Full Judgment Text
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CASE NO.:
Appeal (civil) 4561 of 2007
PETITIONER:
Karan Singh
RESPONDENT:
M/s Executive Engineer Haryana State Marketing Board
DATE OF JUDGMENT: 28/09/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
CIVIL APEPAL NO. 4561 OF 2007
(Arising out of SLP (C) No. 26379 of 2005)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the
Division Bench of the Punjab and Haryana High Court
dismissing the writ petition filed by the appellant questioning
the correctness of the decision rendered by the Presiding
Officer, Industrial Tribunal-cum-Labour Court, Hissar.
3. The reference made to the Labour Court by the State
Government of Haryana in terms of Section 10 (1) of the
Industrial Disputes Act, 1947 (in short the ’Act’) was answered
in favour of the respondent (hereinafter referred to as the
’Board’) holding that the claim was highly belated and
therefore dis-entitled the appellant from any relief.
4. A brief reference to the factual aspects would suffice.
The appellant was appointed as DPL in August 1993 and
worked upto October 1994. According to the appellant his
services were terminated without any charge sheet or holding
any enquiry though he had worked for more than 240 days. In
that context it was contended that provisions of Section 25-F
of the Act were not complied with. He had prayed for re-
instatement with full back wages alongwith all consequential
benefits. The claimant who was examined as WW-1 had
stated that he had joined the respondent-Board as DPL on
1.8.1993 and was getting Rs.1120/- p.m. and had worked till
October 1994 continuously when his services were terminated.
Grievance was made that the workers junior to him had been
regularized and a departure was made in his case.
The respondent-Board took the stand that the services of
the claimant were required as DPL as and when required and
he had really not completed 240 days. A stand was taken that
the claim was highly belated. It is to be noted that in the cross
examination appellant had admitted that he had no proof of
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having worked from August 1993 to October 1994. The claim
petition was filed in the year 2000. The notice dated 6.6.2000
was the first one and on failure of conciliation, reference was
made on 8.2.2001. The appellant should have explained
inaction on his part. Labour Court took the view that the claim
was highly belated. If the appellant felt that the order of
termination was illegal without following due procedure, he
should have come up with demand notice within a reasonable
time. It was held that though no limitation is prescribed, but it
would be unequitable to re-open the closed chapter after a
long time. The appellant was therefore held not to be entitled
to any relief.
Writ petition filed by the appellant was dismissed on the
ground that the demand notice had been raised after six years.
5. Learned counsel for the appellant has submitted that
there being no period of limitation prescribed and at the most
the relief could have been moulded instead of rejecting the
claim.
6. Learned counsel for the respondent supported the order
of the High Court.
7. In the appeal the main issue which arises for
determination is as follows:
"Whether the reference of the
Petitioner/workman could be rejected on the
sole ground of delay when Government itself
made reference for adjudication of the issue/
dispute."
8. In the case of Management of Express Newspapers
(Private) Ltd. v. The Workers and Ors. reported in (AIR 1963
SC 569) it has been held that the jurisdiction of the Tribunal
in dealing with industrial disputes is limited to the points
mentioned in Section 10(4).
9. In the case of National Engineering Industries Ltd. v.
State of Rajasthan and Ors. (2000) 1 SCC 371) it has been
held vide para 24 that the High Court has jurisdiction to
entertain a writ petition when there is an allegation that there
is no industrial dispute which could be the subject-matter of
reference for adjudication to the Industrial Tribunal under
Section 10. This is because existence of the industrial dispute
is a jurisdictional fact. Absence of such jurisdictional fact
results in the invalidation of the reference. For example, even
under the Income Tax Act, 1961 as it stood earlier, the Income
Tax Officer must have reason to believe escapement of income.
This "reason to believe" is a jurisdictional fact, therefore, writ
petitions were maintainable in cases where the High found
absence of basic facts for reopening the assessment. The
industrial Tribunal under Section 10 gets its jurisdiction to
decide an industrial dispute only upon a reference by the
appropriate government. The Industrial Tribunal cannot
invalidate the reference on the ground of delay. If the employer
says that the workman has made a stale claim then the
employer must challenge the reference by way of Writ petition
and say that since the claim is belated, there was no industrial
dispute. The Industrial Tribunal cannot strike down the
reference on this ground. In the present case, the Industrial
Tribunal has held that the employer has violated Section 25F.
If so, the order of termination is bad in law. It has to be struck
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down. In the present case, it has been struck down. However,
the Tribunal had refused to grant any relief on the ground of
delay. The Tribunal has no authority to invalidate the
reference, particularly when it has found that the order of
termination violates Section 25F of the Industrial Disputes
Act, 1947.
10. In Sapan Kumar Pandit v. U.P. State Electricity Board
and Ors. (2001) 6 SCC 222), it has been held, vide para 15, as
follows:
"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 4-K 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."
11. 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.
12. 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
been 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
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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."
13. 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
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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."
14. The above position was highlighted recently in Employers
in relation to the Management of Sudamdih Colliery of M/s
Bharat Coking Coal Ltd. v. Their Workmen represented by
Rashtriya Colliery Mazdoor Sangh (2006 (1) Supreme 282) and
Chief Engineer, Ranjit Sagar Dam & Anr. v. Sham Lal (2006(9)
SCC 124).
15. In the aforesaid background, we would have normally set
aside the award of the Labour Court and the High Court. But
because of long passage of time, it would be inappropriate,
particularly when appellant has not even offered any
semblance of explanation for the delay.
16. Accordingly we direct that the respondent-Board shall
pay a sum of Rs.60,000/- within a period of six weeks in full
and final settlement of appellant’s entitlements.
17. The appeal is allowed to the aforesaid extent. There will
be no order as to costs.