Raj Pal vs The Secretary (Labour) and Another

By this writ petition, the petitioner has challenged the validity of award dated 21.1.1998 whereby the Secretary(Labour) has refused to refer the

dispute as alleged by the petitioner to have arisen. The order of the Secretary (Labour) reads as under:

It is an admitted fact that Shri Raj Pal was called upon to report to Asstt. Director EC(EZ) DDA vide letter dated 19.7.1989. There is nothing on

record to suggest that he was not allowed to join duty by the Asstt. Engineer/Jr. Engineer as alleged by him. Assuming that he was not allowed to

join as stated by him, a duty was cast on him to approach the higher authorities in the management and failing which to this office. The workman

did nothing about it and remained dormant for a period of about 61/2 years. The workman has also failed to justify this inordinate delay in filing this

dispute before the Conciliation Officer. After having considered the facts and circumstances of the case, I find that this is not a fit case to be sent

for adjudication to the Labour Court/Industrial Tribunal.

The petitioner alleged that he was terminated from services in the year 1989. It is the case of the petitioner that he was called upon to join duty

vide letter dated 19.7.1989, however, when he went to join his duties, he was not taken on duty. The petitioner thereafter kept silent for about six

and a half years and approached the Labour Commissioner after six and a half years making allegations that he was not allowed to join duty in

July, 1989. When he was allegedly refused to join duty, he neither made any complaint to labour authorities nor to any union nor he served any

notice upon the employer that he was not allowed to join duty. I consider that where the allegations made by the workman are that he was not

allowed to join duty, it is obligatory upon the workman to approach the labour authorities so that labour inspector can approach the management

for his joining duty and if there is refusal, same is recorded or he should approach the Conciliation Officer, who may called upon the management

to explain the refusal of duty. The Labour Commissioner cannot refer a dispute blindly only on the allegations of the workman without there being

any material to support the same. Before a dispute can be referred, he has to ensure about the existence of a genuine dispute. There should be

some evidence about termination of services of the workman, either there should be a letter of termination or there should be a report of Labour

Inspector that he had accompanied the workman and the workman was not allowed to join. A bare allegation of termination made by the

workman after 61/2 years, without there being any other material, would not be sufficient to refer a dispute about termination. The petitioner should

have raised a demand of his reinstatement, promptly with the management, by serving a notice. In order to refer dispute, there should be some

proof of the workman being employed with the management. I consider that stale/fake or pseudo disputes cannot be referred by the Appropriate

Government and the power of referring a dispute must be exercised with caution and care. The dispute must be referred, reflecting the real position

and the stand of both the parties.

It is settled law that stale dispute is no dispute. In the case of Nedungadi Bank Limited v. K.P. Madhavankutty and Ors. 2000(1) SLR 636, the

Supreme Court held:

Law does not prescribe any time limit for the appropriate government to exercise its powers u/s 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 Government has exercised powers in this case after lapse of about seven years of

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 u/s 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 u/s 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 industrial dispute was ex facie bad and incompetent.

In view of reasons stated above, I find no force in the writ petition. The same is hereby dismissed. No orders as to costs.