Executive Engineer Rural Engineering Services & another vs Ganesh Dutt Joshi

MANOJ K. TIWARI, J. (ORAL)

This is employers’ petition, under Article 227 of the Constitution of India, against the award dated 16.05.2013 given by Presiding Officer,

Industrial Tribunal/ Labour Court, Haldwani, District Nainital (hereinafter referred to as Labour Court) in Adjudication Case No. 26 of 2006.

Brief facts of the case, are as follows:

Ganesh Dutt Joshi (respondent herein) raised an industrial dispute, which was referred for adjudication to learned Labour Court, Haldwani vide order

25.01.2006. English translation of the dispute so referred, reads as follows:

“Whether termination of services of Ganesh Dutt Joshi S/o Kanti Bhallab Joshi by the employer w.e.f 01.10.1998 is legal and/or justified? If not,

then workman is entitled to what relief/compensation? and with which other particulars?â€​

The reference was registered as Adjudication Case No. 26 of 2006. The workman filed his claim statement before learned Labour Court stating

that he is working as work charge Peon in Nainital Division of Rural Engineering Service Department since 15.12.1986, however his services have

been orally terminated w.e.f. 01.10.1998. It was further stated by the workman that there was no complaint against his work and conduct and further

that he was twice issued call letters in September 1988 and March 1989 to participate in the selection for regular appointment, on the post of Peon. It

was further stated that since he served continuously between 1986 to 30.09.1998, and his services were terminated without giving any notice or

wages, in lieu of notice and compensation was also not paid to him, therefore his termination is illegal.

Employer (Petitioner herein) filed a written statement disputing the contention made by workman in his claim statement. Stand taken by workman

that he was appointed in work charge establishment was denied and it was stated that he was engaged on daily wage basis from time to time, as per

availability of work, and further that he never worked continuously in the Department. It was contended that his services were not terminated and

further that there is no provision for issuing notice or paying retrenchment compensation to a daily wager. It was further stated that no cause of action

arose to the respondent on 01.10.2018.

Since the employer refuted claim of the workmen that he had worked in the department continuously between 1986 to 30.09.1998, therefore

learned Labour Court called upon the employer to produce the muster roll between 1990 to 03.09.1998. The employer, however produced muster roll

only upto May 1998 and muster roll for the month of June, 1998 to September, 1998 were not produced, nor any affidavit filed that respondent was not

serving in the Department during this period.

Learned Labour Court upon perusal of the muster roll produced by employer came to the conclusion that respondent has worked for more than 240

days in each calendar year, therefore provision contained in Section 6N of U.P. Industrial Dispute Act are attracted to the case. It was further held

that since, his services were terminated in violation of Section 6 N of the Act, therefore termination of his service w.e.f. 01.10.1998 is illegal and

unjustified.

On the question of relief, learned Labour Court after considering the law laid down by Hon’ble Supreme Court in Secretary, State of Karnataka

and others Vs. Umadevi and others, reported in (2006) 4 SCC 1 held that since the respondent was a daily wager, therefore, direction for his

reinstatement cannot be given. As such, in place of reinstatement learned Labour Court ordered for payment of compensation amounting to Rs. 1.5

lacs, to the respondent. It was further provided that if amount of compensation is not paid till enforcement of the award, then respondent will be

entitled to interest @ 8% per annum.

Aggrieved by the said award, State of Uttarakhand has filed this writ petition. This Court vide order dated 27.03.2014 directed petitioner to deposit

the entire amount awarded by learned Labour Court in the Registry of this Court. Petitioner deposited a sum of Rs. 1.5 lacs in the Registry of this

Court on 27.05.2014. Learned counsel for the petitioner submits that the amount, so deposited, has been released in favour of the respondent, pursuant

to order of this Court passed on 05.06.2014. Learned counsel for the respondent does not dispute these submissions made on behalf of the petitioner.

Learned Dy. A.G. has challenged the award given by Labour Court, on following three grounds.

(1) Rural Engineering Service, Nainital is a Department of the State Government, therefore it cannot be termed as an industry, as such, the award

given by learned Labour Court, is without jurisdiction.

(2) Learned labour Court erred in not considering the fact that respondent was engaged as Casual Worker from time to time, as per availability of

work and he never served continuously in the Department, and finding to the contrary recorded by the Labour Court, is unsustainable.

(3) The finding of learned Labour Court regarding violation of Section 6N of the Act is unsustainable, as the workman was casual worker, who was

engaged from time to time, on daily wages, from morning till evening on each working day, Thus, there was no question of issuing any notice or giving

wages in lieu of notice to him, in terms of Section 6N of the Act.

(4) There was inordinate delay on the part of the workman in raising the dispute, inasmuch as, his termination was affected on 01.10.1998, whereas

the reference was made only on 25.01.2006.

10 The argument made by learned counsel for the petitioner, though look attractive in first blush, but on deeper scrutiny it does not deserve

acceptance.

Hon’ble Supreme Court in the celebrated judgment rendered in the case of Bangalore Water Supply & Sewerage Board Vs A. Rajjapa &

others reported in (1978) 2 SCC 213 has interpreted the term ‘industry’ as defined under Section 2(j) of the Industrial Disputes Act, 1947.

Recently, Hon’ble Supreme Court in the case of Balmer Lawrie & Co. Ltd. Vs Partha Sarthi Sen Roy reported in (2013) 8 SCC 345 has clarified,

which functions of the Government are sovereign function and which are not. Para 19 and 20 of the said judgment Balmer Lawrie (supra) are

extracted below:-

“19. In Bangalore Water Supply & Sewerage Board v. A. Rajappa this Court dealt with the terms “regal†and “sovereign†functions, and

held that such terms are used to define the term “governmental†functions, despite the fact that there are difficulties that arise while giving such a

meaning to the said terms, for the reason that the Government has now entered largely the field of industry. Therefore, only those services, which are

governed by separate rules and constitutional provisions such as Articles 310 and 311, should strictly speaking, be excluded from the sphere of industry

by necessary implication.

Every governmental function need not be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities

may well be among the State’s essential functions, which contribute towards its welfare activities aimed at the benefit of its subjects, and such

activities can also be undertaken by private persons, corporates and companies. Thus, considering the wide ramifications, sovereign functions should

be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative

functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon etc. Therefore,

mere dealing in a subject by the State, or the monopoly of the State in a particular field, would not render an enterprise sovereign in nature. (Vide

Agricultural Produce Market Committee v. Ashok Harikuni, State of U.P. v. Jai Bir Singh, Assam Small Scale Industries Development Corpn. Ltd. V.

J.D. Pharmaceuticals and Haryana State Industrial Development Corpn. v. Hari Om Enterprises.)â€​

In the case of Chief Conservator of Forests & others Vs Jagannath Maruti Kondhare reported in (1996) SCC 213 Hon’ble Supreme Court

has held that Social Forestry Scheme of the Forest Department is an ‘industry’ under Section 2(j) of the Industrial Disputes Act. Thus, merely

because Rural Engineering Service is a department of the State Government, it cannot be exempted from applicability of Industrial Dispute Act, 1947.

Thus the first contention made on behalf of the petitioner is unsustainable.

The second submission made on behalf of the petitioner is that respondent did not work continuously in the department and he was engaged as a

daily wager whenever work was available for him. As stated earlier, learned Labour Court had summoned the entire muster roll for the period 1990 to

30.09.1998 and petitioner produced muster roll only upto May 1998. Learned Labour Court has recorded a finding upon considering the material on

record that workman had worked for more than 240 days in each calendar year. Since this is a finding of fact, therefore, this Court is not inclined to

interfere with the same while exercising supervisory jurisdiction under Article 227 of the Constitution.

Another submission on behalf of the petitioner is that since engagement of the workman was from morning till evening on each working day,

therefore, protection of Section 6N of the Act is not available to him. This submission made on behalf of the petitioner is misconceived.

Protection of Section 6N of the Industrial Disputes Act is available to every workman who has worked for 240 days in a calendar year in any

capacity. For applicability of Section 6N of the Act, status of the workman is not relevant and what is relevant is the period, for which he has served.

Since categorical finding has been recorded that respondent worked for more than 240 days in each calendar year, therefore, he was entitled to notice

and retrenchment compensation, in terms of Section 6N of the Act. Since the procedure prescribed under Section 6N has not been followed,

therefore, learned Labour Court has rightly answered the reference in favour of the respondent.

The last submission on behalf of the petitioner regarding delay in raising industrial dispute, is also bereft of merit. Hon’ble Supreme Court in

the case of Ajaib Singh Vs Sirhind Cooperative Marketing-cum-Processing Service Society Limited & another reported in (1999) 6 SCC 82 has

considered and discussed the question of delay in making reference of an industrial dispute with reference to aims and objects of the Act. Para 6 to 11

of the said judgment are extracted below:-

“6. The history of the legislation with respect to the industrial disputes would show that for the first time in the year (1920 the Trade Disputes Act

Was enacted which provided for Courts of enquiry and Conciliation Boards and forbade strikes in public utility service without a statutory notice in

writing. The Act did not make provision for any machinery for settling of industrial disputes. The said Act was repealed and replaced by the Trade

Disputes Act, 1929 which started the State intervention in the settlement of industrial disputes and armed the Government with the power which could

be used whenever considered fit to intervene in industrial disputes. This Act was amended in the year 1938 authorising the Central and Provincial

Governments to appoint Conciliation Officers for mediating in or promoting the settlement of industrial disputes. Shortly thereafter the Government of

India promulgated the Defence of India Rules to meet the exigency created by the Second World War. Rule 81-A gave powers to the Government to

intervene in industrial disputes and was intended to provide speedy remedies for industrial disputes by referring them compulsorily to conciliation or

adjudication by making the awards legally binding on the parties and by prohibiting strikes or lockouts during the pendency of the conciliation or

adjudication proceedings. The Industrial Employment (Standing Orders) Act, 1946 was enacted which made provision for framing and certifying of

standing orders covering various aspects of service conditions in the industry. The Industrial Disputes Bill was introduced in the Central Legislative

Assembly on 8.10.1945 which embodied the essential principles of Rule 81-A of the Defence of India Rules and also certain provisions of Trade

Disputes Act, 1929 concerning industrial disputes. The Bill was passed by the Assembly in March 1947 and became the law w.e.f. 01.04.1947. The

present Act was enacted with the objects as referred to hereinabove and provided machinery and forum for the investigation of industrial disputes,

their settlement for purposes of analogous and incidental thereto. The emergence of the concept of a welfare State implies an end to the exploitation

of workmen and as a corollary to that collective bargaining came into its own. The legislature had intended to protect workmen against victimisation

and exploitation by the employer and to ensure termination of industrial disputes in peaceful manner. The object of the Act, therefore, is to give

succour to weaker sections of society which is a prerequisite for a welfare State. To ensure industrial peace and pre-empt industrial tension, the Act

further aims at enhancing the industrial production which is acknowledged to be life-blood of a developing society. The Act provides a machinery for

investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised courts which are

not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and

adjudication as per the need of society keeping in view the fast changing social norms of a developing country like India. It appears to us that the High

Court has adopted a casual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act.

This Court in Bombay Gas Co. Ltd. v. Gopal Bhiva held that the provisions of Article 181 (now Article 137) of the Limitation Act apply only to

applications which were made under the Code of Civil Procedure and its extension to applications under Section 33-C(2) of the Act was not justified.

This position was further reiterated and explained by this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court:-

It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and

applicability of Article 137 in the new Limitation Act of 1963. The language of Article 137 is only slightly different from that of the earlier Article 181

inasmuch as, when prescribing the three years' period of limitation, the first column giving the description of the application reads as ‘any other

application for which no period of limitation is provided elsewhere in this division’. In fact, the addition of the word ‘other’ between the

words ‘any’ and ‘application’ would indicate that the legislature wanted to make it clear that the principle of interpretation of Article 181

on the basis of ejusdem generis should be applied when interpreting the new Article 137. This word ‘other’ implies a reference to earlier

articles, and, consequently, in interpreting this article, regard must be had to the provisions contained in all the earlier articles. The other articles in the

third division to the Schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and

also in two cases applications under the Code of Criminal Procedure. The effect of introduction in the third division of the schedule of reference to

applications under the Arbitration Act in the old Limitation Act has already been considered by this Court in the case of Sha Mulchand & Co. Ltd. We

think that, on the same principle it must be held that even the further alteration made in the articles contained in the third division of the Schedule to the

new Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of

the residuary Article 137 which deals with other applications. It is not possible to hold that the intention of the legislature was to drastically alter the

scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure.

This Point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the articles in the third division to the

Schedule, including Article 181 of the Limitation Act of 1908, governed applications under the Code of Civil Procedure only, it clearly implied that the

applications must be presented to a court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included

within the third division by amendment of Articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil

Procedure. At best, the further amendment now made enlarges the scope of the third division of the Schedule so as also to include some applications

presented to courts governed by the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to

courts to be governed by the Articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to

include within them applications to bodies other than courts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a

Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil

Procedure or the Code of Criminal Procedure. We cannot, therefore, accept the submission made that this article will apply even to applications made

to an Industrial Tribunal or a Labour Court. The alterations made in the Article and in the new Act cannot, in our opinion, justify the interpretation that

even applications presented to bodies, other than courts, are how to be governed for purposes of limitation by Article 137.â€​

In Sakura v. Tanaji it was held that the provisions of the Limitation Act applied only to proceedings in courts and not to appeals or applications

before the bodies other than courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may

be vested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure. The view taken by this Court in

Municipal Council Athani (supra) and Nityanand M. Joshi v. LIC of India, was reiterated with approval.

In Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. this Court declined to set aside the order of reinstatement of the

workman who was shown to have approached the Court after a prolonged delay. However, in the circumstances of the case, the court directed the

workman to be reinstated in service with continuity from the date on which his services were terminated but having regard to the fact that he had

raised the industrial dispute after considerable delay without doing anything in the meanwhile, he was not awarded the back wages. The grant of half

back wages from the date of termination of service until the date of order and full back wages from that date till his reinstatement was found in the

circumstances to meet the ends of justice. In H.M.T. Ltd.

v. Labour Court, where there was a delay of 14 years in invoking the jurisdiction of the court, this Court found that instead of full back wages, the

grand of 60 per cent of the back wages upon the reinstatement of the workman would meet the ends of justice.

It follows, therefore, that the provisions of Article 137 of the Schedule to the 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. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in

Ram Chander Morya v. State of Haryana is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the

Limitation Act were applicable in the proceedings under the Act. The Court specifically held “neither any limitation has been provided nor any

guidelines to determine as to what shall be the period of limitation in such cases.†However, it went on further to say that “reasonable time in the

cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the government can

refuse to make a reference on the ground of delay and laches if there is no explanation to the delay.â€​

We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an

application under Section 33-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its

wisdom had though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges

presiding over the Court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left

over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and

various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the

purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act.

ln the instant case, the respondent management is not shown to have taken any plea regarding delay as is evident from the issues framed by the

Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the

services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing

him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the

Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why

the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings

were, therefore, unjustified. The High Court was also not justified in holding that the courts were bound to render an even-handed justice by keeping

balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the

Act. Even after noticing that “it is true that a fight between the workman and the management is not a just fight between equals,†the Court was

not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment.

The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay,

he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the

opinion of the Labour Court which was not permissible in proceedings under Articles 226/227 of the Constitution.â€​

The view taken in the case of Ajaib Singh (supra) has been reiterated by Hon’ble Supreme Court in the case of Raghubir Singh Vs General

Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301. Para 20 nd 21 of the said judgment are extracted below:-

“20. Further, the Labour Court on an erroneous assumption of law framed the additional issue regarding the limitation in raising the dispute and its

reference by the State Government to the Labour Court. Thus, the Labour Court has ignored the legal principles laid down by this Court in the cases

referred to supra. The award passed by the Labour Court was accepted erroneously by both the learned Single Judge and the Division Bench of the

High Court by dismissing the civil writ petition & the letters patent appeal without examining the case in its proper perspective, keeping in view the

power of the State Government under Section 10(1)(c) and the object and intendment of the Act. Not adjudicating the existing industrial dispute on

merits between the parties referred to it may lead to disruption of industrial peace and harmony, which is the foremost important aspect in industrial

jurisprudence as the same would affect the public interest at large.

The Labour Court has failed to exercise its statutory power coupled with duty by not going into the merits of the case and adjudicating the points

of dispute referred to it while answering the additional Issue 2 framed by it regarding limitation. Therefore, it is a fit case for us to exercise the

jurisdiction of this Court for the reason of non-adjudication of dispute on merits between the parties with regard to the justifiability of the order of

dismissal passed by respondent.â€​

Similar view has been expressed by Hon’ble Supreme Court in the case of Jasmer Singh Vs State of Haryana & another reported in (2015) 4

SCC 458. Para 14 and 15 of

the judgment are extracted below:-

“14. On Issue 3, after adverting to the case of State of Punjab v. Kali Dass, wherein the High Court has observed that the workman cannot be

allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent employer with

reference to the said plea, the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Coop. Marketing-

cum-Processing Service Society Ltd. in which it is observed by this Court that there is no period of limitation to the proceedings in the Act.

Accordingly, Issue 3 is answered against the respondent management. The relevant paragraph from Ajaib Singh's case is extracted hereinbelow:

“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 is 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…â€​.â€​

For the aforesaid reasons, there is no scope for interference with the impugned award dated 16.05.2013. The writ petition is liable to be dismissed

and is hereby dismissed. No order as to costs.