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Judgment
Subhash B. Adi, J.—Award dated 8th May 2007 in Ref. No. 194/2003 on the file of the Labour Court, Gulbarga is called in question.
Respondent claimed to be a workman, he alleges that, he was engaged as a work Inspector on daily wages from 1.12.1983 and was working continuously till 1.8.1965, and has completed 240 days of continuous service without break and entitled for regularisation of his service.
The respondent sought for conciliation of the proceedings and on failure, the matter was referred to the government and the Government made reference by order dated 7.7.2003. He alleged that, he was making representation and he was under bonafide impression that an older of termination is necessary for raising a dispute or seeking reference. In this regard, there has been delay in seeking the reference. The said claim petition was opposed by the petitioner interatia alleging that, no records are available to show that the respondent had worked for 240 days. A specific contention is raised by the petitioner that, because of the lapse of time, the records of the sub-division are not traced and despite the diligent exercise by the petitioner, it could not able to secure the records and alleged that, there is inordinate delay of 18 years in seeking the reference and because of lapse of time, it is not possible for the petitioner to place any recent to show, whether the respondent had worked on daily wages or not and alleged that the reference has to fail.
Before the Labour Court, workman got himself examined as WW-1 and also got examined one witness as WW-2, one document marked as Ex. W1. On respondents'' side, one witness was examined as MW-1 and Exs. M1 to M3 were got marked. The Labour Court held that the respondent has proved that he had worked for 240 days continuously and further held that, delay should not come in the way of granting the relief of reinstatement The Labour Court relied on an unreported judgment of the Division Bench in W.A. No. 3241/2005 and observed that, delay in raising the dispute is not fetal insofar as reinstatement, but the delay disentitles the workman for monetary benefits like backwages, continuity of service or other consequential benefits. Relying on the said judgment and also the judgment of the Apex Court, the Labour Court passed an award directing the petitioner to reinstate the respondent without backwages and consequential benefits.
Learned Counsel for the petitioner submitted that, the allegation in the claim petition is that, the respondent had worked from 1.12.1983 to 1.8.1985 and the reference is sought in the year 2003 i.e., nearly after 18 years. On account of this inordinate delay, it is not possible to keep the records of the workman in anticipation of his filing of a dispute or seeking reference. Because of the passage of time, no records were available and in this regard, in order to substantiate the case of the petitioner, it made thorough search in the office and was only able to secure the NMRs of December 1983 and June 1984. Except these NMRs, no records were available. He submitted that, Government cannot keep the records pending for years to come in anticipation of any dispute could be raised by the alleged workman. He further submitted that, the delay is always fatal to adjudicate the reference. In this regard, he relied on a judgment of the Apex Court reported in Assistant Executive Engineer, Karnataka v. Shivalinga reported in 2003 SCC 87 wherein the Apex Court has observed at para-6 of the judgment as under:
...In cases where there is a serious dispute, or doubt in such relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same, to such circumstances to make them available to a Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A situation of that nature would render the claim to have become stale....
He relied on another judgment reported in 2005 SCC (L & S) 601 in the matter of Haryana State Coop. Land Development Bank v. Neelam and pointed out from para-18:
It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant on appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10.8.1988. In her replication filed before the Presiding Officer of the Labour Court while traversing the plea raised by the appellant herein that she is gainfully employed in HUDA with effect from 10.8.1988 and her services had been regularised therein....
Relying on the said paragraph and also para-13, learned Counsel submitted that:
...the purport and object of enacting the Industrial Disputes Act only with a view to find out as to whether the provisions of Article 137 of the Schedule appended to the limitation Act, 1963 are applicable or not Although the court cannot import a period of limitation when the statute does not prescribe the same, as was observed in Ajaib Singh''s case reported in 1999 SCC 1054, but it does not mean that irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate Government while making a reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the Labour Court.
The Apex Court in a decision reported in 2006 SCC 791 in the matter of Karnataka Power Corporation Ltd. Through Its Chairman and Managing Director and Anr. v. K. Thangappan and Anr. has observed that, even making representation continuously is not a ground to validate the inordinate delay. Relying on these judgments, learned Counsel for the petitioner submitted that, except stating that, he was making. representation. no material is produced before the Labour Court nor has explained, as to why there was inordinate delay in seeking the reference. The Labour Court though framed the issues and held that there is inordinate delay in seeking reference, however, has passed the award by observing that delay should not come in the way of granting reinstatement He submitted that, by virtue of delay, if the petitioner is not in a position to place relevant records, it is fetal to the interest of the petitioner. The award could not have been passed against the petitioner for its inability to produce relevant records after lapse of several years.
Learned Counsel appearing for the respondent relied on paragraphs-14 and 15 of award, and submitted that, in the claim petition, the respondent has stated that he was making representation and was waiting for favourable reply from the petitioner and also was under bonafide impression that, express termination order is required to raise a dispute. Relying on these two paras, he submitted that there is an explanation given by the respondent for the delay. In this regard, he also relied on a decision reported in Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, and submitted that, if the conciliation proceedings were pending and the reference is made by the Government for adjudication, it presupposes that the dispute did exist on the said date and further submitted that the Labour Court cannot reject the reference on the ground of delay. In support of the said contention, he relied on another judgment reported in 2006(III) LLJ 522 in the matter of Shahaji v. Executive Engineer, P.W.D. and submitted that, once the reference is made, the Labour Court cannot dismiss the reference only on the ground of delay.
The short question that arises for consideration in this appeal:
Whether long delay in seeking reference would entitle the workmen for relief only on the ground that the dispute is referred.
The case of the workman is that, he was appointed on 1.12.1983 and his services were terminated w.e.f. 1.8.1985. The reference is made on 7.7.2003. These dates clearly reveal that, when the reference was made, it was almost 18 years'' from the date of dismissal. In support of the claim, the workman has relied on his evidence and evidence of one witness and has produced one document whereas, the petitioner in its counter statement has categorically stated that, on account of inordinate delay in seeking the reference, the records pertaining to 1983, 1984, 1985 were not traced. It is also specifically mentioned that, despite thorough search, they could not able to get the relevant records to find out as to whether the respondent had worked during that period. A specific contention is raised by the petitioner that, the dispute is raised after 18 years and the petitioner is not in a position to defend it appropriately. The Labour Court framed issue as regards to the delay. However, the Labour Court held that the delay should not come in the way of reinstating the workman by relying on the order passed by the Division Bench of this Court.
There is no limitation prescribed to the Government to make a reference of dispute to the Labour Court. However, the Apex Court taking into consideration that, no limitation is prescribed has held that the reference has to be made within reasonable time, as otherwise, it will be fetal to the Corporation or the Management to defend its case. The Apex Court in the judgment reported in 2006 SCC 791 (supra) at para-5 has observed that:
The factual position as noted above clearly shows that for nearly two decades. Respondent 1 workman had remained silent As rightly painted out by learned Counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, them was considerable delay even in making the representations. Them is no dispute that mere making of representations cannot justify a belated approach.
Delay or laches is one of the factors, which has to be borne in mind while considering the discretionary power to be exercised under Article 226 of the Constitution. In this case, the petitioner has raised a specific ground that, because of the delay, it is not in a position to place the records. The Labour Court ought not to have considered us to, whether the belated approach by the respondent would entitle him to seek relief. In this case, the respondent has not produced any material much less authenticated material to show that be had worked during said period except leading oral evidence. The petitioner has specifically stated that, it is not in a position to produce any record except NMRs of December 1963 and June 1984. In such circumstances, just because the workman has raised the dispute after 16 years, it cannot be said that the petitioner is required to keep all the records intact in anticipation of the dispute that may be filed. The dispute, if it is raised, it has to be raised within reasonable time, not after inordinate delay, as otherwise, entertaining of such belated disputes without any justification would be fatal to the Management or the Corporation to defend and lead relevant evidence by taking appropriate defence in the matter. Though there is no limitation prescribed for reference of the dispute, but it does not mean that the reference can be made at any unreasonable period. While considering the references the granting of relief of reinstatement is not automatic on the ground that the workman has proved that he has worked for 240 days continuously in a year. Several factors are required to be taken into consideration, such as, whether closure of project, abandonment of the office, nature of post and delay on seeking reference.
The Apex Court in such circumstances has observed that the delay is also one of the relevant circumstances, which has to be taken into consideration in passing the award. The judgments relied by the learned Counsel for the respondent, they relate to dismissal of the reference by the Labour Court solely on the ground of delay without even adjudicated. In such circumstances, the Apex Court held that the Labour Court cannot dismiss the reference merely on the ground of delay. In this case, the labour Court has adjudicated the reference and has framed an issue as regard to the delay. Once the issue is framed, the Labour Court having noticed that there is unjustifiable inordinate delay, which will have adverse effect on the management, it ought not to have granted the relief of reinstatement without any justification. Further, the workman has not proved the case as to whether he has worked for 240 days continuously in a year by producing any material. It is pertinent to note that, even if the workman claims that he had worked for 240 days, the initial burden is on the workman to discharge showing that he had worked for 240 days by producing prima facie material and this is also supported by the view of the Apex Court in a judgment reported in (2007) 1 SCC 679 in the matter of Krishna Bhagya Jal Nigam Limited v. Mohd. Rafi.
In the absence of any material showing that the workman has worked for 240 days in a year and in the absence of any justifiable explanation for belated approach in seeking the reference, in my opinion, the workman is not entitled for the relief both on delay as well as on merit also.
Accordingly, the Writ Petition is allowed. The award dated 8th May 2007 in Ref. No. 194/2003 on the file of the Labour Court, Gulbarga is quashed.