Assistant Executive Engineer and Others vs Tikhu Ram

Tarlok Singh Chauhan, J.—This writ petition questions the award passed by the learned Labour Court-cum-Industrial Tribunal (for short ''Industrial Tribunal'') on 09.09.2014, whereby the claim of the workman was partly allowed and the petitioners were directed to reinstate him as daily waged ''Beldar'' from the date of award without any seniority and continuity.

The following reference was sent for adjudication by the appropriate government:-

"Whether the termination of services of Tikhu Ram S/o. Shri Khayali Ram workman by the (1) Assistant Executive Engineer, Electrical Sub Division, HPSEB, Ram Shehar, District Solan, HP (2) Superintending Engineer, Operation Circle, HPSEB, Solan, District Solan w.e.f. 30.4.1998 without complying with the provisions of the Industrial Disputes Act, 1947 is legally, justified and maintainable? If not, what seniority, back wages, service benefits and relief the concerned workman entitled to?"

It is not in dispute that the workman was engaged as ''Beldar'' in May, 1986 and continued to work as such till April, 1998 when his services were illegally terminated. Against his illegal termination, the workman initially approached the Administrative Tribunal by filing OA No. 2757 of 1999 which was withdrawn for want of jurisdiction with liberty to pursue his remedy before the competent forum. It is thereafter the dispute was raised before the Industrial Tribunal.

The petitioners contested the reference by filing their reply wherein it was alleged that though the workman had joined services of the petitioners-Board with effect from 29.05.1986, but he had been in the habit of remaining absent from duty without any sanctioned leave and for this reason the workman could not complete 240 days in a calendar year except 1987 and 1988. It was specifically denied that his services were terminated with effect from 30.04.1998, as alleged and it was averred that the workman had in fact abandoned the job.

On 12.08.2009, the learned Industrial Tribunal framed the following issues:-

Whether the termination of services of Shri Tikhu Ram petitioner by the respondents w.e.f. 30.4.1998 without complying the provisions of the Industrial Disputes Act, 1947 is illegal, unjustified and not maintainable as alleged? OPP.

If issue No. 1 is proved, to what seniority, back wages, service benefits and relief, the petitioner is entitled to? OPP.

Whether the claim is not maintainable in the present form? OPR.

Whether the petitioner has lost his lien over the job as alleged? OPR.

After recording the evidence and evaluating the same, the learned Industrial Tribunal, partly allowed the reference as aforesaid. The award passed by the learned Industrial Tribunal has been challenged primarily on the ground that the claim raised by the workman was stale, therefore, instead of re-engagement, he should have been ordered to be paid lumpsum compensation.

I have heard the learned counsel for the parties and have gone through the records of the case.

It is evident from the records that initially the claim of the workman was rejected solely on the ground that he had abandoned the job despite there being framed no issue to this effect Consequently, the award passed by the learned Industrial Tribunal on 14.09.2010 was ordered to be set aside vide decision rendered in CWP No. 659 of 2011 on 24.09.2012. The learned Industrial Tribunal thereafter framed an additional issue to the following effect:-

"4-A. Whether the petitioner abandoned the job at his own in 1998? If so, its effect? OPR.

Relief."

After recording the evidence, it was concluded that the workman had not abandoned the job, rather his services had been terminated contrary to the provisions of Section 25 of the Industrial Disputes Act.

It may be noticed that the ground of delay is otherwise not available to the petitioners in view of the recent judgment of the Hon''ble Supreme Court in Raghubir Singh Vs. General Manager,Haryana Roadways, , relevant extract whereof reads as under:--

"10. The learned Additional Advocate General for the State of Haryana, Mr. Narender Hooda has vehemently contended that the Labour Court was right in rejecting the reference of the industrial dispute being on the ground that it was barred by limitation by answering the additional issue No. 2 by placing reliance upon the decision of this Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, wherein this Court has held as under:- (SCC p. 551, para 19)

"19. We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the Industrial Disputes Act, 1947, but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed."

In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate government ''at any time'' may refer an industrial dispute for adjudication, if it is of the opinion that such an industrial dispute between the workman & the employer exists or is apprehended. Section 10(1) reads as follows:

"10. Reference of disputes to Boards, Courts or Tribunals:-(1) 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."

(emphasis supplied)

Thus, it is necessary for us to carefully observe the phrase ''at any time'' used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant.

This Court in Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, , after interpreting the phrases "at any time" rendered in Section 10(1) of the Act, held thus:- (SCC p. 7, para 7)

"7.......Section 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.......The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function."

Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10(1) of the Act has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer.

Further, in Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, , it is held by this Court as under: (SCC p. 228, para 15)

"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 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."

(emphasis supplied)

Therefore, in our considered view, the observations made by this Court in the Rajasthan State Agriculture Marketing Board case upon which the learned Additional Advocate General for the State of Haryana has placed reliance cannot be applied to the fact situation of the case on hand, for the reason that the Labour Court has erroneously rejected the reference without judiciously considering all the relevant factors of the case particularly the points of dispute referred to it and answered the 2nd issue regarding the reference being barred by limitation but not on the merits of the case. The said decision has no application to the fact situation and also for the reason the catena of decisions of this Court referred to supra, where in this Court has categorically held that the provisions of Limitation Act under Article 137 has no application to make reference by the appropriate government to the Labour Court/Industrial Tribunal for adjudication of existing industrial dispute between workmen and the employer.

In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services and Sapan Kumar Pandit cases referred to supra.

Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, , it was held by this Court as follows: (SCC pp. 39-40, 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...... In Ratan Chandra Sammanta and others Vs. Union of India and others, , 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....."

(emphasis supplied)

In view of the legal principles laid down by this Court in S.M. Nilajkar, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute between the parties was made within a reasonable time, considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer.

In the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , this Court has opined that relief cannot be denied to the workman merely on the ground of delay, stating that: (SCC p. 90, para 10)

"10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages....."

(emphasis supplied)"

Even otherwise, if it is assumed that there is some delay in filing of the reference, even then the effect of such delay has already been taken into consideration while granting relief to the workman. As against the award of full wages or even part thereof which could normally be granted to the workman in case of illegal retrenchment, the learned Industrial Tribunal has not granted any seniority or continuity in service to the workman and the relief granted to the workman is only a direction for reinstatement of his services as a daily waged ''Beldar'' from the date of award.

In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties bear their own costs. Pending application, if any, also stands disposed of.