Kshetriya Sri Gandhi Ashram ... vs State Of U.P.
2011 Latest Caselaw 2819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 21
 
Case :- WRIT - C No. - 17493 of 1994
 

 
Petitioner :- Kshetriya Sri Gandhi Ashram Maghar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- A.K. Mishra
 
Respondent Counsel :- SC, Gopal Narain, Shyam Narian
 

 
Hon'ble Sudhir Agarwal, J.

1.Reference made under Section 4-K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "1947 Act") by State Government for adjudication by the Labour Court, Gorakhpur relating to dispute pertaining to termination/retrenchment of 48 workers has not seen light of the day for almost 17 years for the litigious intelligence of petitioner-employer who challenged the reference and got an ex parte interim order on 13.12.1995 staying proceeding before the Labour Court until further orders. Though, in the meanwhile, twice the writ petition has been dismissed for want of prosecution/default and restored but ultimate fate is that the matter has remained pending hereat leaving Labour Court incapable to adjudicate the reference finally till date. This is, in true sense, a test of patience and survival on the part of poor workmen. How many have actually survive is yet to be seen.

2.The facts, giving rise to the dispute, may be stated in brief as under.

3.Kshetriay Sri Gandhi Ashram, Maghar, Basti (hereinafter referred to as the 'Gandhi Ashram') is the employer who has approached this Court under Article 226 of the Constitution.

4.Gandhi Ashram initially commenced its activities at Meerut in 1925 and was registered in 1928 as a Society under Societies Registration Act. Objectives of Gandhi Ashram consented by initial promoters, i.e., Board of Trustees constituting Pandit Jawahar Lal Nehru, Govind Ballabh Pant, Acharya Kriplani, Prof. Ram Saran and Acharya Vichitra Nrain Sharma were as under:

(1) The institution will be run as an Ashram dedicated to the service of poor living in rural areas of India.

(2) All the Ashramies would work as Karya Karta with spiritual zeal and serve the poor as manifestation of dignity because according to Mahatma Gandhi the service of the poor was the best form of worship of God and attribute of true religion as such.

5.With the development of its activities, Gandhi Ashram spread its branches throughout the Country. Recognizing its object and purpose, and to ensure its better development, Parliament enacted Khadi and Village Commission Act, 1956 (hereinafter referred to as "1956 Act") for development of Khadi and Village Industries constituting a Commission therein. Petitioner-Gandhi Ashram is registered with the said Commission. It is said that due to non profitable activities of Gandhi Ashram, it has been granted several exemptions in taxes, i.e. Income Tax, Sales Tax and Octroi Duty.

6.48 workmen through their Union claimed that they were wrongly terminated. An application was filed before Conciliation Officer, Basti who vide order dated 28.1.1986 rejected application on the ground of delay. It said that order dated 31.12.1957 issued by State Government in purported exercised of power under Section 3 (d) of 1947 Act, provided that an industrial dispute ought to have been raised for conciliation within six months but there is delay of more than four years and no justification is found for condontion of delay, therefore, it cannot be condoned. He said application for conciliation barred by time.

7.The said dispute at the relevant time was raised by 15 workmen, namely, Sri Ram Bachan, Nand Lal, Ram Dev, Ram Lakhan Singh, Molai Pandey, Shringi, Shiv Prasad Yadav, Harishchandra, Bajrangee, Ram Kishun, Subhan Allah, Om Prakash, Surya Prakas, Surya Lal, Ram Achal Singh, Ram Achal Dhobi.

8.Similarly, another application of 9 workmen was rejected separately vide order dated 22.1.1986 which related to Sri Vishvnath Singh, Ram Komal Yadav, Zabi Ullah Khan, Ram Achal Yadav, Ram Kumar, Satish Chandra, Komal Rai, Savar, Lal Man.

9.Two separate application were filed by individuals, namely, Thakur Prasad and Ramchandra which were also rejected by order of same date and 5 workers, namely, Sri Shiv Poojan Yadav, Rafeek, Teerath Singh, Ragajan and Ram Awadh filed application which was also rejected by order of same date.

10.After sometime, Ram Narain and Ganesh's application was rejected by Conciliation Officer on 24.9.1986 stating that it was barred by time by two years and two months, which was not condonable.

11.These workmen filed appeal against the orders dated 28.1.1986 stating that under Section 2 (A) of 1957 Act, there is no provision for treating Industrial Dispute barred by time and required for condonation of delay but referring to Government Order dated 31.12.1957, the Deputy Labour Commissioner, U.P., Kanpur rejected appeal vide order dated 26.3.1987 observing that appeal is also barred by time having been filed after one month.

12.Thereafter, 63 workmen including most of the persons who earlier filed applications again filed an application under Section 2(A) of 1947 Act but the same was also rejected by Deputy Labour Commissioner by order dated 4.4.1989.

13.The Workers' Union of Gandhi Ashram then espoused an industrial dispute. The reference was declined by Addl. Labour Commissioner, U.P., Kanpur vide order dated 20.6.1991 on the ground of excessive and undue delay. It is said that State Government, thereafter, suo moto made the impugned reference by notification dated 19.3.1993 stating that there exists an industrial dispute and referred the same for adjudication before Labour Court, U.P., Gorakhpur.

14. Challenging this reference, the present writ petition has been field stating that no conciliation matter was pending, the earlier applications are also rejected repeatedly, therefore, State Government on its own could not have made reference under Section 4-K of 1947Act as it lacks power to review decisions taken by three different authorities earlier.

15.Written argument has been filed on behalf of petitioner through their counsel Sri Ajay Kumar Mishra, Advocate. He contended, besides the facts stated above, that in the afternoon of 7.4.1981 employees of Gandhi Ashram went on strike resulting in conciliation proceeding and settlement whereby striking people were granted liberty to resume their duties. The settlement was arrived on 18.6.1981 which was duly published in newspapers by both the sides. Some of the persons working on daily wage basis abandoned their service and did not join. Some of the workmen were not even engaged by petitioner but reference has been made by State Government illegally without looking into these aspects of the matter. He challenged reference on the following grounds:

(a) In view of the fact that neither the Union nor the workers had made any application for reference and no material existed on record to otherwise form opinion of existence of industrial dispute, making of reference by the State was wholly arbitrary and suffered from the vice of non application of mind, apart from being bad on account of it being not supported by any material or evidence.

(b) There was no espousal of dispute by the Union and therefore in absence thereof making of suo moto reference by the State Government, ignoring the fact that previous attempt for reference had been rejected on account of inordinate laches, renders the impugned order wholly perverse and erroneous on the face of record.

(c) The reference was otherwise highly belated and suffered gross inordinate laches, inasmuch as the alleged act of termination related to 1981, but the reference was made after expiry of more than 13 years for which neither any material existed on record, nor reasons to counted otherwise existed and, therefore, routine making of reference was wholly arbitrary and is liable to be set aside.

(d) No conciliation proceeding were initiated at the instance of the union and no report was otherwise made by the Conciliation Officer, as such formation of opinion by the government for existence of industrial dispute and its adjudication was based on no evidence or material and consequently suffered from the vice of arbitrariness apparent on the face of record.

(e) In the present case, it has been categorically pleaded by the petitioner that no demand for reference was made by the union, as such there existed no material for the State to make reference. The contention of the petitioner has not been controverted by the State by filing counter affidavit, which clearly amounts to admission of the allegation made by the petitioner that no material existed for formation of opinion by the State.

16.The reference was made in 1993 and the interim order was passed by this Court in 1995. Since in the meantime some proceedings have already undergone, therefore, this Court passed the order restraining Labour Court from giving final award in the matter as a result whereof the dispute has not been adjudicated finally so far. All the workmen whose matter has been referred for adjudication by Labour Court are still awaiting for judicial review of their termination, whether legal or not and whether they were deprived of their right to earn livelihood in accordance with procedure prescribed in law and validly or not. Whatever may be the result, but the fact remain that interim order has helped the employer in not deciding a dispute relating to the livelihood of more poor people more than four decades. The matter has remained pending for almost 17 years. The diligence in prosecution by employer is also writ large from the fact that twice the writ petition was dismissed for want of prosecution but on the application of petitioner, later on restored.

17.First of all I will proceed to consider the validity of reference.

18.Sri A.K. Mishra, learned counsel for petitioner contended that under order dated 31.12.1957, the period of raising industrial dispute before Conciliation Officer by filing application is only six months. If an application is filed beyond six months, unless the delay is condoned by Conciliation Officer, application is not entertainable. He further submits that where the Conciliation Officer refused to entertain an application, an appeal lie before the Labour Commissioner whose decision is final. He drew my attention to para 2 of the Government Order dated 31.12.1957 which reads as under:

"(2) Where a Conciliation Officer refuses to entertain an application, he shall record in writing his reasons for such refusal and communicate them to the applicant who may, within one month of the receipt thereof, represent against such order to the Labour Commissioner at Kanpur whose decision in the matter shall be final."

19.So far as the aforesaid Government Order dated 31.12.1957 is concerned, it is interesting to note that the said order was issued by State Government under Section 3 (d) of 1947 Act. Para 15 of Government Order dated 31.12.1957 provides the period for which the said order was issued and reads as under:

"15. Date of commencement and operation of the Order.- This Order shall come into force at once and shall remain in force for a period of one year, with effect from the date of the Order, unless withdrawn or cancelled earlier."

20.Nothing has been shown to this Court nor anything has been placed on record to show that the said period was extended and the Government Order dated 31.12.1957 is still operative. Therefore, the exercise purported to be made under the provision of Government Order dated 31.12.1957 which order itself has ceased to operate decades back, is really untenable.

21.A non-est order is being relied, not only by the petitioner but has been relied by the Officers of Labour Department also. This shows poor knowledge and non updated information of these persons. I required Sri Mishra to place before this Court any order whereby the period of operation of Government Order dated 31.12.1957 has been extended and it was continuing in 1986 and onwards but he failed to place any such order or notification before this Court. Even learned Standing Counsel could not show any such order extending period of operation of Government Order dated 31.12.1957 beyond one year; and thus, the orders passed thereunder, being relied by counsel for petitioner, cannot deprive respondent-workmen from their fundamental right of judicial review against an alleged wrong met to them since the orders passed under a non-est provisions also are non-est in the eyes of law and a nullity having no consequence.

22.Moreover, the power of State Government for making reference under Section 4-K of 1947 Act is not subject to any such restriction. The executive authorities even by exercising subordinate legislative power cannot restrict such statutory powers. It, however, cannot be disputed that a reference can be made only when an industrial dispute is existing on the date the reference is made by State Government and not otherwise. The existence of industrial dispute is a condition precedent. If no dispute is pending, though may have arisen in past, but has diluted or withdrawn with the passage of time, reference cannot be made under Section 4-K of 1947 Act. Interestingly, in the entire writ petition, there is not even a whisper that on the date when impugned reference was made by State Government, no industrial dispute was in existence or continuing. Despite repeated query, learned counsel for petitioner could not place his finger on any of the averment in the writ petition pleading that no such industrial dispute was in existence on the date of notification issued by State Government in exercise of power under Section 4-K of 1947 Act.

23.This Court has no manner of doubt that a reference under Section 4-K cannot be made at the whims and caprice of Government. It also ought not to have been made with extraordinary delay when with the passage of time, industrial dispute has diluted to the extent of restoring industrial peace and harmony and no occasion existed on the date when the reference is made. What is to be referred under Section 4-K is an industrial dispute. Therefore, existence of industrial dispute on the date of reference is a condition precedent. As already said and at the pain of repetition, I reiterate that without such existence, no reference is permissible in law. This has been the consistent declaration of law with reference to Section 4-K of 1947 Act and the pari materia provision under Section 10 of Central Act, i.e., Industrial Disputes Act, 1947.

24.In Sapan Kumar Pandit Vs. U.P.S.E.B. (2001) 6 SCC 222, Apex Court said that there may be 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. However, the Court took care in observing where the dispute remained alive though not galvanised by the workmen or the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. It is said that long delay for making adjudication would be considered by the adjudicating authority while moulding reliefs.

25.In Nedungadi Bank Ltd. Vs. K.P. Madhavankutty (2000) 2 SCC 455, the Court in para 6 said that law does not prescribe any time-limit for Appropriate Government to xercise its power under Section 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 matter. If at the time of reference made by the Government, no industrial dispute existed or could be even said to have apprehended, reference cannot be made.

26.In S.M. Nilajkar Vs. Telecom District Manager (2003) 4 SCC 27, the Court observed that one relevant circumstance where delay in raising an industrial dispute and making reference may be fatal is where the employer claims that it has resulted in material evidence relevant to adjudication being lost and rendered not available.

27.In Shalimar Works Ltd. Vs. Workmen AIR 1959 1217, the Apex Court observed that it is true that there is no limitation prescribed for reference of dispute to an Industrial Tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. It would be appropriate to notice in that case that this delay was considered by the Apex Court in the context of reliefs granted by Industrial Tribunal after adjudication of correctness of termination/retrenchment of workmen and it is in this context referring to delay on the part of the workmen in raising industrial dispute, the Court observed, "In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to made. ..." The Apex Court nowhere said that even if an industrial dispute existed, merely on the ground of some time factor, Government would be bound or under an obligation to decline to make reference of adjudication to the Labour Court or Industrial Tribunal, as the case may be.

28.In Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat AIR 1968 SC 529 (a decision relied on by learned counsel for petitioner), Apex Court said that only such disputes would be referred which have been raised by the workmen and not which did not exist or raised by the workmen.

29.In Director, Food and Supplies, Punjab Vs. Gurmit Singh 2007 (5) SCC 727, the Court said that delay in making reference for adjudication can be considered by adjudicating authority for moulding relief but reference itself cannot be declined for adjudication by the Labour Court or the Tribunal on the ground of relief. The Court also observed if there is a stale claim, reference can be challenged by the employer by way of writ petition contending since the claim is belated there was no industrial dispute. But where the existence of industrial dispute is not challenged, the reference is valid.

30.In U.P.S.R.T.C. Vs. Babu Ram (2006) 5 SCC 433, the Apex Court clearly observed that delay in seeking reference cannot be treated by applying universal formula. It would depend on facts of each individual case but one thing is certain that if no industrial dispute is existing or even could have been apprehended, there would be no occasion for making reference and in observing so, it referred to and relied on its earlier decision in Nedungadi Bank Ltd (supra). The Court also observed where the employer comes with a plea that due to inordinate delay material evidence it has lost, in such case also delay in making reference may be fatal, but not always.

31.Thus there is abundance of authorities to hold that if an industrial dispute is existing, reference made by Appropriate Government cannot be bad merely for delay unless the employer pleads and demonstrates that delay has resulted in loss of material evidence causing serious prejudice to him. In this case the employer has not raised any such plea.

32.So far as the question as to whether the orders passed by Labour authorities at one or other occasion rejecting application of the workmen for conciliation on the ground of delay etc. would bar the State Government from exercising its power under Section 4-K, suffice is to mention that under Section 4-K of 1947 Act, power is subject to only one condition, i.e., existence or apprehension of an industrial dispute and not otherwise. This power of State Government is not judicial or quasi-judicial insofar as merit of dispute is concerned, but it is administrative and requires satisfaction of the Government only to the extent of existence or apprehension of an industrial dispute and nothing more than that.

33.In M/S Athertan Mills, Kanpur Vs. State of U.P. & others 1996 (73) FLR 1683, this Court has said that State Government does not decide a dispute but it only sets the process of adjudication in motion where the employer shall get full opportunity. Therefore it is not a power quasi judicial or judicial requiring an opportunity of hearing to employer before making reference.

34.Considering various authorities on the subject, this Court in U.P. State Electricity Board Vs. U.P. State 2000 (84) FLR 304 held:

"I am of the view that normally a dispute which is an industrial dispute be referred by the State Government under Section 4-K of the U.P. Industrial Disputes Act so long such a dispute exists or the Government apprehends that such a dispute is likely to exist. However, in case there is undue and inordinate as well as unexplained delay, a presumption may arise on the facts and circumstances of a particular case that no dispute exists in presenti and in such case the reference made by the Government may be quashed. In the fact and circumstances of the present case the respondent No. 5 kept silence for more than 15 years and he woke up only after the petition of other co-workmen was allowed and he made no efforts to get his dispute referred to the Industrial Tribunal or Labour Court. Now he cannot be allowed to raise such a dispute after lapse of such a long time."

35.In Western India Watch Company Vs. Western India Watch company Workers Union AIR 1970 SC 1205, in para 9 of the judgment, the Court said:

"In fact, when the Government refuses to make a reference, it does not exercise its power, on the other hand, it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has claimed to make a reference at an earlier stand. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier decision, led to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference."

36.Thus, the orders passed by labour authorities even otherwise had no impact on the reference in question.

37.The next submission is that the dispute was not espoused by any Union and, therefore, could not have been referred by State Government. Petitioner, itself has impleaded Sri Gandhi Ashram Karmchari Union as respondent no. 5. The notification impugned in this writ petition refer to the dispute between Sri Gandhi Ashram Karmchari Union and Sri Gandhi Ashram-the employer. The union had raised industrial dispute which was declined by the Addl. Labour Commissioner, U.P. Kanpur by order dated 20.6.1991 on the ground of excessive delay and not that no industrial dispute existed. As held by Apex Court in Western India Watch Company (supra) that denial to make reference means that the Government has not exercised its power at all and, therefore, when it makes reference, it cannot be said that it is impermissible by application of any principle of law.

38.In this particular case, the employer has not come out with the case that due to delay, employer has lost relevant material evidence and, therefore, cannot put his defence or that there is no any pending industrial dispute or there is any other reasonable ground for challenging impugned notification.

39.The workmen from time to time have tried to pursue their cases as is evident from various orders passed by authorities at different level. Unfortunately all have consistently misdirected themselves by referring to provisions which did not exist. The hight of injustice met to workmen is writ large.

40.Besides above, there is another reason which, in my view, need be examined in this case. Where there exist an industrial dispute between the workmen and industry, the adjudicatory forum is provided by and under a Labour welfare enactment, i.e. 1947 Act. In such circumstance and for such relief, Apex Court has held that remedy by way of civil suit under Section 9 C.P.C. is barred. (see: Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke AIR 1975 SC 2238). The Hon'ble Supreme Court in Premier Automobiles Ltd. (Supra) observed, if the industrial dispute relates to enforcement of a right or obligation created under the Act, then the only remedy available is not the suit but to get adjudication under the Act. Hon'ble Untwallia, J., speaking for an unanimous court, observed:

"The object of the Act as its preamble indicates is to make provision for investigation and settlement of industrial disputes which means adjudication of such disputes also. The Government envisages collective bargaining contracts between the unions representing the workman and the management, a matter which is outside the realm of Common Law or Indian Law of Contract."

41.In Rohtas Industries Ltd. v. Rohtas Industries Staff Union AIR 1976 SC 425, it was observed :

"In Deo v. Bridges 1831 (1) B & Ad 847 at p. 849 are the famous and oft quoted words of Lord Tanterden, C.J., saying:

"Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other."

Barraclough v. Brown 1897 AC 615, decided by the House of Lords is telling, particularly Lord Watson's statement of the law at p. 622:

"The right and the remedy are given uno flatu and one cannot be dis-lociated from the other."

In short, the enforcement of a right or obligation under the Act, must be by a remedy provided unto flatu in the statute. To sum up, in the language of the Premier Automobiles Ltd (supra):

"If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suit or is to get an adjudication under the Act."

42.Thus no remedy in common law was available to workmen. Labour authorities repeatedly failed the attempt of workmen to put in motion the Forum for adjudication available in 1947 Act. This ultimately has resulted in infringement of Constitutional right of judicial review of the workmen.

43.This Court ordinarily do not entertain a writ petition for adjudication of such disputes which normally involve disputed question of facts requiring oral and documentary evidence and relegate the parties to avail alternative remedy under Labour enactments. The Executive authorities failed all attempts of workmen to refer their dispute for adjudication by the forum provided by Labour enactment, i.e., 1947 Act. The ultimate result is that bear minimum scrutiny of employer's act or inaction, as the case may be, having resulted in denying right to earn livelihood to the workmen has not undergone any scrutiny by judicial review.

44.Right of judicial review is a constitutional and fundamental right. Respondents-workmen are being attempted to oust from such right of judicial review founded on certain orders of executive authorities where such dispute has not undergone judicial review at all. Can it be said that right of judicial review would depend on the whims of an executive authority. Any such view apparently would be unconstitutional. Whenever, there is, a wrong, there is and there has to be a remedy. The workmen in the case in hand, for the last 25 years and more, have been denied their right of judicial review in one or other way not by the Adjudicatory Forum but by executive authorities. Still they are awaiting the golden moment when adjudicatory order would be pronounced. I am not concerned with the merit of the case, but denial of judicial review, a fundamental right to the workmen, at the hand of petitioner, who claims to be a charitable nationalistic organization, is extremely abominable. There cannot be more injustice than this. There is a complete apathy to the conditions in which the workmen and their family may have survived. This litigation has resulted not only in denial of right of judicial review to more than four dozen workmen for that last one and half decades, causing serious injustice and starving conditions to these workmen which is beyond imagination. It is true that unfortunately but extraordinary delay has taken place in this Court. To some extent, the system is also responsible but then for that also I find that it is sheer negligence and laxity on the part of petitioner in pursuing their matter since twice the case was taken up by this Court but due to lack of diligence on their part, writ petition was dismissed in default or for want of prosecution twice and was restored on their application. This Court cannot restore back their normal days they would have lived without the agony, torture and the starving-like conditions faced by them in last more than one and half decade when the matter was pending before this Court but certainly can try to provide little solace to them in the form of damages by imposing exemplary cost, which is compensatory in nature against petitioner.

45.Writ petition, in the result, is dismissed with cost which I quantify to Rs. 21,00,000/- (Rupees twenty one lacs).

Dt. 19.7.2011

PS