Narain Singh vs State of H.P. and Others

Tarlok Singh Chauhan, J.—The petitioner has approached this Court for grant of following reliefs:-

"(a) That a writ of mandamus may kindly be issued to the respondents to refer the dispute of the petitioner to the Hon''ble Labour Court with immediate effect for adjudication.

(b) That record of the case may be summoned in the interest of justice."

The case of the petitioner is that he was engaged as daily waged Beldar in the year 1984 and worked as such till 1998, when his services were disengaged by the respondents without following the provisions of Industrial Disputes Act. He thereafter served a demand notice on the employer with a copy thereto endorsed to the Labour-cum-Conciliation Officer, Nahan. On the basis of this notice conciliation proceedings were initiated and held at Nahan on 3.6.2007 and thereafter on various other dates and ultimately the petitioner came to know that failure report had been submitted by the Labour-cum-Conciliation Officer to the Labour Commissioner as far back in the year 2007, but the case has not been referred to the Labour Court for adjudication, though cases of similarly situated workmen were sent for adjudication to the Labour Court.

In reply to the petition, the respondents have raised preliminary submissions. It is alleged that the Labour Commissioner after examining the report of the Labour-cum-Conciliation Officer and reply filed by the respondent-Department during the course of conciliation found that the petitioner had worked w.e.f. 1979 to 1989 and thereafter "left the job on his own". The petitioner raised a demand notice on 17th July, 2007 and prior to this he did not do anything which showed that the issue was no longer alive and the demand notice was nothing, but an afterthought. Respondent No. 2 concluded that due to lapse of time, dispute has faded away and thereafter acting under Section 12(5) of the Industrial Disputes Act, 1947 he did not find it proper to refer the case to the Labour Court and conveyed the reasons for declining the reference to the petitioner/workmen.

The moot question is as to whether the respondents could have refused to make reference only on the ground that there was a delay of 17 years in raising the dispute. The issue in hand is no longer res integra, in view of the latest pronouncement of 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 and 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 Ganesh Bhavan Patel and Another Vs. State of Maharashtra, , 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, wherein 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)"

In view of the aforesaid exposition of law, the action of the respondents in not referring the case of the petitioner to the Labour Court, that too only on the ground of delay, cannot be countenanced.

Accordingly, the present petition is allowed and respondent No. 2 is directed to make reference to the Labour Court as expeditiously as possible and not later than 30.4.2015.

The petition is disposed of, so also the pending application(s), if any.