Kuldeep Singh Vs G.M.,
Instrument Design Development and Facilities Centre & ANR
JUDGMENT
P. Sathasivam, J.
1.
Leave
granted.
2.
This
appeal is filed against the judgment and order of the High Court of Punjab
& Haryana at Chandigarh dated31.10.2006 in CWP No. 8774 of 2005 wherein the
Division Bench of the High Court confirmed the award passed by the Labour
Court, Ambala and dismissed the writ petition filed by the appellant herein for
reinstatement with fullback wages and other consequential benefits.
3.
Brief
facts:(a) It is the case of one Sh. Kuldeep Singh, the appellant/workman, that on
08.10.1990, he was appointed as Data Entry Operator on daily wages and he worked
as such till 28.11.1991 and thereafter on ad-hoc basis and worked up to
26.05.1992 without any break when his services were terminated by the
Instrument Design Development and Facilities Centre (IDDC)-the respondent/management
herein. According to him, no notice or compensation in lieu thereof was given for
terminating his services though he had worked for 240days in the preceding 12
months. According to the appellant workers junior to him were retained and even
fresh appointments were made after the termination of his services which is in
violation of provisions of Sections 25F to H of the Industrial Disputes Act,
1947 (in short "the Act").(b) It is the case of the
respondent/Management that the appellant/workman was working on daily wages to
meet the exigencies of work and his contract of employment was on day to day
basis and that the workman did not render duty for requisite number of days in
the 12preceding months as claimed. It was further denied that any worker junior
to the appellant was retained in service or any fresh appointment was made.(c) On
12.12.2003, the Labour Court, after adverting to the reference made by the
Governor of Haryana as to the non-employment of the appellant and after framing
necessary issues has held that the respondent/Management is an industry within the
meaning of Section 2(j) of the Act and found that the workman rendered the duty
for more than 240 days in the12 preceding months but the Management terminated
his services without complying with the provisions of Section25F of the Act, so
the order impugned is illegal, null and void and deserves to be set aside. Having
found so on the material issues 1, 5 and 6 in favour of the workman, however,
on the ground of delay in raising the demand and finding that the reference is
bad and incompetent being raised so belatedly dismissed the claim of the workman.(d)
Aggrieved by the dismissal of his claim, the workman filed Civil Writ Petition
No. 8774 of 2005 before the High Court of Punjab & Haryana at Chandigarh. By
the impugned judgment dated 31.10.2006, the Division Bench of the High Court by
holding that the unexplained inordinate delay has rendered the dispute in
question as patently stale accepted the award of the Labour Court and dismissed
the writ petition. Questioning the same, the workman has filed the above appeal
by way of special leave.
4.
Heard
Mr. B.S. Mor, learned counsel for the appellant/workman and Mr. Shishpal Laler,
learned counsel for the respondent/Management.
5.
The
point for consideration in this appeal is whether the Labour Court and the High
Court justified in rejecting the claim of the workman merely on the ground of
delay when the Labour Court concluded in categorical terms that the termination
of the services of the workman by the Management without complying with the
provisions of Section 25F of the Act is illegal, null and void and deserves to be
set aside.
6.
It
is not in dispute that the appellant was terminated from service w.e.f.
26.05.1992. It is the claim of the workman that he has worked as Data Entry
Operator from08.10.1990 to 28.11.1991 and thereafter, on ad hoc basis from
28.11.1991 to 26.05.1992 and since he had worked for more than 240 days in the
12 preceding months and his juniors were retained in service and fresh
appointments were also made after his termination, the act of the Management is
in violation of the provisions of Section 25 F to H of the Act.
7.
After
prolonged correspondence, the Governor of Haryana in exercise of power
conferred under Section10(1)(c) of the Act, has made the following reference between
the appellant/workman and the respondent/Management to the Labour Court, Ambala
for adjudication by way of notification bearing No. 62638dated 22.11.1999: "Whether
the termination of services of the workman Kuldeep Singh is valid and
justified, if not so, to what relief including back wages is he entitled?"
8.
Before
considering the order of reference, it is worthwhile to refer Section 10 of the
Act. Chapter-III of the Act speaks about reference of Disputes to Boards, Courts
or Tribunals. We are concerned with Section 10 (1)which reads as under: "10.
Reference of disputes to Boards, Courts or Tribunals.-
i.
Where
the appropriate Government is of opinion that any industrial dispute exists or
is apprehended, it may at any time, by order in writing-
a. refer the dispute to
a Board for promoting a settlement thereof; or
b. refer any matter
appearing to be connected with or relevant to the dispute to a Court for
inquiry; or
c. refer the dispute or
any matter appearing to be connected with, or relevant to, the dispute, if it relates
to any matter specified in the Second Schedule, to a Labour Court for
adjudication; or
d. refer the dispute or
any matter appearing to be connected with, or relevant to, the dispute, whether
it relates to any matter specified in the Second Schedule or the Third
Schedule, to a Tribunal for adjudication: xxx xxxxx
" Based on the
above provision, on the application of the workman, the Government of Haryana
made the above reference to the Labour Court, Ambala. On receipt of the reference
from the State Government, the Court assigned it as reference No. 254 of 1999.
Both the workman and the Management filed their written statements before the Labour
Court. The Labour Court, based on the claim of both the workman and the
Management framed the following issues for trial:-
i.
Whether
the termination of services of workman Kuldeep Singh is valid and justified? If
not so to what relief including back wages is he entitled?
ii.
Whether
the reference is not maintainable as alleged in preliminary objection No1 of
the written statement? OPM (3) Whether the respondent-Management is an
industry, if so, to what effect? OPM (4) Whether the reference is bad on
account of delay and laches as alleged in preliminary objection No.2 of the WS?
OPM (5) Whether the workman was appointed on ad hoc basis and against a specific
work and after the completion of work his services came to an end and if so, to
what effect? OPM (6) Whether the workman did not complete mandatory 240 days as
alleged? OPM
1.
2.
3.
4.
5.
6.
7.
8.
9.
Before
the Labour Court, both the parties led evidence in support of their respective
claims. The workman, as WW-1, reiterated about his service particulars as
stated in his claim petition and also marked documents A-E in support of his
claim. On the other hand, one Balbir Singh, S.O., was examined as MW-1 on the
side of the Management. Appointment letter of the workman was marked as Exs.M1
& M2. The relevant pages of the attendance register are marked as Exs. M3
toM16. MW-1 asserted that the Management never removed the workman from service
and he has not rendered the duty for 240 days in the preceding 12 months. After
considering the claim of both parties in the form of or a land documentary
evidence, in respect of issues 1, 5 and 6,the Labour Court, in para 19, has
concluded thus: "Workman rendered the duty for more than 240 days in the
12 preceding months, as I held above, but the Management terminated his
services without complying with the provisions of Section 25F of the Industrial
Disputes Act, so the order impugned is illegal, null and void and deserves to
be set aside. Accordingly, issue Nos. 1, 5 & 6 are decided in favour of
workman."
10.
It
is clear that the Labour Court, on appreciation of oral and documentary
evidence, has concluded that the termination of the workman i.e. the appellant
herein is illegal, null and void and deserves to be set aside. This finding has
become final since the Management did not question the same by way of writ
petition.
11.
It
is not in dispute that with regard to issue No.3, the Labour Court has
concluded that the Management-the respondent herein is an industry within the
meaning of Section 2(j) of the Act.
12.
The
Labour Court has concluded that the workman had raised the demand of reference
after more than five and a half years of his termination and has not offered plausible
and convincing explanation. On the other hand, it is the claim of the workman
that though his services were terminated on 26.05.1992, all along, he was
agitating the issue with the Government in one form or other and by making
representation to various authorities. Having found the termination void and
contrary to the provisions of the Act, the Labour Court dismissed the claim of
the workman only on the ground of delay.
13.
The
appellant/workman has furnished the following information to show that after
termination, he made several representations to various authorities. They are:
i.
Representation
dated 10.06.92 to the Hon'ble Minister of respondents' department.
ii.
Representation
dated 11.05.93 to the Chief Secretary of Haryana State.
iii.
Representation
dated 7.12.94 to the General Manager, IDDC., Ambala
iv.
Representation
dated 4.1095 to the General Manager, ID.D.C., Ambala
v.
Representation
dated 16.7.96 to the Manager, HARTON, Chandigarh. Besides that, he attempted
for the same job twice as under:
a. Applied and
interviewed for the same post out of 4 vacancies advertised in the Tribune
dated 19.09.92.
b. Applied and
interviewed for the same post out of 60 vacancies in the Sunday Tribune dated 14.5.1995.The
factual details have not been seriously denied by the Management.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
We
have already noted that the Labour Court held that the appellant has completed
240 days in 12preceding months and the respondent/Management terminated his
services without complying with the provisions of Section 25(f) of the Act and
that the order of termination dated 26.05.1992 is illegal, null and void and deserves
to be set aside but only on the ground of delay rejected his claim in its
entirety. 11
15.
Let
us consider whether the Labour Court and the High Court justified in rejecting
the claim of the workman only on the ground of delay in making the reference,
more particularly, when the Labour Court found that the termination is bad and
contrary to the Act. It is not in dispute that there is no limitation
prescribed for making reference to the Government under Section 10 of the Act. It
is useful to refer to the decision of this Court in Sapan Kumar Pandit vs. U.P.
State Electricity Board and Others, (2001) 6 SCC 222 which is directly on the
point in the case on hand. In that case, the appellant was appointed as a Clerk
on 01.01.1974 in the Electricity Distribution Division, Mathura of the U.P.
State Electricity Board, but his services were terminated on 17.07.1975.He
raised an industrial dispute that the termination of his services was illegal.
The State Government, by an order dated 29.03.1993, referred the dispute to the
Labour Court for adjudication as per Section 4-K of the U.P. Industrial
Disputes Act. "Whether termination of the appellant on 17.07.1975 by the
employer was proper and legal; if not 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 writ petition. A Single Judge of the High
Court took the view that the delay is so inordinate that the 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 holding that the workman kept silent 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. By holding so, allowed the writ petition of the Management.
The decision further shows that along with the appellant, the Board retrenched
ten other workmen. Though the Industrial Tribunal passed an award granting
retrenchment compensation and certain further other reliefs, the Union was not
satisfied with the said award and they filed a writ petition in 1980 before the
High Court of Allahabad. On 28.04.1988, the High Court allowed that writ
petition and held that retrenchment was bad in law and the workmen concerned
are entitled to be reinstated. Though the Board filed special leave petition in
this Court which 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 proceeding with his request to the Board that he should be treated
on par with eight workmen some of whom were reemployed by the Board. When the
appellant found that this was not done, he approached the Conciliation Officer appointed
by the State Government. His application for condoning the delay in 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 28.01.1992. It was
in the aforesaid background that the State Government made the reference for
adjudication on 29.03.1993. Section 4-Kof the U.P. Industrial Disputes Act is
almost in tune with Section 10 of the Industrial Disputes Act, 1947 and also there
is no time limit fixed for making the reference for a dispute for adjudication.
Considering the identical words i.e., "at any time" used in Section
10 (1) of the Act and Section 4 of the U.P. Industrial Disputes Act, considered
the main question namely, "Was the industrial dispute inexistence on the
date of reference for adjudication?" While considering the same, a
three-Judge Bench decision of this Court as to the scope of the very same
provision, namely, Section 4-K of the U.P. Industrial Disputes Act was cited
before the Bench. In M/s Western India Match Co. Ltd. vs. The Western India
Match Co. Workers Union and Ors., (1970) 1 SCC 225 = AIR 1970 SC 1205,the
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."Based on the interpretation of the three-Judge
Bench, it was concluded: "15. 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 galvanised 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 has 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."After saying so, allowed the appeal of the
workman and set aside the judgment of the High Court.
16.
Learned
counsel appearing for the Management heavily relied on the decision of this
Court in Nedungadi Bank Ltd. vs. K.P. Madhavankutty and Others, (2000)2 SCC
455, particularly, the ultimate conclusion in para 6which reads thus: "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 17 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."
17.
Though
this decision lays down that law does not prescribe any time limit for
appropriate Government to exercise its power under Section 10 of the Act, the
Court has concluded that the said power is to be exercised reasonably and in a
rationale manner. In that case, the Central Government exercised its power
after a lapse of about seven years of the order dismissing the workman from
service. A perusal of the said decision shows that the workman has not furnished
adequate reasons/materials for such a long delay and the only ground advanced
by him was that two other similarly placed employees dismissed from service
were reinstated.
18.
It
is true that following the decision in Nedungadi Bank Ltd. (supra), another
two-Judge Bench of this Court in Haryana State Coop. Land Development Bank vs. Neelam,
(2005) 5 SCC 91 accepted the similar claim of the Management and non-suited the
workman on the ground of delay.
19.
We
have already pointed out that there is no limitation prescribed in the Act or
in any other local Act prescribing such period. We have also referred to the materials
placed by the workman. By making various representations from the day when his
services were terminated and till his last representation dated16.07.1996 to
the Manager, HARTON, Chandigarh the workman has proved that he was agitating
his termination one way or other with all the authorities concerned. The particulars
furnished clearly show that the appellant/workman was fighting for his cause
before the Management as well as with the State Government including the Chief
Secretary and the Minister of the concerned Department. Ultimately, the State
Government has made a reference on 22.11.1999 to the Labour Court for
adjudication.
20.
The
view expressed in Sapan Kumar Pandit (supra)which is identical to our case has
been considered and followed in the subsequent decision, namely, S. M. Nilajkar
and Others vs. Telecom District Manager, Karnataka, (2003) 4 SCC 27. In both
the decisions, the principles laid down in Nedungadi Bank (supra) have been
considered and distinguished. We have already mentioned that in Sapan Kumar
Pandit (supra), this Court followed the principles enunciated in three-Judge Bench
decision of Western Indian Match Co. (supra). At this juncture, it is useful to
remind and reiterate the finding rendered by the Labour Court on issue Nos. 1,
5and 6 holding that the termination of the services of the workman/appellant
herein without complying with the provisions of Section 25F is illegal, null
and void and deserves to be set aside. Undoubtedly, the Management has to
follow the provisions of the Act while effecting termination, in fact, which
was accepted by the Labour Court and the Management has not challenged the same
before any forum.
21.
In
view of the above, law can be summarized that there is no prescribed time limit
for the appropriate Government to exercise its powers under Section 10 of the Act.
It is more so in view of the language used, namely, if any industrial dispute
exists or is apprehended, the appropriate government "at any time"
refer the dispute to a Board or Court for enquiry. The reference sought for by the
workman cannot be said to be delayed or suffering from a lapse when law does not
prescribe any period of limitation for raising a dispute under Section 10 of
the Act. The real test for making a reference is whether at the time of the
reference dispute exists or not and when it is made it is presumed that the
State Government is satisfied with the ingredients of the provision, hence the Labour
Court cannot go behind the reference. It is not open to the Government to go
into the merit of the dispute concerned and once it is found that an industrial
dispute exists then it is incumbent on the part of the Government to make
reference. It cannot itself decide the merit of the dispute and it is for the
appropriate Court or Forum to decide the same. The satisfaction of the
appropriate authority in the matter of making reference under Section10 (1) of
the Act is a subjective satisfaction. Normally, the Government cannot decline
to make reference for laches committed by the workman. If adequate reasons are shown,
the Government is bound to refer the dispute to the appropriate Court or Forum
for adjudication. Even though, there is no limitation prescribed for reference
of dispute to the Labour Court/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, when disputes
relate to discharge of workman. If sufficient materials are not put forth for
the enormous delay, it would certainly be fatal. However, in view of the explanation
offered by the workman, in the case on hand, as stated and discussed by us in
the earlier paragraphs, we do not think that the delay in the case on hand has been
so culpable as to disentitle him any relief. We are also satisfied that in view
of the details furnished and the explanation offered, the workman cannot be
blamed for the delay and he was all along hoping that one day his grievance
would be considered by the Management or by the State Government.
22.
In
the light of the above discussion and conclusion, we set aside the award of the
Labour Court insofar a sholding that the reference by the State Government is
bad and incompetent being raised so belatedly and dismissing the claim
statement on this ground and the order of the High Court dated 31.10.2006 in
C.W.P. No. 8774 of 2005affirming the said order of the Labour Court and dismissing
the writ petition filed by the workman. In view of the conclusion of the Labour
Court with regard to Issue Nos. 1, 5 and 6 deciding in favour of workman
holding that the Management terminated his services without complying with the
provisions of Section 25F of the Act and the said order is illegal, null and
void deserves to beset aside, we order reinstatement of the appellant-workman
with consequential service benefits but without back wages within a period of
eight weeks. Since the appellant is fighting for his survival for more than a decade,
we award a cost of Rs.50,000/- to be paid by the respondent-Management directly
to the appellant/workman within the same period.
23.
The
appeal is allowed to the extent mentioned above.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI;
DECEMBER
3, 2010.
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