Divisional Manager, Boudh Commercial Division, Orissa Forest Development Corporation Ltd. vs Sri Godabarish Badajena and Another

B.K. Patel, J.—The legality of award dated 30.3.2006 passed by Learned Presiding Officer, Labour Court, Bhubaneswar (hereinafter referred to as the ''Labour Court'') in I.D. Case No. 185 of 1994 holding the termination of service of Opp. Party No. 1-workman with effect from 1.7.1984 by the Petitioner-management to be neither legal nor justified & further holding the workman to be entitled to reinstatement of service without any back wages has been assailed in this writ application.

The impugned award was passed on receipt of the following reference from the State Government u/s 12(5) read with Section 10(1) of the Industrial Disputes Act, 1947 (for short ''the Act) for adjudication:

Whether the termination of services of Sri Godabarish Badajena, Mate with effect from 2.7.84 by the management of Divisional Manager, O.F.D.C. Ltd., Boudh Commercial Division, Boudh is legal and/or justified? If not to what relief Sri Badajeha is entitled?

Opp. Party No. 1 was engaged in the establishment of the Petitioner with effect from 1.12.1981 as a Mate on daily wages & continued with the employment till 30.6.1984. It was averred by the Opp. Party No. 1 in his statement of claim that when he claimed for regularization, his service was terminated by the management with effect from 30.6.1984 without any notice or notice payor compensation. He kept on approaching the authorities for reinstatement. As there was no response, the Opp. Party No. 1 approached the Labour machinery. Conciliation proceedings having failed, on the basis of failure report submitted to the State Government, the reference was made for adjudication. As the Opp. Party No. 1''s service was terminated illegally, he claimed for regularization of service with full back wages & other service benefits.

In the written statement filed by the Petitioner, the Opp. Party No. 1''s claim was resisted on the ground that he voluntarily abandoned his job with effect from 1.7.1984. The Petitioner took the stand that Opp. Party No. 1 ''s service was never terminated & that he voluntarily abandoned the employment. The Opp. Party No. 1, being a casual worker, in view of voluntary abandonment of his service, is not entitled to any relief. The Petitioner resisted the proceeding also on the ground of delay contending that Opp. Party No. 1 raised the dispute in the year 1992 after lapse of eight years from the date of alleged termination of service. It was further averred that due to ban of felling of timber, the work load of the management has decreased considerably & there was no sufficient work for the regular employees in the Corporation for which the Opp. Party No. 1''s claim could not be considered.

In order to substantiate his claim Opp. Party No. 1 examined himself as W.W.1 & relied upon documents marked Exts. 1 to 4. Petitioner also examined one witness M.W. 1 but did not adduce any documentary evidence. On appraisal of materials on record Learned Labour Court recorded the finding that the termination of service of Opp. Party No. 1 with effect from 1.7.1984. by the Petitioner was iilegal & unjustified & against the mandate of Section 25-F of the I.D. Act for which the Opp. Party No. 1 is entitled to be reinstated. However, in view of delay in raising the dispute & in the absence of assertion on the part of Opp. Party No. 1 that he had not been gainfully employed after his service was terminated, his claim for back wages was held to be not acceptable.

Learned Counsel for the Petitioner would submit that engagement of Opp. Party No. 1 from 1.12.1981 to 30.6.1984 is not disputed & that admittedly neither any appointment order nor any termination order was issued by the Petitioner. However, in assailing the order it was strenuously contended that the Opp. Party No. 1 voluntarily abandoned his job & did not report for duty since 1.7.1984. It was contended that the Opp. Party No. 1 had raised the Industrial Dispute as late in the year 1992 after remaining silent for long 8 years rendering his claim stale due to delay & laches. In such circumstances, the Learned Labour Court should not have entertained Opp. Party No. 1''s claim. In support of his contentions Learned Counsel for the Petitioner relied upon decisions of the Hon''ble Supreme Court in The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, , Ratan Chandra Sammanta and others Vs. Union of India and others, & Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal, .

In reply, Learned Counsel for the Opp. Party No. 1 contended that there is no scope to find fault with the finding recorded by Learned Labour Court to the effect that the Petitioner was retrenched from services illegally without complying with the requirements u/s 25-F of the Act. Evidence adduced by the Petitioner in this regard is clear, cogent & unreproachable. The Opp. Party No. 1 kept on approaching the authorities for reemployment till he approached the Labour Officer. Documents marked Exts. 1 to 4 substantiate the assertion of Opp. Party No. 1 in this regard. In the letter marked Ext. 4, Chairman of the Orissa Forest Development Corporation Ltd. directed reengagement of Opp. Party No. 1 & two other employees stating that termination of their services was illegal. It was further contended that delay by itself is not a ground to refuse the claim of workman under the Act. In this context Learned Counsel for the Opp. Party No. 1 relied upon decision of the Hon''ble Supreme Court in Ajaib Singh v. Sirhind Co-op. Marketing-cum-Processing Service Society Ltd. and Anr. 1999 1 CLR 1068 & of this Court in Benudhar Swain v. Presiding Officer, Labour Court, Bhubaneswar and Anr. OJC No. 10611 of 1999.

Having perused the L.C.R., upon reference to the rival contentions, it is observed that the management does not dispute employment of Opp. Party No. 1 from 1.12.1981 to 30.6.1984. M.W. 1 in his cross-examination categorically admitted that Opp. Party No. 1 was working continuously till 30.6.1984, but he was not terminated from service. The stand of the management is that the Opp. Party No. 1 abandoned the service. However, no evidence has been adduced to substantiate the stand. Learned Labour Court has referred to the decision of this Court in Divisional Manager, Orissa Forest Development Corporation Ltd. Boudh, Commercial Division v. Kanista Bisoi and Anr. 2004 (Supp.) OLR 694, wherein it has been held that onus lies on the management to substantiate the plea of abandonment by adducing cogent evidence. Retrenchment of an employee without following the mandatory provisions u/s 25-F of the Act is not only unsustainable but also illegal. No evidence has also been adduced from the side of the management to indicat-that any notice directing the Opp. Party No. 1 to join in his duty or to &show cause for unauthorized absence was issued. Evidence of W.W.1, the workman himself to the effect that he submitted a sense of representations to the management for re-employment remained unassailed. Exts. 2 to 4, which are copies of official letters, have not been disputed. Ext.2 reveals that copy of the representation dated 16.9.1991 submitted by the Opp. Party No. 1 was sent from the office of the Managing Director, Orissa Forest Development Corporation Ltd., Bhubaneswar (for short ''O.F.D.C., Bhubaneswar'') to the Divisional Manager, Orissa Forest Development Corporation Ltd., Boudh (C Division) (for short ''O.F.D.C., Boudh) for report & particulars. In reply thereto, Ext.3 was sent stating that no engagement or disengagement order was issued to Opp. Party No. 1. In Ext.4 issued from the office of the Chairman of O.F.D.C. Bhubaneswar, it has been specifically observed that mandatory provision of Section 25-F of the Act had not been followed while terminating the service of Opp. Party No. 1 & two other employees & the Divisional Manager, O.F.D.C, Boudh was requested to engage them. Therefore, there is absolutely no scope to entertain the management''s plea of abandonment. There appears no infirmity in the finding that Opp. Party No. 1 ''s service was terminated illegally & the termination amounts to retrenchment without compliance of the provision u/s 25-F of the Act.

Also the contention relating to bar of limitation to the dispute raised by Opp. Party No. 1 is factually unacceptable & legally unsustainable. As has been stated earlier, Opp. Party No. 1 appears to have submitted representations. There was a direction under Ext.4 from the office of the Chairman of the Corporation for re-employment of Opp. Party No. 1 as late as on 26.9.1992. It is evident that Opp. Party No. 1 made all endeavours for his re- employment by approaching the authorities of the Corporation. Therefore, there is no basis to urge that Opp. Party No. 1 allowed his claim to become stale by remaining silent till he approached the Labour Officer in the year 1992. That apart, it also negates the plea that the Opp. Party No. 1 had abandoned the service. Moreover, it is well-settled that law of limitation is not applicable to the proceedings under the Act & the relief under the Act cannot be denied solely on the ground of delay.

In The Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (supra) relied upon by the Petitioner, it has been held by the Hon''ble Supreme Court that law does n5t prescribe any time limit for the appropriate Government to exercise its powers u/s 10 of the Act. As to when a dispute can be said to be stale would depend on the facts & circumstances of each case. Similarly, in Chief Engineer, Ranjit Sagar Dam and Anr. v. Sham Lal (supra), also relied upon by the Petitioner, it was observed 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 individual case.

In Benudhar Swain v. Presiding Officer, Labour Court, Bhubaneswar and Anr.: (supra), it has been observed:

Learned Counsel for the Petitioner submits that the Presiding Officer has relied upon the decision in the case of Ratan Chandra Sammanta and Ors. v. The Union of India and Ors. (SC) 1993 (67) FLR 70 in support of his finding that the claim is barred by law of limitation & in holding that the Presiding Officer is incompetent to adjudicate the same. He further submits that the Supreme Court in the case of Ajaib Singh v. Sirhind Co.op. Marketing-cum-Processing Service Society Ltd. and Anr.1999 1 CRL 1068 categorically held that considering the objectives in enacting the Industrial Disputes Act, 1947 where limitation act has not been made applicable to the I.O. Act, relief under the Act cannot be denied to the workman solely on the ground of delay as Limitation Act is not applicable & in case delay is established, the Labour Court or Tribunal can mould the relief with regard to back wages etc. In the case of Ajaib Singh (Supra), the Supreme Court has categorically held that the provision under Article 137 of the schedule to the Limitation Act, 1983 is not applicable to the proceeding under the I.O. Act & the relief under the said Act cannot be denied to the workmen 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 & 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 delay is shown to be existing, the Tribunal, Labour Court or Board dealing with the case can appropriately mould the relief by declining to grant wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal.

In the case of Workmen of Karnataka Government Insurance Department (KGID) Employees Union v. Presiding Officer, Principal Industrial Tribunal and Ors. 1999 LAB I.C. 2553, the Karnataka High Court was considering the rejection of reference of the dispute regarding payment of bonus on the ground of delay in raising the dispute. While considering the said question, the Karnataka High Court observed that the Tribunal while dealing with the question of delay in raising the Industrial Dispute, which was referred to it for adjudication, should bear in mind that the delay by itself is not a ground to reject the reference.

In the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , the Supreme Court reiterated the above position of law referring to the decisions in the case of Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, & Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., , Sakuru Vs. Tanaji, , Jai Bhagwarl. v. Management of the Ambala Central Co-operative Bank Ltd and Anr. 1983 (47) FLR 532 (SC) & H.M.T. Ltd. v. Labour Court, Ernakulam and Ors. 1994 LLR 720 (SC). The decisions relied upon by the labour Court in the case of Ratan Chandra Sammanta and Ors. (supra) was a Writ Petition filed before the Supreme Court under Article 32 of the Constitution, where the Supreme Court was considering a prayer made by the Petitioners therein for reemployment & for restraining the Opp. Parties therein from filling up the vacancies from open market. Considering the facts of the said case, the Supreme Court, finding that the Petitioners have approached the Court at a belated stage, i.e., after lapse of a period of 15 years, came to the conclusion that a writ cannot be issued in favour of the Petitioners as prayed for by entertaining the application which sought for a roving enquiry leaving scope of manoeuvreing. Nothing appears in the said decision to indicate that the law of limitation would be applicable to a reference while being answered by a Labour Court & the workman will be denied the right solely on the ground of delay.

In view of the above discussion, there appears no infirmity in the impugned award so as to warrant interference by invoking writ jurisdiction. The Writ Petition is, therefore, dismissed.

Pradlp Mohanty, J.

I agree.