Full Judgment Text
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CASE NO.:
Appeal (civil) 4471 of 2001
PETITIONER:
SAPAN KUMAR PANDIT
Vs.
RESPONDENT:
U.P. STATE ELECTRICITY BOARD AND ORS.
DATE OF JUDGMENT: 24/07/2001
BENCH:
K.T. Thomas & R.P. Sethi
JUDGMENT:
THOMAS, J.
Leave granted.
A period of fifteen years is apparently too long a
range, even for a Government to make reference of industrial
dispute for adjudication. At the first blush it looks
inordinate a delay and so was felt by the High Court of
Allahabad which consequently quashed the reference order
passed by the Government solely on the ground of such delay.
The aggrieved workman has therefore approached this Court
challenging the aforesaid judgment of the High Court.
According to him the High Court should not have bypassed the
explanation offered by him as to why the Government did not
make a reference earlier.
Appellant was appointed as a clerk on 1.1.1974 in the
Electricity Distribution Division, Mathura of the U.P. State
Electricity Board (for short the Board). But his services
were terminated on 17.7.1975. He raised an industrial
dispute that the termination of his services was illegal.
The State Government by an order dated 29.3.1993 referred
the following dispute to the Labour Court for adjudication
as per Section 4.K of the U.P. Industrial Disputes Act (for
short the U.P. Act):
Whether termination of the appellant on
17.7.1975 by the employer was proper and
legal; if so, to what reliefs the workman is
entitled?
The Labour Court took up the reference as Adjudication
Case No.158 of 1993. The respondent Board filed a writ
petition before the Allahabad High Court assailing the
aforesaid reference order and also praying for quashing the
adjudication case pending in the Labour Court. The
appellant was arrayed as respondent No.5 in the said writ
petition. A single Judge of the High Court of Allahabad
took the view that the delay is so inordinate that the
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dispute has ceased to exist by efflux of time and hence no
reference under the U.P. Act should have been made.
Accordingly, the order of reference passed by the Government
was quashed by the High Court. Learned single Judge made
the following epilogistic remarks:
On consideration of various authorities, I
am of the view that normally a dispute which
is an industrial dispute be referred by the
State Government under Section 4-K of the
U.P. Industrial Disputes Act so long such a
dispute exists or the Government apprehends
that such a dispute is likely to exist.
However, in case there is undue and
inordinate as well as unexplained delay,
presumption may arise on the facts and
circumstances of a particular case that no
dispute exists in present and in such cases
the reference made by the Government may be
quashed. In the facts and circumstances of
the present case the respondent No.5 kept
silence for more than 15 years and he woke
up only after the petition of other co-
workmen was allowed and he made no efforts
to get his dispute referred to the
Industrial Tribunal or Labour Court. Now he
cannot be allowed to raise such a dispute
after lapse of such a long time.
It is not a case that appellant woke up at the end of
fifteen years like a Rip Van Winkle and raised an industrial
dispute. His version of what transpired during the long
interval needs to be mentioned here. It reads like this:
Along with the appellant the Board retrenched 10 other
workmen. Those 10 belonged to a union (U.P. Bijali
Karmachari Sangh, Mathura). The said union raised the
dispute on 16.9.1976 and the State Government referred the
matter to the Industrial Tribunal, Kanpur. The Board gave
an assurance to the appellant that in the event of any of
the claims of the 10 workmen was upheld by the Labour Court
the same benefit would be extended to the appellant, no
matter that he did not take up his cause to any legal forum.
By the time the Industrial Tribunal decided the case of 10
workmen the Board had re-absorbed two of them. However, the
Industrial Tribunal passed an award on 10.11.1979 holding
that those retrenched persons were entitled to retrenchment
compensation. The Tribunal further held that in view of the
liberalised policy of the Board the workmen concerned should
be given an opportunity to appear in the qualifying
examination by relaxing the age on the basis of their
initial date of appointment as could be seen from the muster
roll and if they succeeded in the examination they could be
considered for appointment against regular vacancies.
The Union was not satisfied with the said award. Hence
they filed a writ petition in 1980 before the High Court of
Allahabad. On 28.4.1988 the High Court allowed that
petition and held that the retrenchment was bad in law and
that they are entitled to be reinstated. Though the Board
filed a special leave petition in this Court it was
dismissed in 1989.
According to the appellant he was entertaining the
expectation that the Board would extend the same benefit to
him. He was persisting with his request to the Board that
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he should be treated on a par with the 8 workmen, some of
whom were re-employed by the Board. When appellant found
that this was not done he approached the Conciliation
Officer appointed by the State Government. But his
application for condoning the delay for initiating
conciliation proceeding was disallowed by the conciliation
officer. However, the Deputy Labour Commissioner went to
his rescue as the delay was condoned and the conciliation
proceedings were revived. This happened on 28.1.1992. It
was in the aforesaid background that the State Government
made the reference for adjudication on 29.3.1993. It is at
this stage we have to extract Section 4K of the U.P. Act.
4K. Reference of disputes to Labour Court
or Tribunal.- Where the State Government is
of opinion that any industrial dispute
exists or is apprehended, it may at any time
by order in writing refer the dispute or any
matter appearing to be connected with, or
relevant to, the dispute to a Labour Court
if the matter of industrial dispute is one
of those contained in the First Schedule, or
to a Tribunal if the matter of dispute is
one contained in the First Schedule or the
Second Schedule for adjudication:
Provided that where the dispute relates to
any matter specified in the Second Schedule
and is not likely to affect more than one
hundred workmen, the State Government may,
if it so thinks fit, make the reference to a
Labour Court.
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 of it 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 Governments power to refer an industrial
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 reference was made by the
Government it is idle 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 then the Governments power to
make a reference would have extinguished. On the other
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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 section 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 dispute.
In considering the factual position whether the dispute
did exist on the date of reference the Government could 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 M/s. Shalimar Works Ltd. vs.
Their Workmen (AIR 1959 SC 1217):
It is true that there is no limitation
prescribed for reference of disputes 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.
Learned counsel for the Board invited our attention to
a recent decision of a two Judge Bench of this Court in
Nedungadi Bank Ltd vs. 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.
It is useful to refer to a three Judge Bench decision
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of this Court as it related to the scope of the very same
provision i.e. Section 4K of the U.P. Act. In M/s. Western
India Watch Co. Ltd vs. 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 workmen or the
Union on account 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.
J
[ K.T. Thomas ]
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J
[ R.P. Sethi ]
July 24 , 2001.
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