Engineer, C.A.D., Kota Vs. Dhan Kunwar  Insc 376 (5 July 2006)
Pasayat & C.K. Thakker Arijit Pasayat, J.
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.
brief reference to the factual aspects as highlighted by the appellant would
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
no reference was made by the State Government.
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
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
correctness of the award a writ petition was filed before the High Court.
Learned Single Judge dismissed 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.
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.
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%.
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
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:
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.
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." In S.M. Nilajkar and Ors. v. Telecom
District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as
follows: (at para 17)
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.
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.
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 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.
being the position, the appeal is bound to succeed and we direct accordingly.