Full Judgment Text
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CASE NO.:
Appeal (civil) 6473 of 2005
PETITIONER:
Assistant Engineer, C.A.D., Kota
RESPONDENT:
Dhan Kunwar
DATE OF JUDGMENT: 05/07/2006
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Appellant calls in question legality of the judgment
rendered by a Division Bench of the Rajasthan High Court,
Jaipur Bench, dismissing the appeal filed by the appellant-
State questioning correctness of the judgment rendered by a
learned Single Judge.
A brief reference to the factual aspects as highlighted by
the appellant would suffice:
The respondent (hereinafter referred to as the ’workman’)
was appointed on 1.1.1978 as work-charged employee on
temporary basis. Subsequently, she was declared quasi-
permanent in service and worked up to 30.5.1983. Appellant
terminated her service after paying one month’s salary in
terms of Rule 26 of Rajasthan Public Works Department
(Buildings and Roads) including Gardens, Irrigation, Water-
Works and Ayurvedic Departments, Work-charged Employees
Service Rules, 1964 (in short the ’Rules’). After about eight
years dispute was raised by the respondent-workman.
Initially no reference was made by the State Government.
Subsequently, a reference was made to the Labour Court,
Kota, Rajasthan, under Section 10(1) of the Industrial
Disputes Act, 1947 (in short the ’Act’). The reference was to
the effect as to whether the employer was justified in
retrenching the respondent. Several points were urged by the
present appellant questioning legality of the reference.
Primary stand related to the closure of the section of the
Irrigation Department where the respondent was working. It
was emphasized that the reference was sought for after a very
long period of time i.e. about eight years. On both counts, it
was submitted, that reference has to be answered against the
workman and in favour of the employer. The Labour Court
was of the view that though the claim was delayed, and so was
the reference, yet the respondent-workman was not to be
denied the benefits. It was held that Rule 26 of the Rules was
similar in terms to Section 25F(a) of the Act. Even if the said
provision of the Act is complied with, there was no compliance
with the requirement of Section 25F(b), therefore, the reference
was held maintainable and direction for payment of 30% back
wages was given, along with direction for reinstatement.
Questioning correctness of the award a writ petition was
filed before the High Court. Learned Single Judge dismissed
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the same holding that merely because the claim was raised
after about eight years, that did not disentitle the workman to
get relief and the Labour Court was justified in awarding only
30% back wages. The orders of the Labour Court and the
learned Single Judge were questioned by filing appeal before
the Division Bench. By the impugned order the same was
dismissed.
In support of the appeal, learned counsel for the
appellant submitted that highly belated claim should not have
been entertained by the Labour Court, particularly when the
concerned section of the Irrigation Department has been
abolished and there was no post for reinstating the
respondent-workman.
Per contra, learned counsel for the respondent-workman
submitted that even if it is held that the claim was after long
lapse of time, that cannot disentitle the workman from his
legitimate entitlements. The right view has been taken by the
Labour Court by awarding only 30%.
It may be noted that so far as delay in seeking the
reference is concerned, no formula of universal application can
be laid down. It would depend on facts of each individual case.
However, certain observations made by this Court need
to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty
and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as
follows:
"6. Law does not prescribe any time-limit for
the appropriate Government to exercise its
powers under Section 10 of the Act. It is not
that this power can be exercised at any point
of time and to revive matters which had since
heel) settled. Power is to be exercised
reasonably and in a rational manner. There
appears to us to be no rational basis on which
the Central Government has exercised powers
in this case after a lapse of about seven years
of the order dismissing the respondent from
service. At the time reference was made no
industrial dispute existed or could be even said
to have been apprehended. A dispute which is
stale could not be the subject-matter of
reference under Section 10 of the Act. As to
when a dispute can be said to be stale would
depend on the facts and circumstances of each
case. When the matter has become final, it
appears to us to be rather incongruous that
the reference be made under Section 10 of the
Act in the circumstances like the present one.
In fact it could be said that there was no
dispute pending at the time when the reference
in question was made. The only ground
advanced by the respondent was that two
other employees who were dismissed from
service were reinstated. Under what
circumstances they were dismissed and
subsequently reinstated is nowhere
mentioned. Demand raised by the respondent
for raising an industrial dispute was ex-facie
bad and incompetent."
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In S.M. Nilajkar and Ors. v. Telecom District Manager,
Karnataka (2003 (4) SCC 27) the position was reiterated as
follows: (at para 17)
"17. It was submitted on behalf of the
respondent that on account of delay in raising
the dispute by the appellants the High Court
was justified in denying relief to the
appellants. We cannot agree. It is true, as held
in M/s. Shalimar Works Ltd. v. Their Workmen
(supra) (AIR 1959 SC 1217), that merely
because the Industrial Disputes Act does not
provide for a limitation for raising the dispute
it does not mean that the dispute can be
raised at any time and without regard to the
delay and reasons therefor. There is no
limitation prescribed for reference of disputes
to an industrial tribunal, even so it is only
reasonable that the disputes should be
referred as soon as possible after they have
arisen and after conciliation proceedings have
failed particularly so when disputes relate to
discharge of workmen wholesale. A delay of 4
years in raising the dispute after even
reemployment of the most of the old workmen
was held to be fatal in M/s. Shalimar Works
Limited v. Their Workmen (supra) (AIR 1959
SC 1217), In Nedungadi Bank Ltd. v. K.P.
Madhavankutty and others (supra) AIR 2000
SC 839, a delay of 7 years was held to be fatal
and disentitled to workmen to any relief. In
Ratan Chandra Sammanta and others v.
Union of India and others (supra) (1993 AIR
SCW 2214, it was held that a casual labourer
retrenched by the employer deprives himself of
remedy available in law by delay itself, lapse of
time results in losing the remedy and the right
as well. The delay would certainly be fatal if it
has resulted in material evidence relevant to
adjudication being lost and rendered not
available. However, we do not think that the
delay in the case at hand has been so culpable
as to disentitle the appellants for any relief.
Although the High Court has opined that there
was a delay of 7 to 9 years in raising the
dispute before the Tribunal but we find the
High Court factually not correct. The
employment of the appellants was terminated
sometime in 1985-86 or 1986-87. Pursuant to
the judgment in Daily Rated Casual Employees
Under P&T Department v. Union of India
(supra) (AIR 1987 SC 2342), the department
was formulating a scheme to accommodate
casual labourers and the appellants were
justified in awaiting the outcome thereof. On
16-1-1990 they were refused to be
accommodated in the scheme. On 28-12-1990
they initiated the proceedings under the
Industrial Disputes Act followed by conciliation
proceedings and then the dispute was referred
to the Industrial Tribunal cum-Labour Court.
We do not think that the appellants deserve to
be non suited on the ground of delay."
In the background of what has been stated above, the
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Labour Court should not have granted relief. Unfortunately,
learned Single Judge and the Division Bench did not consider
the issues in their proper perspective and arrived at abrupt
conclusions without even indicating justifiable reasons.
Above being the position, the appeal is bound to succeed
and we direct accordingly. No costs.
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