SAPAN KUMAR PANDIT v. U.P. STATE ELECTRICITY BOARD AND ORS

Citation: [2001] 3 S.C.R. 1081

Court: Supreme Court of India

Bench: K.T. THOMAS, R.P. SETHI

Judgment text

SAPAN KUMAR PANDIT v. - --. The above section is almost in tune with Section 10 of the Industrial · ~ Disputes Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time limit is fixed for making the reference for a dispute for adjudication, could any'State Government revive a dispute which had submerged in stupor by long lapse of time and re-kindled by making. a reference ofit to adjudication? The words 'at any time' as used in the section are prima facie indicator to a period without boundary. < But such an interpretation making the power unending would be pedantic. There is inherent evidence in this sub-section· itself to indicate that the time has some circumscription. The words "where the Government' is of opinion. that any industrial dispute exists or is apprehended" have to be read in conjunction with the words 'at any time'. They are, in a way, complimentary to each other.

The Government's power to refer an industnal dispute for adjudication has thus one limitation of time and that is, it can be,_done only so long as the dispute exists. In other words, the period envisaged. by the enduring expression 'at any time' terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the . A reference was made by the Government it is i~le to ascertain the number of ,, years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference. 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 the. n 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 sectioq 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 r-1 dispute. In considering the factual position whether the dispute did exist on the date of reference the Government wuld take into account factors, inter alia, ,,. -( such as the subsistence of conciliation proceedings. It is of no consequence that conciliation proceedings were commenced after a long period.

But such conciliation proceedings are evidence of the existence of the industrial dispute. It is an admitted fact that on the date of reference in this case the conciliation proceedings were not concluded. If so, it cannot be said that the dispute did not exist on that day. The High Court relied on the following observations of the decision of ~ this Court in Mis. Shalimar Works Ltd. v. Their Workmen, AIR (1959) SC 1217: "It is true that there is no limitation prescribed for reference ofdisputes to an industrial tribunal; even so it is only reasonable that dispute should be referred as soon as possible after they have arisen and particularly so when disputes relate to discharge of workmen wholesale, as in this case. " The context for making the said observations is while dealing with the scope of Section 33A of the ID Act. It is a special provision for adjudication as to whether conditions of service have been changed by an employer ..

during the pendency of conciliation or other adjudicatory proceedings. An aggrieved person in such situation is given the right to make a complaint in writing to one of the authorities mentioned in the section. Evidently the "' context is different and hence the observations made by this Court in that context are not apposite so far as this case is concerned. 1· Learned counsel for the Board invited our attention to a recent decision of a two Judge Bench of this Court in Nedungadi Bank Ltd. v. K. P. \ Madhavankutty and Ors. , [2000] 2 SCC 455. No doubt in the said decision it is said that the power of the Government under Section 10 of the ID Act cannot be exercised at any point of time or for reviving the matters which have already been settled although law does not prescribe any time limit. The crux of the observations in the said decision is the following: ''. A dispute which is stale could not be the subject matter of reference under Section 10 of the ID Act.

As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. " . '-i It is useful to refer to a three Judge Bench decision of this Court as it related to the scope of the very same provision i. e. Section 4K of the U. P. Act. -1 In Mis. Western India Watch Co. Ltd v. The Western India Watch Co. Workers Union, AIR (1970) SC 1205 learned Judges made the following observations: "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 adjourned or in respect of which: there is an agreement or a settlement between the parties or where the industry in question is no longer in existence. " There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time.

But when the dispute remained alive though not galvanized by the worRmen or the Union on acc. ount of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for ),adjudication under Section 4K of the U. P. Act the High Court should not have quashed the reference. merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination. For the aforesaid reasons we allow this appeal and set aside the impugned judgment. A. K. T. Appeal allowed.