JUDGMENT : M. K. Thakker, J. 1. Rule returnable forthwith. Learned AGP Ms.Surbhi Bhati waives service of notice of Rule on behalf of respondent no.1 and 2. 2. With the consent of both the parties, this matter was heard finally. 3. This petition is filed under Article 226 and 227 of the Constitution of India with following prayers: Your Lordships may be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the award and order dated 19.03.2022 passed by Ld. Labour Court in Reference (LCA) No. 37 of 2014 is prima facie illegal, improper, arbitrary and contrary to the evidence on record as well as contrary to the facts of the present case, and be pleaseto quashed and set aside the same. 4. Brief facts arising for consideration of this petition is that petitioner was working with the respondent as a part time employee form the year 1991 to1996 and thereafter from 1996 to 2004 petitioner worked for District Panchayata, Bhadra, Ahmedabad and upto 07.03.2006 petitioner worked with the office of the Director of Archaeology Department. The petitioner as per the statement of claim was working for more than 8 hours and was paid salary at the rate of Rs.1350/-. The petitioner was disengaged from the services from 08.03.2006 and by challenging the termination order, the writ petition was filed before this Court being SCA No.23348/2006. This Court vide order dated 21.11.2006 directed the petitioner to make a representation and the respondent-Authority were directed to consider the same within a period of two months. Thereafter, as per the case of the petitioner representation was made on 07.12.2006 however, the same was remained unattended. Ultimately in the year 2013 the petitioner raised grievance before the Conciliation officer i.e the Assistant Labour Commissioner in the year 2013 and the dispute was referred to the labour court and was numbered being reference (LCA) No.37/2014. Learned labour court after considering the arguments advanced by the learned advocates for the respective parties has framed four issues as follows: 1. Whether delay has been properly explained while filing reference? 2. Whether the second party has proved that the service were terminated in breach of the provisions of ID Act? 3. Whether the second party is entitled for award of reinstatement alongwith all consequential benefits to his original post? 4. What order? 5. Whether delay has been properly explained while filing reference? 2. Whether the second party has proved that the service were terminated in breach of the provisions of ID Act? 3. Whether the second party is entitled for award of reinstatement alongwith all consequential benefits to his original post? 4. What order? 5. At the end, learned labour court has decided first issue i.e that whether delay has been properly explained in filing the reference and answer was given in negative form and thereafter the remaining issues were remain undecided and the reference came to be rejected only on the ground of delay which is subject matter of challenge before this Court. 6. Heard learned advocate Mr.P.C.Chaudhari for the petitioner and learned AGP Ms.Surbhi Bhati for the respondent. 6.1. Learned advocate Mr.P.C.Chaudhari submits that after the order passed by this Court dated 21.11.2006 the representation were made however, the same remained unattended and though it was contended by the respondent before the learned labour court that the reply was given and same was received, no contemporaneous record was produced supporting that contention. Learned advocate Mr.P.C.Chaudhari submits that infact, learned labour court has committed error in recording that reply which is produced below mark 23/2 has been received by the present petitioner. Learned advocate Mr.P.C.Chaudhari submits that the reply which is filed before this Court wherein it is contended that reply of the representation was sent through RPAD, however, no acknowledgment slip was produced show that same is received by present petitioner. Learned advocate Mr.P.C.Chaudhari submits that even if learned labour court comes to the conclusion that there is a delay in preferring the reference but then also with regard to the other issue adjudication was required which was not done by the learned labour court. Learned advocate Mr.P.C.Chaudhari submits that by recording contrary facts and only on the ground that reply of the representation was received by the present petitioner, reference was held time barred. Learned advocate Mr.P.C.Chaudhari submits that there is no limitation for filing the reference, however, considering the preset case it cannot be said that reference was filed after undue delay of 6 years. Learned advocate Mr.P.C.Chaudhari submits that though the representation was made, orally request was also made but all requests went in vain and therefore, ultimately, reference was made before the learned labour court. Learned advocate Mr.P.C.Chaudhari submits that though the representation was made, orally request was also made but all requests went in vain and therefore, ultimately, reference was made before the learned labour court. Learned advocate Mr.P.C.Chaudhari further submits that learned labour court has committed error in not deciding the reference on its merits and therefore order passed by the learned labour court requires to be challenged and petition is required to be allowed. 6.2. On the other hand, learned AGP Ms.Surbhi Bhati submits that the petition has not worked with the present respondent-Authority i.e Archaeology Department since 1987. Learned AGP Ms.Surbhi Bhati submits that as the reference was filed after the period of six years therefore, learned labour court has rightly rejected the reference. Learned AGP Ms.Surbhi Bhati has relied on the decision rendered by the Apex Court in the case of Assistant Engineer CAD Quota vs. Dhankuwar reported in 2006 5 SCC 481 and submitted that the power allowing the reference is to be exercised reasonably and not in a casual manner. After lapse of six years, the reference is preferred without giving any reasonable cause thereof labour court is justified in dismissing the reference on the ground of delay. Learned AGP Ms.Surbhi Bhati submits that no error has been committed by the learned labour court in dismissing the reference and therefore, no interference is required and petition is required to be dismissed. 7. Considering the submission made by the learned advocates for the respective parties it transpires that as per the claim of the present petitioner it is undisputed fact that present petitioner was working with the respondent from 1987 to 1990 on the post of peon as a daily wager and from 1991 to 1996 as part time employee and thereafter form 2004 to 07.03.2006 again worked with the present respondent-department. It is also not under the dispute that the service of the present petitioner was put an end to on 07.03.2006 without following the procedure prescribed under the ID Act. Challenging the termination order the petition which was preferred before this Court was disposed of on 21.11.2006 with direction to make a representation and the respondent-Authority was also directed to decide the same within a period of two months. The dispute with regard to the reply of the representation which was considered by the learned labour court while assigning the reasons. The dispute with regard to the reply of the representation which was considered by the learned labour court while assigning the reasons. Learned labour has concluded that reply which is produced below Exh.23 is received by the present petitioner however, the reply which is filed before this Court wherein, it is stated that it was sent though RPAD but no acknowledgment slip was produced before the Court. It suggests that the finding which are recorded by the learned labour court that reply is received appears is contrary to the facts stated in reply by respondent herein. In addition to that though several issues were framed by the learned labour court to decide the reference only first issue was decided and answered in negative form. 8. At this stage, the decision rendered by this Court in the case of Dhanjibhai Bhanabhai Vs State of Gujarat is required to be considered, the relevant paragraphs are reproduced hereinbelow: “11. We have heard the learned advocates appearing for the parties and we have also gone through the material produced on record as well as the decisions upon which the reliance is placed by the learned advocates for the applicant. From the record, it is revealed that the Labour Court passed an Award on 29.11.2014 in Reference (LCB) No. 48 of 2013 by which the Labour Court directed the respondent authorities to reinstate the applicant workman with continuity of service with 20% back-wages. The said award was challenged by the present respondents by filing Special Civil Application No.9902 of 2015. The learned Single Judge, by an order dated 13.06.2016, allowed the said petition and thereby quashed and set aside the Award passed by the Labour Court, against which, the present applicant preferred Letters Patent Appeal No.906 of 2016. This Court, by an order dated 03.10.2016, dismissed the said Letters Patent Appeal and therefore the applicant has filed the present application for review of the order dated 03.10.2016 passed in the aforesaid Letters Patent Appeal. 12. In the order dated 03.10.2016, this Court recorded the submissions canvassed by the learned advocates appearing for the present applicant that the learned Single Judge has quashed and set aside the Award passed by the Labour Court mainly on the ground that there was delay of 14 years in filing the Reference which was fatal and the dispute was not existed. This Court also recorded the submission of the learned advocate for the present applicant that if the respondent Nos. 1 to 3 – original petitioners were aggrieved by the factum of delay in making the reference, it was essentially for them to challenge the order of making reference by the competent authority when the same was made to the Labour Court. Therefore, it was contended that it would not be proper on the part of the original petitioners – respondent authorities herein to raise the contention with regard to delay in filing the reference. 13. It is required to be noted that this Court in the order dated 03.10.2016 recorded the finding with regard to the delay caused in filing the reference. However, the submission of the learned advocate for the applicant with regard to not challenging the order of making reference by the competent authority when the same was made to the Labour Court by the present respondents – original petitioners is not dealt with. 14. In view of the above, we are of the view that learned advocate for the applicant is right in submitting that there is an error apparent on the face of the record while passing the order dated 03.10.2016 in the aforesaid Letters Patent Appeal. Accordingly, the said order is required to be recalled. 15. In the case of Shahaji (supra), the Hon’ble Supreme Court observed that when the reference was made after 16 years from the date of termination of service of the workman and Labour Court did not entertain the reference on the ground of delay, however, if Labour Court comes to the conclusion that termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay. However, the reference cannot be rejected on the ground of delay. 16. In the case of S. M. Nilajkar (supra), the Hon’ble Supreme Court observed that the concerned workman initiated the proceedings under the Industrial Disputes Act followed by the conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court, the workman should not be non-suited on the ground of delay. 17. In the case of Ajaib Singh v. The Sirhind Cooperative Marketing-cum-Processing Service Society Ltd., reported in AIR 1999 SC 1351 , the Hon’ble Supreme Court has observed in para 11 and 12 as under: “11. 17. In the case of Ajaib Singh v. The Sirhind Cooperative Marketing-cum-Processing Service Society Ltd., reported in AIR 1999 SC 1351 , the Hon’ble Supreme Court has observed in para 11 and 12 as under: “11. In the instant case, the respondent management is not shown to have taken any plea regarding delay as is evident from the issues framed by the Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings were therefore, unjustified. The High Court was also not justified in holding that the Courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing that "it is true that a fight between the workman and the management is not a just between equals," the Court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment. The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the Labour Court which was not permissible in proceedings under Articles 226/227 of the Constitution. 12. We are, however, of the opinion that on account of the admitted delay, the Labour Court ought to have appropriately moulded the relief by denying the appellant-workman some part of the back wages. 12. We are, however, of the opinion that on account of the admitted delay, the Labour Court ought to have appropriately moulded the relief by denying the appellant-workman some part of the back wages. In the circumstances, the appeal is allowed, the impugned judgment is set aside by upholding the award of the Labour Court with modification that upon his reinstatement the appellant would be entitled to continuity of service, but back wages to the extent of 60 per cent with effect from 8-12-1981 when he raised the demand for Justice till the date of award of the labour Court i.e. 16-4-1986 and full back wages thereafter till his reinstatement would be payable to him. The appellant is also held entitled to the costs of litigation assessed at Rs. 5,000/- to be paid by the respondent management. Appeal allowed.” 18. In the case of M/s. Atlas Cycle (Haryana) Ltd. (supra), the Hon’ble Supreme Court has held in para 11 as under: “11. We are satisfied that the learned single Judge throughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellant Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.” 19. Keeping in view the aforesaid decisions, if the facts of the present case are examined, it transpires that the applicant workman had worked with the respondent authorities during the period between November, 1987 to November, 1999. On 30.11.1999, his services came to be terminated. Thereafter, demand notice was issued by the applicant – workman on 26.02.2013. Keeping in view the aforesaid decisions, if the facts of the present case are examined, it transpires that the applicant workman had worked with the respondent authorities during the period between November, 1987 to November, 1999. On 30.11.1999, his services came to be terminated. Thereafter, demand notice was issued by the applicant – workman on 26.02.2013. When the reply was not given, applicant filed a complaint before the Assistant Labour Commissioner, Bhavnagar and thereafter dispute was referred to the Labour Court, Bhavnagar. It is not in dispute that the present respondents did not challenge the order of making reference to the Labour Court by filing appropriate proceedings before the appropriate Court. It is true that there was a delay of 14 years in raising the dispute. However, from the record, it is revealed that dispute was existed as after terminating the services of the applicant, his juniors were continued and even thereafter new workers were employed by the respondents. Thus, the dispute was alive. 20. Learned advocate Mr. Trivedi is right in submitting that if the respondents were aggrieved by the factum of delay in making reference, it was for them to challenge the order of making reference by the competent authority when the same was made to the Labour Court. Thus, when the order of making reference was not challenged by the respondents, said aspect is also required to be considered while deciding the issue involved in the matter. 21. It is true that there was delay of 14 years in making the reference before the Labour Court and therefore while granting the relief in favour of the workman, the said aspect is required to be considered. The Labour Court has awarded 20% back-wages. However, during the course of submissions, learned advocate for the applicant has fairly submitted that this Court may also mould the relief while allowing the present review application. 22. In view of the aforesaid discussion and in view of the facts and circumstances of the present case, we are of the view that the learned Single Judge has committed an error while allowing the petition filed by the present respondents and thereby quashing and setting aside the Award passed by the Labour Court. However, in the facts and circumstances of the present case, the applicant is not entitled for the back-wages. However, in the facts and circumstances of the present case, the applicant is not entitled for the back-wages. Hence, the Award passed by the Labour Court as well as the order passed by the learned Single Judge are required to be modified. 23. In view of the above, Misc. Civil Application for review is allowed. Order dated 03.10.2016 passed in Letters Patent Appeal No.906 of 2016 is recalled. Letters Patent Appeal is partly allowed. Respondents are directed to reinstate the applicant with continuity of service but without any back-wages.” 9. This court is of the view that by not adjudicating the disputes on merits the learned labour court has committed error and therefore, the reference is required to be remanded back to the learned labour court. The judgment which was relied by learned AGP MS.Bhati wherein the facts was that section of irrigation department was closed and one month notice was issued before terminating the service. In that background learned Apex court has held that without offering reasonable explanation learned labour court has committed error in allowing the reference, however, in that case also it was observed by the Apex Court that whether dispute is stalled or alive depends on facts of each case. 10. In view of the above, this petition is partly allowed. The reference is remanded back to the learned labour court for deciding it on merits and the same shall be decided by the learned labour court within a period of six months from today. Learned labour court may provide reasonable opportunity to both the parties to lead their evidence. This Court has not given any opinion on merits. It is open for the learned labour court to consider the case on merits. 11. Rule made absolute to the above extent.