1. The petitioner, an establishment which is admittedly closed, has called in question the first respondent's order dated 28.11.2024 under Section 10(1) of the Industrial Disputes Act, 1947 [for short, 'the ID Act'] referring a dispute raised by the second respondent to the first respondent. The first respondent's order is dated 28.11.2024, and it is produced as Annexure-L. The Labour Court has consequentially registered proceedings in Reference No.23/2024. The petitioner has impugned these proceedings as well.

2. Sri Deepak Bhaskar, the learned counsel for the petitioner, has submitted before this Court on the previous hearing date that, given the petitioner's primary grievance with the order dated 28.11.2024 [Annexure-L] because it is without due opportunity, he would request this Court to quash the order dated 28.11.2024 [and proceedings in Reference No.23/2024] and restore the proceedings to the first respondent to hear the petitioner. The learned counsel has canvassed that the petitioner's right to be heard must be examined in the light of the earlier Endorsement dated 21.07.2022 [Annexure-E] issued by the first respondent informing the petitioner and the second respondent that there need not be a reference.

3. Sri Deepak Bhaskar has relied upon the following two decisions to contend that the Government’s power to refer an industrial dispute, if there is any, under Section 10 of the ID Act is inexhaustible and a reference can be made despite an earlier decision to the contrary, and that if the earlier decision is to be re-visited, there must be due opportunity. The decisions relied upon by the learned counsel are:

•  M/s Avon Services [Production Agencies] Private Limited vs. Industrial Tribunal - [1979] 1 SCC 1.
• Management of Theatre Sanjaya vs. State of Karnataka and others - ILR 1984 Kar. 535.

4. Sri N.G. Phadke, the learned counsel for the second respondent, submits that he could endeavor to persuade this Court to opine that there is an existing industrial dispute, and therefore, a reference in terms of the impugned order dated 28.11.2024 is well founded, but for an expedited decision, he would acknowledge that the petitioner must be heard by the first respondent before a decision is taken on whether there must be a reference under Section 10 of the ID Act. The learned counsel proposes to rely upon the circumstances such as that the earlier decision was based only on a report without examining whether the petitioner has secured mandatory approval from the Government for closing its establishment. 

5. Sri N.G. Phadke further submits that he would request this Court to record that, according to the second respondent, the petitioner cannot dispute the existence of the industrial dispute because of the afore two circumstances and with liberty to place on record all other circumstances as it would justify such stand. The learned Counsel urges that this Court must, while restoring the proceedings for reconsideration by the first respondent on whether there should be a reference based on the opinion about the existence of an industrial dispute,

• fix an outer limit within which the first respondent must take a decision,
• permit the second respondent to be represented by a learned counsel in the proceedings before the first respondent and this Court must observe that the question of making a reference must be considered in the light of a decision by the Division Bench in Mypower Mazdoor Welfare Union vs. The Secretary and Commissioner and Another1 inviting this Court's attention to paragraph - 6 which reads as under:

On the basis of various pronouncements made by the Apex Court and this Court it can be safely held that:

(a) Making of reference is obligatory upon the appropriate Government where the existence or apprehension of an industrial dispute is prima facie established.

(b) In exercise of its powers the appropriate Government exercises the administrative function and not a judicial or quasi judicial function

(c) The appropriate Government is not empowered to decide the merits of industrial dispute under the grab of giving reasons for refusal to make reference.

(d) Appropriate Government cannot decide disputed questions of fact;

(e) The dispute regarding the existence of the dispute between employer and the employee and their relationship cannot be adjudicated.

(f) As no period of limitation is prescribed for making the reference, the appropriate Government has no power to reject a claim merely on the ground of the same being belated or stale.

(g) The questions of law sought to be adjudicated cannot be determined by the Government while deciding the question of making reference under Section 10 of the Act.

Sri N.G. Phadke lastly submits that this Court may also consider issuing direction to the petitioner to preserve the records [as available with the petitioner today] on the employment of the workmen, the wages paid and the settlement made.

6. In rejoinder, Sri Deepak Bhaskar submits that he would not object to the request for a time bound consideration by the first respondent or the request to be assisted by a legal counsel in the proceedings before the first respondent or for consideration of making a reference under Section 10 of the ID Act in light of the decision that is relied upon, but he would request this Court to clarify that the petitioner must maintain the records as regards the number of working employees, salary paid and settlement made as of the date because he cannot make a statement on the documents that should be for the period prior.

7. This Court must observe that these submissions by Sri. Deepak Bhaskar and Sri.N.G.Phadke narrow down the controversy and the petition must be disposed of quashing Annexure-L dated 28.11.2024 calling upon the first respondent to reconsider the question of reference in the light of the law that is enunciated by the Courts in the facts of the case while providing for a time bound disposal. Hence, the following:

ORDER

A] The petition is allowed-in-part, and the impugned order dated 28.11.2024 [Annexure-L] and the consequential proceedings initiated by the Labour Court in Reference No.23/2024 are quashed, but the proceedings are restored to the first respondent for reconsideration of making a reference under Section 10 of the ID Act upon hearing both the petitioner and the second respondent.

[B] The first respondent shall allow both the petitioner and the second respondent to be represented by their respective representatives/legal counsels

[C] The petitioner and the second respondent, without further notice, shall appear before the first respondent on 19.03.2025 and the first respondent shall take a decision on making a reference in the light of this Court's observation by 30.04.2025.

[D] The petitioner is called upon to ensure that the records as regards the employment of the workmen, the details of the wages paid and the settlement made available as of today shall not be destroyed.

[E] It is needless to observe that all aspects on the existence of an industrial dispute to make a reference is left open to be considered.