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Judgment
K. Chandru
The petitioner is State owned Transport Corporation having their Headquarters at Salem. The petitioner Corporation took over the Register
followed by the erstwhile Annai Sathya Transport Corporation, which is another State owner Transport Corporation. In this Writ Petition, they
have challenged the Award passed by the 1st respondent Labour Court, Salem in I.D. No. 301 of 2001, wherein and by which the Labour Court
by its Award directed reinstatement of the 2nd respondent for the post of Conductor on the basis of last drawn salary of Rs. 2,000/-. Insofar as
the backwages and other attendant benefits are concerned, the Labour Court declined to grant any relief. But while granting reinstatement, it also
ordered service continuity in his employment. Aggrieved by the same, the Writ Petition came to be filed. The Writ Petition was admitted on
31.7.2007. Pending the Writ Petition, this Court granted interim stay. Subsequently, the 2nd respondent workman filed two applications M.P.
Nos. 1 and 2 of 2008 seeking to vacate the interim order and also to pay last drawn wages in terms of Section 17(b) of the Industrial Disputes
Act. Though in the affidavit, there is a statement that they proposed to file cross Writ Petition against the denial of relief given by the Labour Court,
it is stated by the learned counsel for the petitioner that till date, no such Writ Petition hasbeen filed.
IT is seen from the records that the 2ndrespondent was appointed as a Conductor in Annai SathiyaTransport Corporation on 27.08.1979. On
14.02.1985, when he was working in the said post plying between Dharmapuri and Natrampalayam at 10.20 a.m., the bus was checked at Keratti
bus stop and it was found that four passengers who got down in the bus stop were having tickets which were already issued in some other trip and
the records have been corrected. Therefore, he was issued with a charge memo dated 25.2.1985. The 2nd respondent gave his explanation
on6.3.1985 and thereafter the enquiry was conducted.
On the basis of the enquiry report, a second show cause notice was given to him on 11.4.1985. The 2ndrespondent gave explanation dated
''nil''. Considering the entire records, the petitioner Corporation dismissed the 2ndrespondent from service on 9.5.1985. Thereafter, the
2ndrespondent did not do anything to raise an industrial dispute.
In fact, he raised a dispute before the Conciliation Officer in the year 2001. The 2nd respondent did not have any valid explanation for
approaching the Labour Department over a period of 15 years. The Conciliation Officer as he could not bring about mediation gave a failure
report dated 25.4.2001.
It must be noted that Section 2-A of the Industrial Disputes Act was amended by Tamil Nadu Assembly by Amendment Act 5 of 1998 with
effect from 1.11.1988. Therefore, at the time when the 2nd respondent was dismissed from service, there is no provision for Section 2-A of the
Industrial Disputes Act enabling the worker to directly approach the Labour Court without the benefit of any order of reference by the appropriate
State Government.
On the other hand, the 2nd respondent took advantage of the amendment made on 1.11.1988 and then on the strength of the Failure Report
dated 25.4.2001, which is marked asEx.W.1, he filed a claim statement before the 1st respondent Labour Court dated 23.5.2001. In the claim
statement, there is no whisper about 15 years delay in approaching the Labour Court.
The Labour Court registered the dispute as I.D. No. 301 of 2001 on the basis of the amendment to the Industrial Disputes Act by Section 2-A
(2), which dispense with the order of reference by the State and issued Notice to the petitioner Corporation.
The petitioner Corporation filed counter statement dated ''Nil'' (2003). In counter statement in paragraph 3, an objection was raised with
reference to the long delay in raising the dispute.
Before the Labour Court, the 2nd respondent examined himself as W.W. 1 and on the side of the management, one Kuttappa Kuruppu was
examined as M.W. 1. The management also filed entire enquiry proceedings, which were marked as Ex. M. 1 to Ex. M. 15. The Labour Court
found that the enquiry conducted by the management was fair and proper and the charges levelled against the workman were found proved and
the workman was guilty of causing loss of Rs. 7 by issuance of tickets to the four passengers. But, however, the Labour Court held that in the
second show cause notice, there is no reference to the past records or previous penalty received by the workman. On the question of delay in
raising the dispute, the workman in the claim statement stated that due to mental agony, hungry and starvation, he could not approach the Labour
Court immediately. Even that reason was not accepted by the Labour Court. However, the Labour Court held that since the workman has raised
the dispute after 16years from the date of termination and he suffered mentalagony, hungry and starvation during the above period, the punishment
was disproportionate to the gravity of the charges. But, however, both sides have represented that the provisions of the Limitation Act will not
apply to the provisions under the Industrial Disputes Act.
The workman has made a statement that he is not employed elsewhere during the said period. That statement was not denied by the
management. Even though he has raised a dispute before the Government Labour Officer with considerable delay, but on that score, the relief
cannot begranted to him. The Labour Court referred to the judgment of the Supreme Court in Shahaji Vs. Executive Engineer, P.W.D., on behalf
of the workman andthere fore in that view of the matter, it had directed the reinstatement of the workman without back wages but with continuity
of service.
Heard the arguments of Mr. Ravi Bharathi, learned counsel for the petitioner Corporation and Mr. R. Mohammed Nazarullah, learned counsel
appearing for Mr. K.V. Shnamuganathan, learned counsel for the 2ndrespondent.
Though it is stated that the Limitation Act will not apply to the provisions under the Industrial Disputes Act, it does not amount to take up stale
or old cases without reference to the delay and laches, which clearly has to be looked into. The Labour Court also did not look in to other aspects
that at the time when the workman was dismissed from service, Section 2-A(2) of the Industrial Disputes Act was not even in the statute book.
Therefore, in cases which arose before 1.11.1988, it must have an order of reference of the State Government and it cannot betreated as direct
dispute by the Labour Court.
The learned counsel for the petitioner referred to the judgment of the Supreme Court in Technical Teachers Training Institute v. C.
Balasubramaniam, reported in (2007) 15 SCC 722, wherein an identical question came to be considered by the Supreme Court and held that such
a dispute can never be entertained by the Labour Court. Hence, it is necessary to refer to the paragraph No.13, which is as follow:
The amendment to Section 2-A of the Act by Tamil Nadu Act 5 of 1988 came into force on 1-11-1988. The removal from service of the
respondent was in the year 1982. In the light of these admitted facts, we are of the view that the High Court was not right and justified in saying
that the Labour Court should proceed with the adjudication of the dispute and the appellant should urge all the contentions, that were sought to be
urged before the Division Bench of the High Court, before the Labour Court. The respondent chose to approach the High Court challenging the
order of his removal from service and he also took up the matter further in writ appeal unsuccessfully. It is not a case where the respondent
withdrew the writ appeal with a view to approach the Labour Court. He, having allowed the order passed by the Division Bench in writ appeal to
become final, cannot be allowed to reagitate the matter and question the very validity of his removal from service.
On the question of delay, the Supreme Court held that the delay in raising the dispute after 12 years cannot be ignored. In paragraph 15, it was
observed as follows:
One more factor to be kept in view is that although limitation may not be pleaded as a bar but his conduct of approaching the Labour Court
after twelve years after his removal from service and seven years after the Division Bench passed the order cannot be ignored. Merely because the
Tamil Nadu amendment to Section 2-A of the Act came into force on 1-11-1988, it was not open to the respondent to approach the Labour
Court for raising an industrial dispute. If the plea of the respondent is allowed, it may give rise to a situation where the Labour Court even may
have to examine the validity of the order passed by the Division Bench of the High Court which has become final. We are of the view that it cannot
be permitted to happen.
The Supreme Court subsequently in U.P. State Road Transport Corporation v. Ram Singh, reported in (2008) 17 SCC 627 dealt with the
issue relating to stale claim. In paragraph 7, Supreme Court observed as follows:
We are of the view that in the facts and circumstances of the case, the High Court erred in not setting aside the award of the Labour Court.
Apart from the unacceptable manner in which the appellant was denied the opportunity of participating in the proceedings, including being
debarred from cross-examining the respondent, the Labour Court should not have entertained the industrial dispute given the enormous delay. This
Court has in several decisions held that while delay cannot by itself be sufficient reason to reject an industrial dispute, nevertheless the delay cannot
be unreasonable. The decision in Prakash Chandra Sahu2 has reaffirmed this principle. The reason for diligence and promptness lies in the fact that
the records pertaining to an employee might have been destroyed and it would be difficult to obtain witnesses who would be competent to give
evidence so many years later if the Labour Court wishes to hold a further enquiry into the matter. In the present case the delay of 13 years is
unreasonable. The mere fact that the respondent was making repeated representations would not justify his raising the issue before the Labour
Court after 13 years. In any event the last representation was made in 1983 and the industrial dispute was admittedly raised in 1986.The lack of
diligence on the part of there spondent is apparent.
The Supreme Court in yet another judgment in State of Karnataka and Another Vs. Ravi Kumar, , dealt with the case wherein reference made
by the Government was rejected by the Labour Court on the ground of delay and in paragraphs 6 and 8, it was observed as follows:
This Court has repeatedly held that stale claims should not be referred-vide Nedungadi Bank Ltd. v. K.P. Madhavankutty and Executive
Engineer v. Shivalinga. We may also refer to the decision in Regl. Provident Fund Commr. v. K.T. Rolling Mills (P) Ltd. 3 wherein this Court
observed that: (SCC p. 182, para 4)
... when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within
reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of
reasonableness.
The writ petition was dismissed with anobservation that the respondent was at liberty to make an application seeking reference. The contention
of the respondent that reference was made on the direction of the High Court is there fore not correct. As the reference was stale, it ought to have
been rejected on that ground alone.
In view of the above, the Labour Court was wrong in brushing aside the objection made by the management and the Labour Court also has
not considered the fact that by amendment, Section 2-A of the Industrial Disputes Act came into force only on 1.11.1988, which was three years
after the dismissal of the workman. Under the said circumstances, the impugned award is liable to be set aside and accordingly will stand set aside.
The Writ Petition stands allowed. There will be no order as to costs. The connected Miscellaneous Petitions are closed.