ORDER : 1. In all these petitions, the employer has challenged the order of Ministry of Labour & Employment, Government of India, passed under Clause (d) of sub-section 1 of Sub-section 2(A) of Section 10 of the Industrial Disputes Act, by which, the Central Government thought it desirable to refer the dispute as to whether the action of the Management in terminating / discontinuing the services of the respondent – workman with effect from 01.11.1999 was legal, just and proper to the Industrial Tribunal. 2 Mr.Yogen Pandya, learned counsel for the petitioner, would assail the order passed under Section 10 on the ground that it is admittedly the case of the respondent No.3 that his services were terminated on 01.11.1999 and the dispute regarding such termination has been raised after a period of 18 years. He would submit that though limitation may not apply stricto senso to the provisions of the Industrial Disputes Act, in the present case since there is a delay of more than 18 years, the orders of referring the dispute under Section 10 of the Industrial Disputes Act deserves to be quashed and set aside. 2.1 In support of his submission, Mr.Pandya, learned advocate, would rely on the decision in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division-Kota vs. Mohanlal., reported in 2013 (14) SCC 543 and the decision of the Hon’ble Supreme Court in the case of Prabhakar vs. Joint Director, Sericulture Department & Anr., reported in 2015 (15) SCC 1 . 3 Opposing the petition, Mr.Rushabh Munshaw, learned counsel for respondent No.3, apart from relying on the affidavit in reply would submit that the petition deserves to be dismissed in limine. The orders under Section 10 passed by the Union of India are completely administrative in nature which cause no prejudice to the petitioner. While referring a dispute under Sec.10 of the Industrial Disputes Act, the authority has only carried out the administrative duty and the order being administrative in nature of merely refering the dispute with regard to illegal termination of respondent No.3, discretion under Article 226 of the Constitution of India in favour of the petitioner need not be entertained. While referring a dispute under Sec.10 of the Industrial Disputes Act, the authority has only carried out the administrative duty and the order being administrative in nature of merely refering the dispute with regard to illegal termination of respondent No.3, discretion under Article 226 of the Constitution of India in favour of the petitioner need not be entertained. He would submit that the only function that the Government is expected to undertake under Sec.10 of the Industrial Disputes Act is to refer the dispute without entering into the merits of the matter and once the dispute is referred, the Labour Court or the Tribunal to which the dispute is referred to, would determine the dispute and mould the relief in favour of the employee at the stage when final relief has to be granted to the workman. He would submit that if given an opportunity, he would satisfy the Court by filing an additional affidavit as to why and how the delay has occurred in raising the dispute, which will not prejudice the petitioner. 3.1 In support of his submission, Mr.Rushabh Munshaw, learned advocate, would rely on a decision in the case of Ralchem Limited vs. Ajit Balkrishna Kadu & ors., reported in 2012 (1) LLJ 753 . Reliance was placed on paragraphs 14 to 17 of the judgement in support of his submission that the authority while referring the dispute under Sec.10 exercises administrative powers. It is not open for the petitioner to challenge in this petition an administrative order, because it does not decide the rights of the either parties. 3.2 Mr.Munshaw, learned advocate, would submit that once the appropriate Government has taken a decision to refer the dispute, that being an administrative function, and once the government having limited jurisdiction not to delve into the merits of the dispute, no exception can be found in the decision so as to warant interference in exercise of powers under Article 226 of the Constitution of India. Reliance was also placed on the decision of the Division Bench of the Delhi High Court in the case of D.D.Gears Ltd. vs. Secretary (Labour) & Ors., reported in 2005 SCC Online Del 1386. Pointed attention of the Court was drawn to paragraph 12 of the decision. Reliance was also placed on the decision of the Division Bench of the Delhi High Court in the case of D.D.Gears Ltd. vs. Secretary (Labour) & Ors., reported in 2005 SCC Online Del 1386. Pointed attention of the Court was drawn to paragraph 12 of the decision. 4 On the question of the authority exercising powers under Sec.10 of the Act, and whether it is open for such authority in exercise of administrative powers to refer any dispute without considering it to be one which is live or has become stale was extensively considered by the Hon’ble Supreme Court in the decision of Prabhakar (supra). Perusal of the facts before the Hon’ble Supreme Court would indicate that the petitioner therein was terminated from his service on 01.04.1985. An industrial dispute was raised only in the year 1999 i.e. after a period of more than 14 years. The High Court held that there was no “Live Dispute”. In the opinion of the High Court even when no period of limitation is provided for raising the disputes under the Industrial Disputes Act, 1947 and the provisions of the Limitation Act, 1963, are not applicable, there could not have been a reference at such a belated stage. The High Court was of the opinion that after a lapse of such abnormal time, the dispute ceases to exist and the appropriate government, therefore, had no jurisdiction to make a reference of a non existent dispute. 4.1 It was this dispute of the High Court that was tested before the Hon’ble Supreme Court in the case on hand. Considering the submission of the learned counsel appearing for the workman there where reliance was placed on the decision in the case of Raghubir Singh vs. General Manager, Haryana Roadways, reported in 2014 (10) SCC 301 , the Hon’ble Supreme Court went ahead to discuss the powers of the appropriate government under Sec.10 of the Act in referring or refusing to refer the dispute for adjudication. Reading para 12 of the decision in the case of Prabhakar (supra), would indicate that the Hon’ble Supreme Court was of the opinion that the authority must arrive at a satisfaction of the existence of an industrial dispute. That is a condition precedent to the order of reference since the order cannot be mechanically made without forming an opinion. Reading para 12 of the decision in the case of Prabhakar (supra), would indicate that the Hon’ble Supreme Court was of the opinion that the authority must arrive at a satisfaction of the existence of an industrial dispute. That is a condition precedent to the order of reference since the order cannot be mechanically made without forming an opinion. 5 After reference to several decisions cited by the learned counsels for the respective parties which have been extensively considered by the Hon’ble Supreme Court in para 28 of the judgement, the Court held as under: “28. The aforesaid case law depicts the following: 28.1 The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. 28.2 The words “at any time” used in Section 10 would support that there is no period of limitation in making an order of reference. 28.3 At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused. 28.4 Whether dispute is alive or it has become stale / non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference.” 6 The Hon’ble Supreme Court held that while referring the dispute for adjudication, the appropriate government has to keep in mind that whether the dispute is still existing or is a live dispute and has not become stale and if that is so, the reference can be refused. The legal position was then summarized in paras 42 and 44 which read as under: “42) On the basis of aforesaid discussion, we summarise the legal position as under: 42.1 An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. The words 'industrial dispute exists' are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. 42.2 Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. 42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred. 42.4 Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. 42.5 Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. 42.5 Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. 42.6 In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no “industrial dispute” within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted. 43) We may hasten to clarify that in those cases where the court finds that dispute still existed, though raised belatedly, it is always permissible for the court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the court to either grant reinstatement without backwages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 44) To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry.” 7 The Hon’ble Supreme Court in the decision in the case of Prabhakar (supra), considered the submission made in line with the submission made by Mr.Munshaw, learned advocate, that delay may not prejudice the party, namely, the petitioner. However, the Hon’ble Supreme Court held that if a party having right stands by and ceases in their acting in a manner inconsistent with that right and makes no objection while the Act is in progress, he cannot afterwards complaint. The Court held that delay and laches can on the basis of the principle of equity and sound public policy presume that if a person does not exercise his right for a long time then such a righ is non existent. It is based on this legal principle that the Hon’ble Supreme Court in para 42 which has been reproduced above held thus. 8 Since the decision in the case of Prabhakar (supra) would squarely apply to the facts of the case in the present petitions, the orders of the respondent, Union of India, dated 13.12.2018 in all these petitions are hereby quashed and set aside. The petitions are allowed, accordingly.