Akil Abdul Hamid Kureshi, J.

1. xxx xxx xxx.

2. The facts leading to the present petition are that the petitioner was engaged by the respondent No. 3 on 2-7-1996 for collection of house-tax at a fixed salary of Rs. 1,000/- per month, initially for a period of 3 months. The said appointment continued from time to time and the petitioner continued to discharge the said duties upto 1-4-1997, when his services came to be terminated. The petitioner approached the respondent No. 3 by writing a letter dated 29-12-2002 and demanded that he be reinstated in service, failing which he will approach the Deputy Labour Commissioner. In his letter dated 29-12-2002, the petitioner had also stated that he was approaching personally from time to time and he was told that he will be reinstated in service. The petitioner had also stated that the action of termination of his services is illegal; that he had worked for more than 240 days. He has also stated that the work which he was doing continues even today and is being done by new persons who were engaged after the services of the petitioner were terminated.

3. The petitioner thereafter appears to have approached the Deputy Labour Commissioner, as can be seen from the copy of approach letter produced at page No. 16 of the petition. In the said letter, the petitioner has inter alia stated that after his services were terminated, the petitioner used to personally visit the office of the respondent No. 3 time and again and he was informed by the officers of the respondent No. 3 that the petitioner should wait for some time and that he would be taken back in service. Even after the respondent No. 3 was converted into a Municipality, the petitioner had met the officers and he was told that he should not file a case, and as new persons are required, petitioner will be engaged soon. The petitioner, has therefore, stated that on account of the above circumstances beyond his control there has been delay in raising the dispute, which may be condoned. The respondent No. 1, however, by his impugned communication dated 21-5-2003 was pleased to reject the said application on the ground that there has been a delay of six years which is not required to be condoned.

4. The learned Counsel for the petitioner has submitted that the petitioner had successfully explained delay caused in approaching the Conciliation Officer and that the respondent No. 1 has committed a serious error of law in rejecting the request of the petitioner to refer the dispute for adjudication to the Labour Court. He submits that the respondent No. 1 has in fact even refused to conciliate merely on the ground of delay. He submits that there is no limitation provided under the for the said purpose and therefore the action of the respondent is unjust and illegal, especially when the petitioner had explained the reasons for the delay.

4.1 to 5.1 xxx xxx xxx.

6. to 7. xxx xxx xxx.

8. In the decision of the Hon'ble Supreme Court in the case of The M.P. Irrigation Karmachari Sangh v. State of M.P. and Anr. reported in AIR 1985 S.C. 860. it has been observed that there may be exceptional cases in which the State Government may on a proper examination of the demand come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. The Hon'ble Supreme Court has held that the Government should be very slow to attempt an examination of demand with a view to decline reference and the Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. The Hon'ble Supreme Court in paragraph 7 of its judgment has observed as follows:

"There may be exceptional cases in which the State Government may on a proper examination of the demand come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render S. 10 and S. 12(S) of the Industrial Disputes Act nugatory."

9. Yet in another decision of the Hon'ble Supreme Court in the case of Sharad Kumar v. Govt. of NCT of Delhi and Ors. reported in AIR 2002 S.C. 1724, it is observed that where determination of any question requires examination of factual matters for which materials including oral evidence will have to be considered, the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of material placed before it by the parties.

10. In the decision reported in AIR 1989 S.C. 1565 (Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar) also the Hon'ble Supreme Court has observed that appropriate Government while considering question whether reference should be made or not cannot delve into merits of dispute and determine the lis itself.

11. In the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-processing Service Society Limited and Anr. reported in (1999) 6 S.C.C. 82, the Hon'ble Supreme Court has held that reference Linder Sections 10 and 33-C of the Industrial Disputes Act are not subject to limitation under Article 137 of the Limitation Act. In that case, in view of 7 years of delay in seeking reference regarding the termination of service, the Hon'ble Supreme Court while upholding the Labour Court's award for reinstatement and continuity of service limited the entitlement of the workman to 60% back wages.

12. As discussed above, the appropriate Government has extremely limited jurisdiction to refuse to refer an industrial dispute which is existing or apprehended and it is not open for the appropriate Government to decide the list between the parties and to terminate the dispute prematurely. In the present case, the question in fact valid disputes arises when the appropriate Government under Section 10(1) or 12(5) of the Industrial Disputes Act, has limited jurisdiction to refuse to refer the dispute for adjudication, can the conciliation officer exercising powers under Section 12(1) of the Industrial Disputes Act refuse to conciliate on the ground that the dispute is stale and that the explanation offered by the petitioner is not acceptable In a case where the Conciliation Officer had refused to conciliate between the parties on the ground that the workman was covered under the BCSR Rules and that therefore the Industrial Dispute Act did not apply, this court had made following observations in paragraphs 5 and 7:-

"5. I find that the Assistant Labour Commissioner has committed illegality in passing the impugned orders whereby it is stated that since BCS Rules are applicable to the petitioner, there is no industrial dispute which has arisen. I find that under Section 12 of the Industrial Disputes Act, the duties of the Conciliation Officer are set out, which include that of holding conciliation proceedings between the parties for the purpose of bringing about settlement of the disputes. The said section also provides that if settlement of the dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof to the appropriate Government. Sub-section (4) of the said section provides that if no settlement is arrived at, the Conciliation Officer shall send to the appropriate Government a full report including the facts and circumstances relating to the dispute as also the reasons on account of which in his opinion, the settlement could not be arrived at. Under sub-section (5) of Section 12 of the said Act, upon failure report being submitted by the Conciliation Officer under sub-section (4) of the said Section, if the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court or Tribunal, it may make such a reference. From the plain reading of the said provisions of the Industrial Disputes Act, it is clear that the only power that vests with the Conciliation Officer is that of holding the proceedings for the purpose of bringing about settlement of dispute between the parties and if no such settlement is possible, submit his report of failure to the appropriate Government. The Conciliation Officer does not have the power to adjudicate upon the dispute between the parties. It is held in number of decisions of the Hon'ble Supreme Court that even the appropriate Government, while considering the question whether an industrial dispute is to be referred for adjudication or not under Section 10 of the Industrial Disputes Act, cannot adjudicate the issues and decide the us between the parties (see AIR 1989 S.C. 1565 and AIR 1985 S.C. 860). If the appropriate Government cannot enter into the merits of the dispute sought to be raised by the workman, can a conciliation officer exercise such a power is the question and the answer has to be obviously in the negative."

"7. In the present case I find that the Conciliation Officer had misdirected himself in refusing to conciliate the issue on the ground that BCS Rules are applicable to the petitioner. What would be the effect of application of such Rules had got to be left for the competent Industrial Tribunal or the Labour Court to decide in case ultimately the dispute is decided to be referred by the appropriate Government. The Conciliation Officer at this stage cannot terminate the dispute prematurely by refusing to conciliate between the parties."

xxx xxx xxx.

Rule discharged.