JUDGMENT Hon’ble Tarun Agarwala, J.—The respondent-workman was engaged as a Ward Boy on 2nd December, 1973. On account of a misconduct committed by him, an inquiry was instituted against him, and thereafter, the disciplinary authority passed an order of termination dated 26th June, 1982. The workman did not stir in the matter and kept silent for 22 years and, eventually, filed an application by raising an industrial dispute in the year 2004, which was numbered as C.P. Case No. 130 of 2004. The Assistant Labour Commissioner after inviting objections from the employer and, after hearing the parties, declined to refer the dispute and consigned the matter to the records on the ground that on account of the delay made by the workman it was not expedient to refer the dispute. The workman, being aggrieved, by the said decision filed an appeal before the Labour Commissioner which was also rejected by an order dated 4th August, 2005. Thereafter a review application was filed by the workman before the Assistant Labour Commissioner which was also rejected by an order dated 3rd August, 2006. 2. It transpires that the workman filed a fresh application which was numbered as C.P. Case No. 105 of 2008 and, on this application, the State Government, by an order dated 26th August, 2008, referred the matter to the Labour Court-IInd, Kanpur for adjudication of the dispute. The terms of the reference order was some what like this: “whether the employers were justified in terminating the services of the workman with effect from 26th June, 1982? If not, to what relief is the workman entitled to”. 3. The petitioner, namely, the employer, being aggrieved by the decision of the State Government in referring the dispute has filed the present writ petition contending that there was undue delay in raising the reference and that such an old and stale dispute could not be referred as it was neither expedient to refer a dispute especially when there was no industrial dispute existing nor was it apprehended. It was also urged that when the application of the workman was rejected on three earlier occasions and in the absence of any fresh material coming on record, no industrial dispute could be referred to the Labour Court for adjudication. It was also argued that no reason was given by the State Government while referring the dispute. 4. It was also urged that when the application of the workman was rejected on three earlier occasions and in the absence of any fresh material coming on record, no industrial dispute could be referred to the Labour Court for adjudication. It was also argued that no reason was given by the State Government while referring the dispute. 4. It was contended that no industrial dispute existed nor any industrial dispute was apprehended and, therefore, the reference of a dispute, after 22 years from the date of the cause of action, was wholly arbitrary, illegal and consequently, the reference order was liable to be quashed. 5. On the other hand, the workman contended that Section 4K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) clearly contemplates that where the State Government is of the opinion that an industrial dispute exists or is apprehended, it may at any time refer a dispute to a Labour Court or to a Tribunal for adjudication of that dispute. It was consequently, contended that the words “at any time” indicates that there is no period of limitation attached to the raising of a dispute and that a dispute could be referred at any moment of time. It was also contended that the delay in raising the reference can only be a mitigating factor while moulding the relief by the Labour Court or Tribunal with regard to reinstatement or with regard to back wages, in the event, the claim of the workman was allowed. 6. It was contended that the State Government while referring a dispute, does not adjudicate the matter on merit nor any right of the employer is affected, if a dispute is referred. The right of either of the parties is only affected when the dispute so referred is decided. 7. In support of their stand, the learned counsel for the parties placed a plethora of decisions in support of their submissions which will be considered and dealt with hereinafter at the appropriate place. 8. In this regard, the Court has heard Sri Chandra Bhan Gupta, the learned counsel for the petitioner, Ms. Bushra Mariyam, the learned counsel for the workman and the learned Standing Counsel for the State. 9. 8. In this regard, the Court has heard Sri Chandra Bhan Gupta, the learned counsel for the petitioner, Ms. Bushra Mariyam, the learned counsel for the workman and the learned Standing Counsel for the State. 9. In one of the applications of the workman, it was contended that the workman had filed a civil suit against the order of termination, which was decreed and a direction was given for his reinstatement but the same was not complied by the employers and that the C.P. case was also filed by the workman in 1984 in which notices were issued and that the State Government did not refer the dispute. The employers on the other hand, have contended that they are unaware of any conciliation proceedings being initiated in 1984 as they did not receive any such notice and that the decree passed by the Civil Court was set aside subsequently, on an application for recall being moved by the petitioner’s under Order IX, Rule 13 of C.P.C. 10. In M/s Western India Match Co. Ltd. v. The Western India Match Co. Workers Union and others, 1970 (1) SCC 225 , one of the contentions raised was whether the Government having once declined to refer a dispute could not change its mind after a lapse of six years. It was contended that the expression “at any time” in Section 4K of the Act did not apparently signify any time limit yet it would be construed in a sense that once the Government had refused to make the reference after considering the matter and the employer thereupon had been led to believe that the dispute was not to be agitated in a Tribunal and had consequently, made his own arrangement, the Government could not take a somersault and decide to refer the dispute for adjudication. 11. The Supreme Court in paragraph 8 of the aforesaid judgment held that : “From the words used in Section 4(k) of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to, the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression “at any time”. though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can “at any time”, i.e., even when such proceedings have not begun. or are still pending, decide to refer the dispute for adjudication. The expression “at any time” thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression “at any time” in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for, instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.” 12. The Supreme Court held that the words “at any time” does not mean that the dispute could be raised at any moment of time but what it means is, that the State Government, without waiting for conciliation proceedings, could proceed and make a reference, if it finds that an industrial dispute exists or is apprehended. 13. In M/s Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana and others, 1979 (1) SCC 1 , a similar argument was advanced, namely, that once a Government had declined to refer a dispute it could not refer the dispute unless there was some fresh material available. 13. In M/s Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana and others, 1979 (1) SCC 1 , a similar argument was advanced, namely, that once a Government had declined to refer a dispute it could not refer the dispute unless there was some fresh material available. The Supreme Court held : “.........It is not absolutely necessary that there ought to be some fresh material before the Government for reconsideration of its earlier decision. The Government may reconsider its decision on account of some new facts brought to its notice or for any other relevant consideration and such other relevant consideration may include the threat to industrial peace by the continued existence of the industrial dispute without any attempt at resolving it and that a reference would at least bring the parties to the talking table. A refusal of the appropriate Government to make a reference is not indicative of an exercise of power under Section 10(1), the exercise of the power would be a positive act of making a reference. Therefore, when the Government declines to make a reference the source of power is neither dried up nor exhausted. It only indicates that the Government for the time being refused to exercise the power but that does not denude the power. The power to make the reference remains intact and can be exercised if the material and relevant considerations for exercise of power are available; they being the continued existence of the dispute and the wisdom of referring it, in the larger interest of industrial peace`and harmony. Refusal to make the reference does not tantamount to saying that the dispute, if it at all existed, stands resolved. On the contrary the refusal to make a reference not compelling the parties to come to a talking table or before a quasi-judicial Tribunal would further accentuate the feelings and a threat to direct action may become imminent and the Government may as well reconsider the decision and make the reference. It is, therefore, not possible to accept the submission that if the Government had on an earlier occasion declined to make a reference unless it be shown that there was some fresh or additional material before the Government the second reference would be incompetent. It is, therefore, not possible to accept the submission that if the Government had on an earlier occasion declined to make a reference unless it be shown that there was some fresh or additional material before the Government the second reference would be incompetent. It has not been shown that the dispute had ceased to exist and the very existence of the dispute enables the Government to exercise the power under Section 10(l) and it has been rightly exercised.......” 14. In Indian Explosive Ltd. (Fertiliser Division) v. State of Uttar Pradesh, 1981 FLR, a Division Bench of the Allahabad High Court took a similar view and held : ..."we are clearly of the opinion that neither the employer nor the workmen can claim any right to be heard before an order of reference is made either initially or on second thoughts..... and again held .... "When an order is passed under Section 4-K of the Act, the power in substance is exercised on behalf of the public at large and in the interest or the community....." and further held “In our opinion, there is also no merit in the contention that once the Government has declined to make a reference of a particular industrial dispute, any civil rights of the management come into existence which are adversely affected as a consequence of a reversal of the decision....” 15. In Virendra Bhandari v. Rajasthan State Road Transport Corporation and others, 2002 (94) FLR 624, the Supreme Court held that where an industrial dispute exists, the Government can refer the matter for adjudication. The Supreme Court further held that it must be borne in mind that the industrial disputes are referred to the Labour Court or the Industrial Tribunal for maintenance of industrial peace and not merely for an adjudication of the dispute between two parties. The Supreme Court further held that it was certainly permissible for the Government to make a second reference after inquiring into the matter that an industrial dispute exists. 16. The Supreme Court further held that it was certainly permissible for the Government to make a second reference after inquiring into the matter that an industrial dispute exists. 16. In M/s Mahabir Jute Mills Ltd., Gorakhpur v. Shibban Lal Saxena and others, AIR 1975 SC 2057 , a Constitutional Bench judgment of the Supreme Court, after considering the provision of Section 4K of the Act, held that the said provision gives a wide discretion to the State Government to act under certain circumstances and that if the Government on the basis of the material before it comes to the conclusion that no real dispute exists and that it was not expedient to make a reference, in that event, one could hardly find fault with the order of the Government but if there are material existing it becomes necessary for the State Government to refer an industrial dispute where it comes to a conclusion that an industrial dispute existed or was apprehended. 17. The Supreme Court further held that the order passed by the State Government referring the dispute was only an administrative order and it was not necessary that an administrative order should be a speaking order though the Supreme Court held that it was desirable that such orders should contain reasons when they decide matters which affects the rights of the parties. 18. The learned counsel for the respondent further placed reliance upon a decision of the Supreme Court in Ajaib SIngh v. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another, AIR 1999 SC 1351 , where the Supreme Court held that a dispute referred to a Labour Court could be referred even after a delay of 7 years, since an industrial dispute was existing and that the Labour Court while moulding the relief could refuse back wages or direct payment of part of back wages taking into the delay in raising the dispute as a mitigating circumstance. 19. Similar view was again expressed by the Supreme Court in Gurmail Singh v. Principal Government College of Education and others, 2000 (84) FLR 920 and Sapan Kumar Pandit v. U.P. State Electricity Board and others, 2001 (90) FLR 754, wherein the Supreme Court held in paragraphs 8 and 14 : 8. “Hence, the real test is, was the industrial dispute in existence on the date of reference for adjudication ? “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 lapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed 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. 14. .... Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief......” 20. In Kuldeep Singh v. G.M., Instrument Design Development and Facilities Centre and another, 2011 (128) FLR 121. The Supreme Court after considering its earlier decisions held in paragraph 21. 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 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 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. How, 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. “ 21. On the other hand, in M/s Shalimar Works Limited v. Their Workmen, AIR 1959 SC 1217 , the Supreme Court held that the delay of three years in making the reference was fatal, even though there was no limitation prescribed for reference of a dispute, nonetheless, the dispute should be referred as soon as possible after it has arisen and after conciliation proceedings have failed. The Supreme Court held: “13. The Supreme Court held: “13. ......It is true that there is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. This industry has to carry on and if for any reason there has been a whole sale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen.....” ....” In these circumstances, we are of the opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to make.....” 22. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, 2000 (84) FLR 673. In this case after an inquiry, it was found that the workman had misappropriated some amount after falsifying the books of the bank and, consequently, an order of dismissal from service was passed. The workman served a notice after seven years on the ground that he was discriminated and thereafter raised a dispute. The Supreme Court held that even though the law does not prescribe any time limit for the appropriate Government to exercise its powers, nonetheless, the power has to be exercised reasonably and in a rational manner. The Supreme Court held that where a dispute has become stale it could not become a subject-matter of reference. The supreme Court held : “5. 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.....” 23. In Assistant Executive Engineer v. Sri Shivalinga, 2002 (92) FLR 601, a similar view was again taken by the Supreme Court. 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.....” 23. In Assistant Executive Engineer v. Sri Shivalinga, 2002 (92) FLR 601, a similar view was again taken by the Supreme Court. In this case, the workman raised a dispute after 9 years. The Supreme Court noticed the fact that it was impossible to maintain the record for such a long period and place them before the Labour Court and, consequently, held that the delay of 9 years was fatal to the case and on this basis, rejected the reference. 24. In U.P. State Road Transport Corporation v. Ram Singh and another, 2008 (17) SCC 627, the supreme Court held : “7. ... This Court has in several decisions held that while delay cannot by itself be sufficient reason to reject an industrial dispute, nevertheless the delay cannot be unreasonable. The decision in Prakash Chandra Sahu has reaffirmed this principle. The reason for diligence and promptness lies in the fact that the records pertaining to an employee might have been destroyed and it would be difficult to obtain witnesses who would be competent to give evidence so many years later if the Labour Court wishes to hold a further enquiry into the matter. In the present case the delay of 13 years is unreasonable. The mere fact that the respondent was making repeated representations would not justify his raising the issue before the Labour Court after 13 years. In any event the last representation was made in 1983 and the industrial dispute was admittedly raised in 1986. The lack of diligence on the part of the respondent is apparent.” 25. The Supreme Court held that the delay by itself cannot be a ground to reject an industrial dispute, nonetheless, the delay cannot be unreasonable and if there is no diligence and promptness on the part of the workman, such unreasonable delay would become justifiable for the quashing of the reference. 26. In Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd., 2007 (9) SCC 109 . The Supreme Court held : “29. 26. In Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd., 2007 (9) SCC 109 . The Supreme Court held : “29. This Court while dealing with Sections 10(1)(c) and (d) of the ID Act, has repeatedly held that though the Act does not provide a period of limitation for raising a dispute under Section 10(1)(c) or (d), if on account of delay, a dispute has become stale or ceases to exist, the reference should be rejected. It has also held that lapse of time results in losing the remedy and the right as well. The delay would be fatal if it has resulted in material evidence relevant to adjudication being lost or rendered unavailable (vide Nedungadi Bank Ltd v. K.P. Madhavankutty, 2000 (2) SCC 455 ; Balbir Singh v. Punjab Roadways, 2001 (1) SCC 133 , Assistant Executive Engineer v. Shivalinga, 2002 (10) SCC 167 and S.M. Nilajkar v. Telecom Distt. Manager, 2003 (4) SCC 27 ). When belated claims are considered as stale and non-existing for the purpose of refusing or rejecting a reference under Section 10(1)(c) or (d), inspite of no period of limitation being prescribed, it will be illogical to hold that the amendment to the Act inserting Section 10(4-A) prescribing a time limit of six months, should be interpreted as reviving all stale and dead claims.” 27. In M/s Obeetee Pvt. Ltd. v. State of U.P. and others, 2010 (124) FLR 345 and M/s Areva T & D India Ltd. v. State of U.P. and others, 2012 (133) FLR 582, the Allahabad High Court held that unreasonable delay in raising the dispute and in the absence of any reasonable explanation leads to a presumption that no industrial dispute existed and, consequently, the reference of a dispute made by the State Government being an old and stale claim could not be referred and was liable to be quashed. 28. In the light of the aforesaid decisions, it is clear that the real test is, that the words “ any industrial dispute exists or is apprehended” has to be read alongwith the words “at any time”. These words, under Section 4K of the Act, are complimentary to each other. Consequently, the words “at any time” does not suggests that a dispute could be raised at any stage and that there is no period of limitation attached to it. These words, under Section 4K of the Act, are complimentary to each other. Consequently, the words “at any time” does not suggests that a dispute could be raised at any stage and that there is no period of limitation attached to it. All it means that so long as an industrial dispute exists or is apprehended, such dispute could be referred for adjudication before an appropriate Labour Court or Industrial Tribunal upon a reference being made by the State Government. 29. The crucial test is, that an industrial dispute should be in existence or is apprehended on the date of reference. If there was no industrial dispute existing or if the industrial dispute was not apprehended, the State Government had no power to make a reference but if the dispute was existing or was apprehended, the State Government could refer the dispute even if the dispute was raised after a considerable period of time. 30. Further, the reference of such dispute is to be made on such opinion being formed by the Government on the basis of the material placed before it. In appropriate cases, even without waiting for the conciliation report the State Government can “at any time” refer a dispute which is existing or is apprehended for adjudication. The decisions of the Supreme Court further indicates that where there has been delay in raising a dispute but where the dispute was existing, the Labour Court or the Tribunal while considering the matter could mould the relief and deny reinstatement or back wages as the case may be keeping in mind the delay in raising the dispute as a mitigating circumstance. 31. Further, the Supreme Court has also held that old and stale dispute should not be referred as it is not expedient to do so and that certain matters should come to a rest so that industrial peace and harmony is maintained and parties are not embroiled in litigating an old and stale dispute. The Supreme Court was clear in indicating that where no industrial dispute existed or was apprehended the question of referring such old and stale dispute could not arise. 32. In the light of the aforesaid, the Court finds that in the instant case the services of the workman was terminated in the year 1982. The Supreme Court was clear in indicating that where no industrial dispute existed or was apprehended the question of referring such old and stale dispute could not arise. 32. In the light of the aforesaid, the Court finds that in the instant case the services of the workman was terminated in the year 1982. The workman filed a case in the civil Court and got an ex parte decree, which was subsequently, set aside in the year 1984 upon an application for recall being filed by the employers. The workman did not stir in the matter for 22 years and only filed an application in the year 2004 wherein the State Government declined to refer the dispute holding it to be inexpedient on account of the considerable delay. The appeal was rejected. The review application was again rejected and, on the fourth occasion, the State Government referred the dispute. The Court, upon perusal of the affidavits filed in the present writ petition, finds that the workman after the dismissal of his case before the civil Court in 1984 did not stir in the matter nor pursued his remedy and only filed an application in year 2004. There is no explanation on behalf of the workman as to what was he doing during this period from 1984 to 2004. The Court further finds that when the State Government rejected the plea of the workman on three occasion there was no material before the State Government to indicate that an industrial dispute was existing or was apprehended. 33. The Supreme Court has held that, on account of delay, if a dispute has become stale or ceases to exist, the reference should be rejected. The Supreme Court has further held that lapse of time not only results in losing the remedy and also the right as well and that the delay would be fatal since it could result in material evidence being lost or rendered unavailable. In the instant case, the Court finds that not only it is an old and stale dispute, the workman did not stir in the matter nor the Court finds that there is anything on record to indicate that there was substantial material before the State Government to indicate that an industrial disputed existed or was apprehended coupled with the fact that the State Government itself declined to refer the dispute on three earlier occasions as being inexpedient. 34. The Court is of the opinion that it was not expedient for the State Government to refer an old and stale dispute. The Court accordingly finds that even though there is no period of limitation, nonetheless, the power has to be exercised within a reasonable period. The Court finds that there is nothing to indicate as to why the workman could not approach the authority under the Industrial Disputes Act to refer the dispute earlier. 35. In the light of the aforesaid, the Court is of the opinion that an old and stale claim has been referred and in the absence of any industrial dispute existing the reference order cannot be allowed to stand. Accordingly, the reference order is quashed. The writ petition is allowed. ——————