JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 21.03.2018 passed by the appropriate Government by which the reference has been refused to be made on the ground of delay. 2. It is the case of the petitioner who is the widow of deceased employee namely, Late Krishna Bhuiya who was permanent employee under the management of Godhur Colliery M/s Bharat Coking Coal Limited (in short BCCL) working as minor loader died in harness on 21.07.2008. 3. It is the case of the petitioner that immediately after the death of her husband, the request for providing appointment was made through registered post to the management in order to survive and when it was not considered, again a letter was submitted for her employment on 15.04.2015 but compassionate appointment having not been granted, a dispute was raised before the Labour authority, conciliation as contained under the provision of Section 12 of the Industrial Disputes Act, 1947 but conciliation having failed, thereafter conciliation report was forwarded before the appropriate Government for needful, in pursuance thereto, the order has been passed on 21.03.2018 by the appropriate Government refusing to make reference on the ground that the dispute has been raised not within a reasonable time. 4. Learned counsel for the petitioner has submitted by referring to the provision of Industrial Disputes Act, 1947 more particularly Section 12 (5) which stipulates that on failure of the conciliation, report is to be submitted before the appropriate Government and the appropriate Government can make reference or take other decision by refusing to make reference by assigning reason but that provision has been tested by Hon'ble Apex Court in the case of Telco Convoy Driver Mazdoor Sang Driver vs. State of Bihar, reported in (1989) 3 SCC 271 and submitted by referring to paragraph-13 thereof that the decision taken by the authority in refusing to make reference is contrary to the aforesaid position of law as has been settled by Hon'ble Apex Court in the aforesaid judgment. He submits that there is no delay on his part because the respondent-management is taking the plea that for the first time, application has been made for appointment on compassionate ground on 15.04.2015 but prior to that also i.e., immediately after the death of her husband, application for getting appointment on compassionate ground was made through registered post as has been referred in the failure conciliation report annexed to the writ petition, hence, the ground upon which the reference has been refused by the appropriate Government is improper since the same needs adjudication as to whether the application filed by the petitioner on 15.04.2015 is the first application or prior to that any other application has been filed since it is the specific case of the petitioner that prior to 15.04.2015, application for getting appointment on compassionate ground was filed through registered post, therefore, the ground of delay as has been raised in the impugned order is not proper, hence, the same needs adjudication by way of making reference before the adjudicator. 5. Mr. Prabhat Kumar Sinha, learned Central Government counsel has defended the impugned order by submitting that there is no infirmity in the same rather the decision has been taken by the authority in pursuance to the provision as contemplated under Section 12(5) of the Industrial Disputes Act, 1947. He submits that the appropriate Government cannot be said to be a post office and if there is no cause at all, the appropriate Government can take decision by refusing to make reference that is the implication of provision of Section 12(5) of the I.D. Act, 1947. Mr. Sinha has further submitted that there is delay in filing the application since as has been referred in the failure conciliation report that for the first time application was filed on 15.04.2015 and death has occurred sometime in the year 2008, therefore, there is delay of 7 (seven) years, hence, as per the scheme to provide appointment on compassionate ground since there is a period of limitation which having expired, the petitioner has got no case on merits and if the reference would be made it would be shear wastage of time. 6. Mr. 6. Mr. Ajay Kumar Sah, learned counsel appearing for BCCL has submitted that the petitioner has failed to satisfy by not producing a single chit of paper to the effect that any application has been filed through registered post prior to 15.04.2015 as has been referred in the failure conciliation report, further he has also not brought any document before this Court i.e., in the instant writ petition, hence, the order passed by the appropriate Government suffers from no infirmity. He submits that as per the scheme of appointment on compassionate ground, the specific period of limitation has been provided and hence the application having filed after lapse of period of limitation stipulated in the terms of agreement contending the scheme, the appropriate Government has passed proper order, hence needs no interference. 7. Having heard learned counsel for the parties and after appreciating the rival submission, this Court deems it fit and proper, before looking to the legality and proprietary of the order, to deal with the provision as contained in Section 10(1) as also Section 12 of the Industrial Disputes Act, 1947 which are referred hereinbelow:- “10. 7. Having heard learned counsel for the parties and after appreciating the rival submission, this Court deems it fit and proper, before looking to the legality and proprietary of the order, to deal with the provision as contained in Section 10(1) as also Section 12 of the Industrial Disputes Act, 1947 which are referred hereinbelow:- “10. Reference 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):] [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 refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government] [(1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.]” Section 12 of the I.D. Act, 1947 speaks as follows:- “(12). Duties of conciliation officers.–(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government [or an officer 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 subsection (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.] 8. It is evident from Section 10(1) which starts with the words “that any industrial dispute exist or is apprehended” then the appropriate Government may refer the dispute before the appropriate authority for its adjudication. The scope of Section 10(1) of the Act, 1947 has been discussed by the Hon'ble Supreme Court in the case of State of Madras vs. C.P. Sarathy, reported in (1953) 1 LLJ 174 (SC) wherein their lordships has been pleased to lay down the following propositions:- “(i) the government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an 'industrial dispute' exists or is apprehended; (ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the government to decide; (iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and (iv) the order of reference passed by the government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to seek if the government had material before it to support the conclusion that the dispute existed or was apprehended.” In another judgment rendered by the Hon'ble Apex Court in the case of Western India Match Co. vs. WIMCO Workers' Union, reported in AIR 1970 SC 1205 , wherein it has so held presumably because the government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. In another judgment rendered by the Hon’ble Apex Court in the case of Sambhu Nath Goyal vs. Bank of Baroda, reported in AIR 1978 SC 1088 , while discussing the scope of Section 10(1) of the Industrial Disputes Act, 1947, the court pointed out that the power conferred on the government by this provision to refer the dispute can be exercised only when there is an existing or apprehended industrial dispute. In Telco Conveys Drivers Mazdoor Sangh vs. State of Bihar, reported in (1989) 3 SCC 271 , it has been held at Para- 13 by Hon’ble Apex Court which reads here under as: “Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be excess of the power conferred it by Section 10 of the Act.” In another judgment rendered by the Hon’ble Apex Court in the case of National Engineering Industries Ltd. vs. State of Rajasthan and Ors., reported in AIR 2000 SC 469 wherein at Para- 26 it has been held which is being quoted. “After having heard the learned advocates for the parties and after having gone through the pleadings of the parties made before the Assistant Labour Commissioner and after having carefully considered the contentions raised in the present petition as well as the authorities cited before the Court, the Court is of the view that the impugned order passed by the Assistant Labour Commissioner, Ahmedabad does not call for any interference of this Court while exercising its extraordinary writ jurisdiction under Article 226 and 227 of the Constitution of India. While making the reference, the Assistant Labour Commissioner has observed that the industrial dispute pertaining to the matters regarding 16 lady workers is required to be referred to the Labour Court while exercising his powers vested in him under Section 10(1) (c) of the Industrial Disputes Act and the dispute was as to whether these 16 ladies should be reinstated in service in their original posts with full back wages for the intervening period. During the course of conciliation proceedings, the petitioner has filed its reply and counter reply was filed on behalf of the union. The plain reading of the reply as well as counter reply makes it clear that the petitioner has raised the dispute as to whether these 16 ladies are the employees of the petitioner or whether the petitioner is an ‘industry’. The plain reading of the reply as well as counter reply makes it clear that the petitioner has raised the dispute as to whether these 16 ladies are the employees of the petitioner or whether the petitioner is an ‘industry’. The Union has filed its counter reply, wherein it is stated that these 16 ladies were the employees for the petitioner. The Assistant Labour Commissioner is not competent to decide as to whether these 16 ladies are the employees of the petitioner. It requires adjudication and proper forum for adjudication is either the industrial Tribunal or Labour Court. The Assistant Labour Commissioner has to merely discharge his function as an administrative officer. He has to record prima facie subjective satisfaction and after having come to this subjective satisfaction, he has to refer the dispute to the Labour Court or to the Industrial Tribunal. Whether particular person is an employee of the institute or not, requires leading evidence oral as well as documentary. This could be done only at the level of either the Labour Court or Industrial Tribunal where both the parties do get the opportunity of leading their evidence. It is held by the Courts on number of occasions, that the proceedings should not be terminated prematurely. If the reference is rejected, the Conciliation Officer has to record the reasons for that under Section 12(5) of the Act. However, while making the reference, it is not necessary to record any reason. Merely because the reasons are not recorded while making the reference, it cannot be said that the order is without application of mind. It is also important to note here that before the Assistant Labour Commissioner, the award passed by the Industrial Tribunal in the case of NID was pointed out wherein on similar situation, the Industrial Tribunal has come to the conclusion that those 31 ladies were the employees of National Institute of Design. It was also pointed out that the petition was pending before this Court being Special Civil Application No.8549 of 1988. The Court has also considered the relevant observations made by the Hon’ble Supreme Court in the decision of State of Madras Vs. It was also pointed out that the petition was pending before this Court being Special Civil Application No.8549 of 1988. The Court has also considered the relevant observations made by the Hon’ble Supreme Court in the decision of State of Madras Vs. C. P. Sarathy (supra) wherein, in no uncertain terms, the Supreme Court has observed that if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are the matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash and set aside the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion. The Court has also considered the binding judgment of the Supreme Court and observations made therein which are squarely applicable to the facts of the present case. The determination of the questions or issues which are raised in this petition requires examination of factual matters and for that purpose, all relevant materials including oral as well as documentary evidence will have to be led before the Labour Court and same are required to be considered. If this is the situation then in that case, the Government could not arrogate unto itself the power to adjudicate on the question and hold that 16 ladies were not workmen within the meaning of Section 2(s) of the Act and terminate the proceedings prematurely. This issue will have to be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Simply because the dispute is raised before this Court regarding employer-employee relationship or whether the petitioner is an 'industry' or not, the order making reference passed by the Assistant Labour Commissioner cannot be quashed and set aside.” In the case of Anz Grindlays Bank Ltd –vs- Union of India, reported in (2005) 12 SCC 738 wherein at paragraph-14 the Apex Court has held that: “Mr. Bhat, learned counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievance before the Industrial Tribunal itself and if the decision of the Tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned counsel the writ petition is premature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrate from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceeding under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised.” There is no dispute about the fact that the industrial dispute is a piece of beneficent legislation and it has been promulgated for redressal of dispute relating to workmen and for that purpose Tribunal or Labour Court have been created in order to settle the dispute. For settlement of dispute when any dispute is being raised the first process is go for conciliation and if settlement has not been arrived at in course of conciliation proceeding, the Conciliation Officer in contemplation of power conferred under section 12(4) will submit failure report before the appropriate government and the appropriate government in exercise of power conferred under section 10(1) of the Industrial Disputes Act, 1947 is empowered to refer the dispute before the Labour Court or the Tribunal by making proper reference, meaning thereby the Reference since been based upon complex questions of facts and law and as such the dispute is to refer before the Tribunal or Labour Court for its adjudication by leading evidence in this regard by the parties. In this regard, scope and importance of Industrial Disputes Act, 1947 which has been discussed by the Hon’ble Apex Court in the case of Edukanti Kistamma (dead) through LRs and others vs. S. Venkatareddy(dead) through LRs. And other, reported in (2010) 1 SCC 756 wherein at para-26 it has been held as enumerated herein below: “26. …. Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statute’s utility. The provisions of the statute must be constructed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the dispute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose…..” Thus, from the detail discussion of the statutory provision and the authoritative pronouncement in this regard, it is evident that the Industrial Disputes Act, 1947 has been formulated by the Legislature in order to resolve the dispute of the workers. If at the threshold the Reference would be quashed by the High Court sitting under Article 226 of the Constitution of India the matter would be said to be thrown out before its initiation and certainly it would be proper for the reason that if any dispute is being raised by any of the parties it has to be answered by proper adjudication. 9. Section 12 of the Act, 1947 stipulates about the duties of the Conciliation Officer and sub-section (5) of Section 12 stipulates that 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 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. 10. The aforesaid provision however stipulates that the power is also upon the appropriate Government to refuse to make reference but with assigning reason. 11. The Hon'ble Apex Court in the case of Telco Convoy Drivers (supra) under para 13 while exercising power conferred under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it under Section 10 of the Act, 1947. 12. Mr. Prabhat Kumar Sinha, learned counsel for the Central Government has relied upon a judgment rendered in the case of Prabhakar vs. Joint Director, Sericulture Department and Anr., reported in (2015) 15 SCC 1 , para 42.3 thereof and has submitted that if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists. According to him, the death has occurred in the year 2008 but the dispute has been raised on 15.04.2015 and therefore, it is after long period and hence, it cannot be said that the dispute is still existing, therefore, it will not come under the fold of the dispute within the meaning of Industrial Disputes Act, 1947. According to him, the death has occurred in the year 2008 but the dispute has been raised on 15.04.2015 and therefore, it is after long period and hence, it cannot be said that the dispute is still existing, therefore, it will not come under the fold of the dispute within the meaning of Industrial Disputes Act, 1947. But this argument is having no force and this judgment is also not applicable in the facts of this case as because the delay as has been taken a ground on the basis of application dated 15.04.2015 but as per the workmen, application has been filed immediately after death through registered post as recorded in the failure report, therefore, it needs to be examined that delay is on whose part, as to whether by the workmen or the management in not deciding the first application, if made, that needs adjudication. He has also relied upon the judgment rendered in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty and Ors., reported in (2000) 2 SCC 455 . This Court has examined the factual aspect involved in the said case and has found that the dispute has been raised after lapse of period of 7 years by serving a notice upon the Bank contending that he was discriminated as to other employees of the Bank under similar situation were reinstated in the service and in the aforesaid document, the ratio has been laid down that the matter is not fit to be referred on account of the fact that for the first time i.e., after lapse of 7 years, the dispute pertaining to violation of Article 14 by discriminating the petitioner from other similarly situated has been raised. It is settled position of law that the judgment or any authority till pronouncement is not applicable universally but it is to be tested on the basis of the facts and circumstances involved in each and every case. It is settled position of law that the judgment or any authority till pronouncement is not applicable universally but it is to be tested on the basis of the facts and circumstances involved in each and every case. This Court while examining the factual aspect as has been referred in the impugned order of the judgment rendered by Hon'ble Apex Court in the case of Nedungadi Bank Ltd. (supra) is of the view that the factual aspect involved in the case is quite different to that of the instant case since herein it is not the case of the petitioner that he for the first time has made an application for getting appointment on compassionate ground on 15.04.2015 rather his case before the Conciliation Officer was that prior to 15.04.2015, the application has been made for getting appointment on compassionate ground sent through registered post as has been referred by the Conciliation Officer in the failure report dated 06.07.2017 as contained under Annexure-4, therefore, that part of the matter is to be tested by the adjudicator. It may be that the said application would have also made after the period of limitation or within the period of limitation but a conscious finding is required that can only be done by adjudicator by allowing the parties to lead the evidence, and therefore, the judgment referred in the impugned order is not applicable in the facts and circumstances of the instant case. 13. This Court after following the ratio laid down in the case of Telco Convoy Drivers (supra) and looking to the scope of Section 10(1) of the I.D. Act, 1947 as discussed hereinabove is of the view that the authorities while passing the impugned order dated 21.03.2018 has passed the order mechanically by putting reliance upon the judgment rendered in the case of Nedungadi Bank Ltd. (supra) without verifying the factual aspect involved in the aforesaid case with that of the instant case since there is no reasoning to that effect in the impugned order. 14. In view thereof, order dated 21.03.2018 is not justified and as such the same is quashed. 15. In consequence thereof, the matter is being remitted before the competent appropriate Government to take a fresh decision in accordance with law within a period of 08 weeks from the date of receipt of copy of the order. 16. Accordingly, the writ petition stands disposed of.