a statute to a futility. The provision of the Statute must be so construed as to make it effective and operative“ Undoubtedly, legislation by judiciary is not permissible and the Court cannot read something which is not in the provision (Vide Suresh Lohiya Versus State of Maharastra & Anr., (1996) 10 SCC 397). But the text and context of the entire provisions must be looked into while interpreting any of the provision of the Statute. But the text and context of the entire provisions must be looked into while interpreting any of the provision of the Statute. The Court must look to the object which the Statute seeks to achieve while interpreting the provisions of the Act / Rules / Regulations. A purposive approach for interpreting the provision is necessary. In Pannalal Bansilal Pitti & Ors. Versus State of A.P. & Anr., (1996) 2 SCC 498, the Supreme Court observed that reading down the provisions of the Act is a settled principle of interpretation so as to sustain their constitutionality, as well as for effectuation of the purpose of the Statute. It is also settled principle of interpretation of law that any interpretation which leads to hardship and complication, should be avoided. In Administrator, Municipal Corporation, Bilaspur Versus Dattatrayadahankar & Anr., AIR 1992 SC 1846; and Govt. of Andhra Pradesh & Ors. Versus P.Venku Reddy, (2002) 7 SCC 631, the Supreme Court has held that “the mechanical approach to construction is altogether out of play with the modern positive approach. The modern positive, i.e., to effectuate the object and purpose of the Act.” 39. When any subject or aspect or issue or point is not provided or contemplated under Section 10(1) of Act, then how it could be adjudicated upon or is to be decided, e.g., delay or stalement herein, it means such issue or dispute or point or question is in dispute or is to adjudicated upon and the appropriate Government is called upon to give its verdict or decide such aspect in exercise of its administrative power, whereas, the appropriate Government under Section 10(1) of the Act is expected only to form the opinion and not to decide anyway, as to the existence of the industrial dispute or its apprehension. 40. If an employee or workman has made a claim after several months or one year or two years or five years or ten years or even at later stage than this, then in any case claim made ever after one day from the date of disengagement or commencement of the industrial dispute is also stale / delay unless made on the same day. No specific criteria or parameter could be prescribed to assess that the claim rose some day other than the date of cause / dispute or disengagement is stale. No specific criteria or parameter could be prescribed to assess that the claim rose some day other than the date of cause / dispute or disengagement is stale. For example if a person as a patient has made his grievances for his / her suffering from a disease and has approached a Doctor / Medical Expert for the medical test for referring his case for the treatment then the first and foremost primary duty of such medical expert / doctor is to examine and find out as to whether the complaint or suffering or ailment or disease of patient is existing or not, and then such medical expert / doctor would make all possible endeavour to suggest the patient to further undergo medical test in order to form an opinion as to whether the ailment / disease exists or is apprehended and if the opinion is in affirmative then certainly the medical expert / doctor may start treatment of the patient or refer such patient for diagnosis / treatment further to a more specialized medical expert rather to say that because of long lapse of approaching the patient in previous past, it could not be said that when such patient has not made a complaint in the past, as such, the matter has become stale / delay and, therefore, by virtue of long lapse of approaching the patient to the medical expert / doctor, it could be presumed that at present no disease exist or is apprehended because in past, patient failed to make complaint of his / her ailment. Certainly such approach of the medical expert / doctor would not be said to be befitting the medical system as the medical officer / expert is under obligation to form an opinion and to ascertain the existence of disease / ailment and not to decide the delay / stalement of the patient approaching him for the treatment / diagnosis. 41. Likewise, the endeavour of appropriate Government is to form an opinion about the existence of industrial dispute or its apprehension as provided in Section 2(k) of the Act. 41. Likewise, the endeavour of appropriate Government is to form an opinion about the existence of industrial dispute or its apprehension as provided in Section 2(k) of the Act. It would not be only erroneous rather would be illegal to say in the matter of disengagement of a person that such person has since has claimed for redressal of his grievance after 10 or 15 years then it would mean that there was no dispute in the interregnum and, as such, there would not be any dispute after such a period. 42. Hon’ble Supreme Court (DB) in Kuldeep Singh versus G.M., Instrument Design Development & Facilities Centre & Another, 2010 (13) SCALE 142, while relying on the decisions of Sapan Kumar Pandit’s case (supra), ) M/s Western India Match Co., Ltd.’s case (supra), and referring to decisions in Haryana State Coop. Land Development Bank versus Neelam, (2005) 5 SCC 91, S.M. Nilajkar’s case (supra) and distinguishing its earlier verdict in Nedungadi Bank’s case (supra) has very clearly observed as below:- “In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or its apprehended, the appropriate Government “at any time” refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence, the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court / Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the Management or by the State Government.” 43. There is vast difference between ‘forming an opinion’, on an ‘issue’ and deciding an ‘issue’. First opinion is formed thereafter decision is taken. Section 10(1) of the Act contemplates that appropriate Government shall ‘form an opinion’ and shall not decide about the existence of industrial dispute or its apprehension. When legislature has not given scope of ‘deciding’ even existence or apprehension of the industrial dispute then how appropriate Government could be allowed to decide an ‘issue’ in the name of ‘stalement’ or ‘delay’ which neither is mentioned nor contemplated under the ‘Act’. The delay or stalement though as a cause may be considered before ‘forming an opinion’ by the appropriate Government. The words are plain, unambiguous and are clear in Section 10(1) of the Act so far as formation of the opinion by the appropriate Government regarding existence or apprehension of the industrial dispute. The delay or stalement though as a cause may be considered before ‘forming an opinion’ by the appropriate Government. The words are plain, unambiguous and are clear in Section 10(1) of the Act so far as formation of the opinion by the appropriate Government regarding existence or apprehension of the industrial dispute. The intention of the legislature is to be gathered from the words used, therefore, liberty is not open to the appropriate Government to travel beyond the intention of legislature and it could not be presumed that the legislature has committed mistake in not providing limitation and while interpreting the statutory provision like Section 10(1) of the Act. It is not permissible to add words in the statute or in Section and read words into it which are not specifically provided therein when literal reading produces an intelligible result. It is also not permissible for the appropriate Government or the Court to add or subtract any word in the name of ‘stalement’ in any Section or statute while interpreting the same, as, such aspect would amount legislation which is not permissible even for the Court. Therefore, in view of the observations made above, it would not be open to the State Government, while exercising powers under Section 10(1) of the Act, to decide the question whether the claim by the workmen is stale or not, as such, the question, referred by the Division Bench of this Court, is dealt with accordingly. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Before The Hon’ble Mr.Justice Deepak Gupta, Judge Laiq Ram Versus State of H.P.& ors. JUDGEMENT Deepak Gupta, J I have had the benefit of going through the detailed judgment passed by my respected brother Hon’ble Mr. Justice R.B. Misra. With utmost respect, I am unable persuade myself & agree with the conclusion drawn by him that it would not be open to the State Government, while exercising powers under Section 10(1) of the Industrial Disputes Act to decide the question whether the claim filed by the workman is stale or not. Justice R.B. Misra. With utmost respect, I am unable persuade myself & agree with the conclusion drawn by him that it would not be open to the State Government, while exercising powers under Section 10(1) of the Industrial Disputes Act to decide the question whether the claim filed by the workman is stale or not. A Division Bench of this Court referred the following question for adjudication by a larger Bench: “Whether the State Government while exercising powers under Section 10(1) of the Industrial Disputes Act, is precluded from deciding the question as to whether the claim made by a workman is stale or not?” It is not necessary to give all the facts or to refer to the various provisions of the Industrial Disputes Act (Hereinafter referred to as the Act) or even to refer to many of the authorities cited, since they have been noticed in the main judgment. In my view the only question involved relates to the interpretation of the following words forming part of Section 10 of the Act: “ Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing- refer the “ The reference can be made to a Board, Court of inquiry, Labour Court etc. depending upon the nature of the dispute. The short question involved is whether the State Government can hold that since the workman has not agitated the dispute for a long time, the same has become stale and therefore no longer exists. Before dealing with this question further, I feel that it would be apposite to clarify that here we are dealing only with the question relating to the powers of the Government. Once, a reference is made, there can be no manner of doubt that the Labour Court or the Industrial Tribunal cannot reject the claim on the ground that it is stale. The Tribunal or Labour Court gets jurisdiction to decide an industrial dispute only when a reference is made to it by the appropriate Government under Section 10 of the Act. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. The Tribunal or Labour Court gets jurisdiction to decide an industrial dispute only when a reference is made to it by the appropriate Government under Section 10 of the Act. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. If the employer makes a grievance that the workman has made a stale claim then the employer should challenge an order of reference by way of writ petition and here he can contend that since the claim is stale and highly belated no industrial dispute is existed or apprehended. The Labour Court may mould the relief but it cannot invalidate or strike down the reference. Reference in this behalf may be made to the judgment of the Apex Court in Director, Food and Supplies, Punjab and another vs. Gurmit Singh, AIR 2007 SC 3012, wherein the Apex Court held as follows: “The Tribunal or the Labour Court under Section 10 gets jurisdiction to decide an industrial dispute only upon a reference by the appropriate government. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. If the employer makes a grievance that the workman has made a stale claim then an employer can challenge the reference by way of a writ petition and contend that since the claim is belated there was no industrial dispute. The Tribunal or the Labour Court cannot strike down the reference on this ground. As observed in Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. (2001 (6) SCC 222) there are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody 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 galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. The long delay for making the adjudication could be considered by the Adjudicating Authority while moulding the reliefs. That is a different matter altogether.” This judgment itself indicates that an industrial dispute can cease to exist when the workman has made a stale claim and an employer has a right to challenge the reference made by filing a writ petition. The long delay for making the adjudication could be considered by the Adjudicating Authority while moulding the reliefs. That is a different matter altogether.” This judgment itself indicates that an industrial dispute can cease to exist when the workman has made a stale claim and an employer has a right to challenge the reference made by filing a writ petition. This also postulates that the Government is not precluded from considering the fact whether an industrial dispute exists or not. A three Judge Bench of the Apex Court in Bombay Union of Journalists and others vs. The State of Bombay and another, AIR 1964 SC 1617 dealt with the powers of the State Government under Section 10 of the Act and held as follows: “....when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its powers to make a reference should be exercised under S. 10 (1) read with S. 12 (5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Govt. may refuse to make a reference.” ( emphasis supplied ) Thereafter, in M/s.Western India Match Co. Ltd. vs. The Western India Match Co. Workers Union and others, 1970 (1) SCC 225, the Apex Court specifically dealt with the phrase “at any time” occurring in Section 10 of the Act. The Apex Court held as follows: “8. 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. The Apex Court held as follows: “8. 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.”In Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others, AIR 1989 SC 1565, the apex Court clearly held that the appropriate Government exercises administrative powers and not judicial or quasi judicial powers while acting under Section 10 of the Act. Therefore, the Government cannot adjudicate upon the dispute but clarified that the Government had the right to form an opinion whether an industrial dispute “exists or is apprehended”. The State relies upon the judgment delivered in the Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others, AIR 2000 SC 839, wherein the Apex court held that though Section 10 of the Industrial Disputes Act does not prescribe any limit in making a reference, this does not mean that such power can be exercised at any time. The Apex Court held as follows: “6. Law does not prescribe any time limit 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 lapse of about seven years of 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 subject-matter 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. 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 subject-matter 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 industrial dispute was ex facie bad and incompetent.” (emphasis supplied) It would be pertinent to mention that in the aforesaid case the employer bank had challenged the order of reference itself. The Apex Court held that the reference order could be challenged in writ proceedings and since the claim had been made by the workman after 7 years of his dismissal the claim was held to be stale and the Apex Court went on to hold that therefore the dispute did not exist any longer. In Sapan Kumar Pandit v. UP State Electricity Board & others, (2001) 6 SCC 222, which has been relied upon by the learned counsel for the workmen, the services of the workmen were terminated on 17.7.1975 and on 29.3.1993 the State Government referred the dispute for adjudication to the Labour Court. The employer assailed the reference order on the ground of delay. The apex Court held that it was not a case where the workmen had woken up from deep slumber at the end of fifteen years. Along with the workman, 10 other persons were also retrenched and their grievances were espoused by the union. The employer had given an assurance to the workmen that in case the claim of he said 10 workmen is upheld by the labour Court, the same benefit would be given to the workmen. The Industrial dispute filed was partly allowed in the year 1988. The employer had given an assurance to the workmen that in case the claim of he said 10 workmen is upheld by the labour Court, the same benefit would be given to the workmen. The Industrial dispute filed was partly allowed in the year 1988. Thereafter the workmen filed a writ petition which was allowed in the year 1988 and the ten workmen were permitted to be reinstated. The SLP filed by the U.P. State Electricity Board was dismissed in the year 1989. The workman had claimed that the same benefit be accorded to him also. He along with his application for making a reference for initiating conciliation proceedings had also filed an application for condoning the delay which was allowed by the Labour Commissioner and thereafter the State Government made a reference. It was in this context that the apex Court held that the industrial dispute was in existence. In para 9, the apex Court held as follows:- “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.” Thereafter, the Apex Court in para 15 went on to hold as follows: “15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody 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. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody 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 galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under S.4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay “ Both the aforesaid judgments of the Apex Court were considered by a Division Bench of this Court in Municipal Council Paonta Sahib vs. State of H.P. and others, 2002 (2) Cur.L.J. (H.P.) 242, wherein it was held as follows: “19. In the present case, the lapse of time had caused fading of the dispute. It had not been kept alive by the respondent workman and hence, industrial dispute could be said to have existed or apprehended. The action of making reference by the appropriate Government, therefore, cannot be said to be legal and valid and reference deserves to be quashed. The petition is accordingly allowed. Reference made by the appropriate government is hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs.” In Reserve Bank of India vs. Gopinath Sharma and another, (2006) 6 SCC 221, the Apex Court held that where the workman was discharged in July, 1976 and the Central Government made the reference on 25.1.1989 the dispute could not be said to be in existence and had become stale. The Apex Court held as follows: “21.In our opinion, a dispute which is stale could not be a subject-matter of reference.”In Karan Singh vs. Executive Engineer Haryana State Marketing Board, 2007 (11) Scale 577, this question was again considered by the Apex Court and the Apex Court after considering the judgment in Sapan Kumar Pandit’s case held as follows: “11.So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.”In State of Karnataka and another vs. Ravi Kumar, (2009) 13 SCC 746, the Apex Court was dealing with a case where the workman did not challenge the order of his termination for 14 years. Then he filed a writ petition seeking a declaration that his termination was violative of Section 25-F of the Industrial Disputes Act. The High Court dismissed the writ petition but gave liberty to the workman to make a representation to the State Government. Thereafter, the workman represented to the State Government which made a reference to the Labour Court. The workman filed a claim before the Labour Court. In these circumstances, the Apex Court held as follows: “5. This Court has repeatedly held that stale claims should not be referred - vide Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. 2000(2) SCC 455 and Assistant Executive Engineer, Karnataka v. Shivalinga 2002(10)SCC 167. We may also refer to the decision in Regional Provident Fund Commissioner v. K.T. Rolling Mills, 1995 (1) SCC 181 wherein this Court observed that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. 6. In this case the respondent did not choose to challenge the termination for 14 years. Merely because some other daily wagers had got some relief, he belatedly approached the High Court in 1998. The writ petition was dismissed with an observation that the respondent was at liberty to make an application seeking reference. The contention of the respondent that reference was made on the direction of the High Court is not therefore correct. As the reference was stale, it ought to have been rejected on that ground alone. It is not possible to expect the Asstt. Executive to prove after 14 years that the daily wager did not work or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. As the reference was stale, it ought to have been rejected on that ground alone. It is not possible to expect the Asstt. Executive to prove after 14 years that the daily wager did not work or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. Further when the State Government was not a party before the Labour Court, the respondent could not implead the State Government as a party in the writ petition challenging the award, nor can the High Court grant any relief against the State Government.” (emphasis supplied) This question has been again considered by the Apex Court in titled as Kuldeep Singh vs. G.M. Instrument Design Development and Facilities Centre and another, (2010) (13) Scale 142. In this case the services of the employee were terminated in the year 1992. Thereafter, the employee kept making representations to the concerned Minister, the Chief Secretary and various officers of the employer. After considering the entire law on the subject, the Apex Court referring to Nedungadi’s case, held as follows: “17.Though this decision lays down that law does not prescribe any time limit for appropriate Government to exercise its power under Section 10 of the Act, the Court has concluded that the said power is to be exercised reasonably and in a rationale manner. In that case, the Central Government exercised its power after a lapse of about seven years of the order dismissing the workman from service. A perusal of the said decision shows that the workman has not furnished adequate reasons/materials for such a long delay and the only ground advanced by him was that two other similarly placed employees dismissed from service were reinstated.”Thereafter, the Apex Court on the facts of the case before it held that in the case before it the workman had been agitating against his was fighting for his cause before the Management as well as before the State Government till the State Government made a reference. Therefore, the Apex Court granted relief. The Apex Court summarized the legal position in the following words:“21. In view of the above, law can be summarized that there is no prescribed time limit for the appropriate government to exercise its powers under Section 10 of the Act. Therefore, the Apex Court granted relief. The Apex Court summarized the legal position in the following words:“21. In view of the above, law can be summarized that there is no prescribed time limit for the appropriate government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government “at any time” refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for latches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal.” (emphasis supplied) The latter part of the observations clearly show that the Apex Court has held that even though no limitation is prescribed for making a reference in terms of Section 10, even then it would be reasonable to expect that the disputes are referred as soon as possible. The Apex Court clearly held that if sufficient material is not put-forth for enormous delay it would certainly be fatal. After carefully going through the various judgments of the Apex Court, it is apparent that in some cases the Apex Court itself has held that since there is delay in seeking the reference the dispute had faded away or had got eclipsed due to lapse of time. Even in those cases where the Apex Court held that the reference was proper and the dispute still existed, it went on to hold that in cases where lapse of time had caused fading or eclipsing of the dispute and nobody had kept the dispute alive, it would be reasonable to conclude that the dispute ceases to exist. The Government is authorized to form the opinion whether a dispute exists or not. This clearly shows that the Government is not powerless and in case there is great delay and there is no explanation for the delay then the Government can refuse to make a reference on the ground that the claim is stale and therefore the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even if no action has been initiated it will not mean that the dispute ceases to exist. Whether, a dispute exists or not, or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case.I would answer the question in the aforesaid terms. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Before The Hon’ble Mr.Justice Surinder Singh, Judge Laiq Ram Versus State of H.P. & Others JUDGEMENT SURINDER SINGH, J. 1. I have the privilege to go through the views of both my learned Brother Judges. Each of them has explored the law on the subject extensively. I agree with the view taken by Brother Justice Deepak Gupta. I have the privilege to go through the views of both my learned Brother Judges. Each of them has explored the law on the subject extensively. I agree with the view taken by Brother Justice Deepak Gupta. However I would like to add that the Parliament, recently brought about radical amendments in the Industrial Disputes vide Act No. 24 of 2010; which inter alia provided a direct access, to Labour Court or Tribunal in case of dispute arising out of Section 2-A of the Act by amending it, by putting a time cap to seek redressal, by a workman of his “industrial dispute” which reads as under:- “Amendment of Section 2-A: Section 2-A of the principal Act shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-sections shall be inserted, namely:— “(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).” 2. The above amendment received the assent of the President on 16th August, 2010 and published in the Gazette of India, Extra, Part II Section 1 dated 16th August, 2010, which provided another independent direct channel to the workman which is also independent of Section 10 of the Act, but putting a time cap limiting the period to seek relief so claimed. 3. 3. Earlier the Workman, whose serviceswere discharged, dismissed,retrenched or otherwise terminated under Section 2-A of the Act, had no access and were unable to approach the Labour Court or Tribunal in the absence of a reference of “industrial dispute” by the appropriate Government, which caused delay and miseries to him. 4. Though the Industrial Disputes Act, 1947 provides the machinery and procedure for the investigation of industrial disputes but with the passage of time and experience gained, judicial verdicts and industrial relations policy of the Government the above change was necessitated by limiting the period within which a workman can directly approach the Industrial Tribunal/court. However, Chapter-III of the Act deals with reference of disputes to Boards, Courts or Tribunals and Section 10 particularly deals with reference of such disputes to it, which does not prescribe any time limit, for making a reference of an “industrial dispute” but the appropriate Government has to form an “opinion” that any “industrial dispute” existsor apprehended, it may “at any time”, by order in writing refer to it for its determination as provided in that Section. The words “opinion” and “at any time” occurring in this section are quite important to answer the reference in question. 5. The Supreme Court and the various High Courts in catena of its judgments have interpreted and supplied the meaning to these words with reference to a particular fact situation, which have been cited above gainfully by my esteemed Brothers. In my opinion, the literal rule of construction requires the words of the Act be construed according to its literal and grammatical meaning whatever the result may be. The nature of the process of formation of the “opinion” under Section 10 (1) in referring the dispute, in this sense, is based upon facts though administrative, but is subjective and not open to judicial scrutiny. Thus the question whether an “industrial dispute” existed on the date of reference, is certainly a question of fact to be determined by the Tribunal on the material placed before it; for that the workman has to offer a semblance of explanation of delay. However, in order to promote industrial peace, harmony, fairness and transparency in the decision making process, the workman ordinarily be also heard. Though, I hasten to add that no elaborate hearing is required except the explanation by the workman to project his case and explain the delay. However, in order to promote industrial peace, harmony, fairness and transparency in the decision making process, the workman ordinarily be also heard. Though, I hasten to add that no elaborate hearing is required except the explanation by the workman to project his case and explain the delay. The reply/representation would be taken into consideration by the appropriate Government to form an “opinion”. This process would shun the act of arbitrariness and unreasonableness, which would be reasonable and exercise of such power in a reasonable manner. 6. Therefore, the appropriate Government has to be subjectively satisfied while forming an “opinion” such power has to be exercised reasonably and in a rational manner, whether a dispute exists or not. In case the answer is in positive, it has to refer the matter to Court/ Tribunal irrespective of time lapse, though, it would depend on the factual background of each case and no straight-jacket formula can be laid. Hence, I fully support the view taken by Brother Justice Deepak Gupta.