Surjit Singh vs Presiding Officer, Industrial Tribunal and Others

S.S. Sudhalkar, J.—This writ petition has been filed by a workman challenging the award of the Labour Court dated September 3, 1997 (copy Annexure P-4) vide which the relief was not granted to the petitioner because it was held to be claimed after inordinate and unexplained delay.

The petitioner is a conductor in Punjab Roadways 5 annual grade increments were withheld without cumulative effect and 12 with cumulative effect. The withholding of increments was challenged by way of demand notice which ultimately resulted in reference to the Labour Court. The particulars of the stoppage of increments is given in Annexure P-2 which are reproduced below:

Sr. No.

Order No. & Date

Number & Nature of increments stopped.

1.

2581/83 T.A. February 19, 1973

One-Temporarily

2.

2536/40 T.A. February 19, 1973

-do-

3.

1689/94 T.A. February 22, 1974

Four -permanently

4.

5631/33 T.A. July 1, 1974

One-permanently.

5.

8660/62 T.A. May 12, 1976

-do-

6.

5027/28 T.A. November 15, 1977

-do-

7.

1128 T.A. February 14, 1978

-do-

8.

6238 T.A. August 18, 1978

Twelve -permanently

9.

1926/27 T.A. June 2, 1978

Ten -permanently

10.

7044/45 T.A. August 28, 1978

One -permanently.

11.

4617/20 T.A. June 26, 1981

-do-

12.

2331/33 T.A. March 17, 1987

Two -permanently.

13.

1538/40 T.A. January 27, 1987

Three -permanently.

14.

3131/35 T.A. April 13, 1987

Three -temporarily.

15.

4494 T.A. May 15, 1987

One -temporarily.

16.

4638/37 T.A. May 16, 1987

-do-

17.

9484 T.A. February 15, 1994

Three Permanently.

Labour Court held that out of 16 orders withholding increments, 4 orders under challenge viz. February 19, 1974, January 27, 1987, May 15, 1987 and May 16, 1987 imposing minor punishments of stoppage of annual grade increments without cumulative effect were made after following procedure prescribed by the Rules. It was held that no infirmity could be found in any of the aforesaid four orders and they were held to be valid. The remaining 12 orders under challenge are those whereby the annual grade increments were stopped with cumulative effect which is major punishment. It was held by the Labour Court that because of the punishment being a major punishment, it was obligatory on the competent authority to follow the procedure prescribed under Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short ''the Rules'') for the imposition of said major punishment failing which the orders are liable to be rejected as illegal. It was also observed that the procedure for imposition of major punishments was followed only in respect of only one order dated February 22, 1974 and, therefore, the order of February 22, 1974 was held to be valid. The remaining orders were held to be invalid. In spite of this, relief was not granted, as mentioned above, because of inordinate delay.

The demand notice is given in 1994. The question, therefore, will be whether the Labour Court was justified in rejecting the relief claimed by the petitioner. Counsel for the petitioner has relied on the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, . In that case the services of the workman were terminated on July 16, 1974. He issued the notice of demand on December 8, 1981. On plea regarding delay was taken by the management before the Labour Court. The Supreme Court after considering various authorities came to the conclusion that no plea of delay being taken by the management, the workman could not show the circumstances preventing him from approaching the Court at an earlier stage and had that plea been taken he would have been able to show the circumstances or even to satisfy the Court that such plea was not sustainable after the reference was made by the Government. It held that the High Court was not justified in holding that the workman had not given any explanation as to why demand notice had been issued after a long period. It further held that the Supreme Court in no case had so far held that Article 137 of the Limitation Act is not applicable to the proceedings under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).

As against this, the counsel for the respondent has relied on the judgment in the case of The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, . It has been held that the dispute in that case which was made after a lapse of 7 years could be raised both on the ground of delay and lack of industrial dispute existing or apprehended. In that case, a bank employee was dismissed from service after an inquiry. The remedy of appeal was availed, however, he was not successful. Seven years thereafter the employee complained of discrimination on the ground that two other dismissed employees were reinstated by the bank but it was no where mentioned as to under what circumstances they were dismissed and were subsequently reinstated. In that case, the notice was issued to the bank on January 17, 1980 demanding the reinstatement of the workman mentioning that two other employees who were dismissed were later reinstated. The workman also filed application before the State Government u/s 10 of the Act. It was refused by the State Government on the Ground that the appropriate Government was the Central Government in that case. On October 31, 1980 the workman moved the Assistant Labour Commissioner of the Central Government for relief who observed that there is no scope for formal proceedings under the Act since the matter was one which arose way back in 1972. The workman filed a writ petition in the High Court complaining that the Central Government has not passed any order in the matter u/s 10 of the Act. The High Court by its order directed the Assistant Labour Commissioner to send his report u/s 12(4) of the Act to the Central Government. In pursuance of the order of the High Court the Assistant Labour Commissioner sent his report to the Central Government for consideration. Central Government declined to make any reference u/s 10 of the Act. This led to the filing of the writ petition in the High Court for directing the Central Government to re-examine the matter. This order was challenged in appeal. The appeal Bench observed as under in The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, :

"4. The apprehension expressed by the learned counsel for the appellant is that the direction of the learned single Judge is capable of being interpreted as a command to the Central Government to make a reference u/s 10. It was also submitted that it is likely to be understood as conveying that the Central Government should not take into consideration all that has happened before the third respondent chose to set the industrial law into motion. We are inclined to take the view that there is no justification for this apprehension. The Central Government is required to examine as to whether an industrial dispute exists as on the date on which it is called upon to make the reference and as to whether, in the circumstances, it is expedient or not to make the reference. For this purpose it will be well within its right to examine the entire facts of the case, including the fact that third respondent admitted his guilt and only pleaded for merciful treatment and accepted the amount due to him in full satisfaction of his claim. All those factors have a bearing on the question as to whether in spite of all these the industrial dispute still subsists meriting reference and also in regard to the question as to whether it cannot be said that in the circumstances, it is expedient to refer, the dispute to the Tribunal. It is also well settled that the question of delay and of the claim being stale or belated are also relevant factors to be taken into consideration in the matter of making an appropriate reference. We have no doubt that the Central Government will consider all these aspects objectively and take a decision on the question as to whether the dispute should be referred u/s 10 of the Act. Making the position clear as aforesaid, this appeal stands disposed of. No costs."

Thereafter, the Central Government made the reference. The employer felt aggrieved and challenged the reference by filing writ petition which was allowed by the single Judge and in the appeal filed before the Division Bench, the validity of the reference was upheld.

The Supreme Court has observed that law does not prescribe a time limit for appropriate Government to exercise powers u/s 10 of the Act. However, it was also observed that this power cannot be exercised at any point of time and to revive the matters which have since been settled and the power has to be exercised reasonably and in a rational manner. It held that there was no rational basis on which the Central Government exercised the powers in a case after a lapse of 7 years after order of dismissal from service. It further observed that at the time of reference no industrial dispute existed or could be even said to be apprehended. It is further observed that a dispute which is stale could not be subject matter of reference u/s 10 of the Act. However, it was also observed that as to when the dispute can be said to be stale would depend upon the facts and circumstances of each case and when the matter has become final, it appeared rather incongruous that the reference be made u/s 10 of the Act in the circumstances as in the said case. The only ground advanced by the workman was that two other employees who were dismissed from service were reinstated but under what circumstances they were dismissed and subsequently reinstated was nowhere mentioned and, therefore, the demand raised by the workman was ex facie bad and incompetent. Moreover, it also observed that it was not a case of the workman that the disciplinary proceedings which resulted in his dismissal were in any way illegal.

The Supreme Court also observed that whenever workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in mechanical fashion make reference of the alleged dispute terming it as an industrial dispute. It was further observed that instead of keeping industrial peace in the establishment which should be the purpose of reference, the reference in that case was destructive to industrial peace and the bank was, therefore, justified in moving the High Court seeking to quash the reference order in question.

In the present case, as is apparent from the award of the Labour Court, respondents contended that the reference is belated and is liable to be rejected on that ground that the workman was not entitled to any relief.

Learned counsel for the respondents-management also cited the case of Sukhbir Singh v. Gurgaon Central Co-operative Bank Ltd, and Anr. 1999 AIJ 637 which is a judgment of Division Bench of this Court. In that case, the dispute was raised after 11 years and specific objection of delay was taken by the management. It was held that a person who sleeps over his rights for inordinate long time cannot normally claim sympathy of the Court unless he gives satisfactory explanation for delay and that no explanation was given. It was also observed that the proceedings in Court are also time consuming and public iunds are spent. The ease of Ajaib Singh (xupra) has been distinguished. The Division Bench observed that the argument that the High Court cannot lay down a period of limitation, was correct. However, it was held that in the case of Ajaib Singh (supra) the factual position was totally different. In that case, the management had not taken any plea regarding delay and only plea raised was that the Labour Court had no jurisdiction to adjudicate the dispute regarding the termination of the service of the Workman.

Considering the judgments mentioned above, following points emerge:

No limitation is prescribed under the Act.

If pica of delay is not taken the delay may not be considered.

If plea of delay is taken, it should be considered.

If a dispute has become stale, it should not be revived after a lapse of long period if the pica regarding delay has been taken.

Considering the above principles and referring to the demand notice (Anncxurc P-2), it can be found that punishments from serial Nos. 1 to 16 could be said to have become stale when the dispute was raised. No appeal/s, no revision/s are said to have been made even against the punishments of 1987. Therefore, the Labour Court was justified in not upsetting the punishments except the punishment at serial No. 17. Punishment at Serial No. 17 was enforced on February 15, 1994. The demand notice is also issued for the same punishment in the year 1994 as can be seen from the facts stated in para No. 2 of the award. No reason is given as to why the punishment dated February 15, 1994 is not considered. The demand notice so far as the punishment staled at serial No. 17 is concerned cannot be said to be belated one. No reason has been assigned as to why the same could not be considered by the Labour Court.

Consequently, this writ petition is partly allowed. The award of the Labour Court is set aside to the above extent and the case is remanded to the Labour Court for consideration of the demand notice qua the punishment dated February 15, 1994 mentioned in the demand notice. No costs.