U.P.S.R.T.C. Thru. M.D. vs Presiding Officer Labour Court ...
2018 Latest Caselaw 662 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 30.11.2017
 
Delivered on 18.5.2018
 
Court No. - 26
 
Case :- WRIT - C No. - 24858 of 2013
 
Petitioner :- U.P.S.R.T.C. Thru. M.D.
 
Respondent :- Presiding Officer Labour Court And Anr.
 
Counsel for Petitioner :- Sunil Kumar Mishra,V.C. Dixit,Vivek Saran
 
Counsel for Respondent :- C.S.C.,R.G. Prasad
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner - UPSRTC (herein after referred to as the 'Corporation') praying for quashing of the Award dated 25.7.2012 passed by the Presiding Officer, Labour Court (III), Kanpur Nagar (herein after referred to as the 'respondent no. 1') by which the respondent no. 2 - Md. Aziz Khan has been directed to be reinstated in service and has been given continuity in service with 50% back wages along with costs of Adjudication Case No. 119 of 2003 amounting to Rs. 1,000/-.

2. It is the case of the Corporation that the respondent no. 2 was working as conductor in Mahoba Depot. On 11.1.1986, one Traffic Inspector Sri M.K. Gupta along with another Traffic Inspector - Sri Sagir Ahmad checked the Bus No. U.D.P. 4844 on Hamirpur Mahoba Road and the petitioner being the conductor misbehaved with the Checking Squad and threatened them also.

3. On 4.1.1986, Sri M.K. Gupta was confronted by the driver of the bus - one Chhuttan Khan, who advised him to make amends with the conductor - Md. Aziz Khan to avoid dire consequences. Sri M.K. Gupta - Traffic Inspector thereafter reported the matter on 6.1.1986 to the Authorities alleging misbehavior on the part of the conductor and the driver and an attempt to intimidate the Checking Squad on the aforesaid two occasions.

4. On 11.1.1986, the Bus No. UDP 4844 plying on Hamirpur Mahoba Road was again inspected near Mahoba crossing at around 1250 hours by Traffic Inspector - B.K. Awasthi and his associate Traffic Inspector - Shiv Charan Lal Dohre. The bus was found to be carrying 55 passengers of which 8 passengers were traveling without tickets. These passengers told the Checking Squad that they had given the money to the conductor for buying the ticket, but the ticket has not been issued by the respondent no. 2. The Checking Squad thereafter tried to make entry of the aforesaid incident in the Way Bill but the respondent no. 2 started abusing the Squad and forcibly snatched away the Way Bill. Chhuttan Khan - the driver drove away the bus thereafter. Sri B.K. Awasthi - Traffic Inspector submitted his report on 13.1.1986 with regard to said incident.

5. On 20.1.1986, the respondent no. 2 was suspended, a charge sheet containing two charges was issued to him on 27.1.1986. The report of misbehavior on 2.1.1986 and 4.1.1986 by Sri M.K. Gupta - Traffic Inspector made on 6.1.1986 was made the basis of the first charge. The report of B.K. Awasthi - Traffic Inspector made on 13.1.1986 was made the basis of the said second charge. The respondent no. 2 replied to the charge sheet the respondent no. 2 was reinstated during the disciplinary proceedings.

6. The enquiry was conducted by a retired Judicial Officer on the panel of the Corporation i.e. Mr. Chhatrasal Singh. He examined M.K. Gupta - the complainant and B.K. Awasthi, and also the respondent no. 2, and came to a conclusion that the incident of 2.1.1986 with regard to misbehavior with Sri M.K. Gupta and the incident of 11.1.1986 with regard to intercepting of the bus no. UDP 4844 by the Checking Squad headed by Sri B.K. Awasthi - Traffic Inspector carrying passengers without ticket, had been proved against the respondent no. 2.

7. A show cause notice was issued to him along with enquiry report. The respondent no. 2 replied to the show cause notice which was considered properly before the order of termination of service was issued by the Appointing Authority on 29.1.1992.

8. It has been submitted by the learned counsel for the petitioner that the respondent kept quiet for eleven years and filed a claim only before the Conciliation Officer which was referred to the Government and the Government thereafter referred the Reference to the respondent no. 1. In a question "whether the termination of service of Md. Aziz Khan son of Md. Ismail Khan by means of order dated 29.1.1992 is just and legal?"

9. The respondent no. 1 entertained the said Reference without application of mind as to whether an Industrial dispute was in existence as was referred to it by the Government, because it ought to have been rejected outright on grounds of delay. The respondent no. 1 also failed to consider that there was a statutory remedy of filing Appeal under Rule 69 of the U.P.S.R.T.C. Service Rules which was also not availed of by the respondent no. 2.

10. The respondent no. 2 had admitted in the enquiry before the Inquiry Officer as also in his oral statement before the respondent no. 1 that endorsement regarding eight passengers was still not made on the Way Bill by him at the time when the bus was stopped for checking on 11.1.1986 by the Checking Squad and eight passengers were found traveling without tickets.

11. The respondent no. 2 had participated in the domestic enquiry and had not raised any argument regarding alleged malice of the departmental officials conducting the disciplinary proceedings. The respondent no. 2 had also admitted before the respondent no. 1 that he was working as a labourer during the period of suspension and after termination of his service.

12. Learned counsel for the petitioner submitted that the respondent no. 2 would have retired on 30.9.2010, and therefore, there was no ground for the respondent no. 1 to direct his reinstatement on 25.7.2012. Also, the respondent no. 1 failed to appreciate that the respondent no. 2 had not worked since 1992 in the Corporation and he could not therefore be paid salary for the period that he had not worked.

13. A counter affidavit has been filed by the respondent no. 2 wherein it has been stated that the respondent no. 2 was initially engaged as a labourer in a permanent vacancy in Rath Depot of U.P.S.R.T.C. Due to his honesty and sincerity, he was promoted to the post of conductor in the year 1980.

14. It has been stated by respondent no. 2 that on 2.1.1986, Bus No. UDP 4844 was stopped and checked at Maudaha crossing by the Checking Squad consisting of M.K. Gupta and Sagir Ahmad. The Checking Squad while checking the tickets of passengers did not punch the same nor did they return them to the passengers instead the tickets handed over to them for checking by the passengers. Certain passengers wanted their tickets for claiming traveling allowance and refund of extra money paid. One such passenger demanded refund of amount written on the back side of his ticket which had already been torn by Sri M.K. Gupta. Sri M.K. Gupta having destroyed the ticket was unable to return the same. The respondent no. 2 checked the entire cash box and the money which was surplus, was refunded to the passenger concerned.

15. The Checking Squad travelled upto Maudaha crossing in the same bus and the respondent no. 2 told the Checking Squad that instead of tearing up the tickets of passengers, they should have punched them and returned them to the passengers at which Sri M.K. Gupta got annoyed and made a false report on 6.1.1986.

16. On 11.1.1986, the Checking Squad consisting of Sri B.K. Awasthi and Sri Shiv Charan Lal Dohre stopped the bus and counted the passengers. There were forty nine passengers traveling in bus and all were having valid tickets issued by the respondent no.2. Thereafter, Sri B.K. Awasthi checked the Way Bill and found entry regarding two passengers having not been made on the Way Bill. He started to make an entry on the Vehicle, but was stopped by Sri Shiv Charan Lal Dohre the other Traffic Inspector saying that the respondent no. 2 - Md. Aziz Khan was an honest and religious man and it may be that he may not have had the time to make such entry by the time the bus was stopped for checking.

17. Sri B.K. Awasthi thereafter made an endorsement on the Way Bill of the respondent no. 2 as "stopped and checked" and allowed the bus to proceed but later on, for reasons best known to him, he made a false report on 13.1.1986 alleging that the respondent no. 2 had snatched the Way Bill from his hand and sped the bus away so that a proper endorsement about passengers traveling without ticket could not be made by him on the Way Bill. This report was not counter signed by the other Traffic Inspector - Shiv Charan Lal Dohre, but believing the said false report, the respondent no. 2 was charge sheeted.

18. The retired Judicial Officer conducting the enquiry submitted three enquiry reports relating to three incidents dated 2.1.1986, 4.1.1986 and 11.1.1986. Two charges were said to have been proved. The Regional Manager, Jhansi thereafter issued a show cause notice to the respondent no. 2 to which he replied stating correct facts in his reply, which was not considered and the termination order was passed arbitrarily on 29.1.1992.

19. The respondent no. 2 preferred a Departmental Appeal on 16.4.1992 before the Appellate Authority which Appeal remained pending and was not decided for a long time. Therefore, the respondent no. 2 filed a claim before the Conciliation Officer which was referred by the Government and registered as Adjudication Case No. 119 of 2003.

20. In the counter affidavit in paragraph 22, the respondent no. 2 has specifically stated that Departmental Appeal was filed and proof of filing of the same can be gathered from the letter dated 30.11.1996 filed as Annexure 6 to the counter affidavit. This letter was written by Divisional Manager - U.P.S.R.T.C., Lucknow to the Regional Manager - U.P.S.R.T.C., Jhansi mentioning therein that the Appeal filed by the respondent no. 2 was rejected and through letter dated 2.6.1994, the Regional Manager was asked to communicate the said rejection to the workman. The Divisional Manager had specifically asked the Regional Manager as to when the fact of rejection of Appeal of the workman was communicated to the workman and if it was not so communicated, the reason for non communication. The Regional Manager was asked to fix responsibility and to indicate the reason for non communication to the Headquarters.

21. A rejoinder affidavit has been filed by the Corporation in which it has not disputed the content of paragraph 22 specifically with regard to Annexure CA-3 i.e. the letter dated 30.11.1996 issued by the Divisional Manager to the Regional Manager, asking the reasons why communication of rejection of Appeal on 2.6.1994 was not made to the respondent no. 2.

22. Since, at the time of filing of writ petition no Annexures relating to issuance of charge sheet, reply of the respondent no. 2, or submission of enquiry report was filed along with the writ petition, a supplementary affidavit was filed on behalf of the Corporation on 2.5.2013 bringing on record a true copy of the charge sheet and copies of the three enquiry reports relating to the three charges; and copy of the reply to the show cause notice issued to the respondent no. 2.

23. Initially, when this writ petition was filed, this Court was pleased to grant an interim order on 3.5.2013 directing the impugned award to remain stayed till further orders of the Court.

24. When the case came up for hearing, Sri Vivek Saran, who appears for the petitioner argued that the respondent no. 2 was caught with eight passengers traveling without tickets in the bus going from Hamirpur to Mahoba on 11.1.1986. After regular disciplinary proceedings were conducted in accordance with law, the Inquiry Officer found the respondent no. 2 guilty. A show cause notice was issued to the respondent no. 2 along with the enquiry report and his reply was duly considered before the termination order was passed on 29.1.1992. The respondent no. 2 kept quiet for almost eleven years and filed his claim before the Conciliation Officer only in 2003. Later on, a Reference was made to the respondent no. 1 which was registered as Adjudication Case No. 119 of 2003. The Presiding Officer did not look into the objections of the Corporation regarding the maintainability of the Adjudication Case.

25. Learned counsel for the petitioner placed reliance upon judgment rendered by the Hon'ble Supreme Court in Prabhakar Vs. Joint Director, Sericulture Department 2015 (15) SCC 1 to buttress his argument that a delayed claim could not have been entertained by the Labour Court.

26. Learned counsel for the petitioner also argued that since the respondent no. 2 had already reached the age of superannuation on 30.9.2010, no reinstatement could have been directed by the respondent no. 1 in its Award dated 25.7.2012. He relied upon a judgment rendered by the Hon'ble Supreme Court in State of Gujarat Vs. Bhanji Gopal Karchhar 2016 (12) SCC 645.

27. Sri Vivek Saran also argued that the respondent no. 2 had admitted in his oral statement before the respondent no. 1 that he was gainfully employed as a labourer during the time he remained out of service i.e. immediately after his termination order, but the said fact of gainful employment had not been considered at all by the respondent no. 1 and reinstatement had been ordered with 50% back wages.

28. Sri Vivek Saran has pointed out that the respondent no. 1 in the impugned award had relied upon a Circular issued on 12.2.1996 by the Headquarters to come to the conclusion that the Inquiry Officer should have recorded the statements of all ticketless passengers during the enquiry, which was not done. Learned counsel for the petitioner pointed out that the disciplinary proceedings were initiated in January 1986 and the termination order was passed in January 1992, therefore a circular which was issued on 12.2.1996 could not have been relied upon by the respondent no. 1 to hold that the disciplinary proceedings against the respondent no. 2 were not conducted in a fair and regular manner.

29. Sri Vivek Saran has argued on the basis of the enquiry report submitted on 24.9.1991 by the Inquiry Officer that the respondent no. 2 was allowed opportunity to cross examine the witnesses i.e. the Officers who had made the complaints against the conduct of the respondent no. 2. The respondent no. 2 was also given a personal hearing.

30. Sri Vivek Saran has also pointed out that in the oral statements made by the respondent no. 2 before the Labour Court, he had admitted that certain entries in the Way Bill were left to be made when the bus was stopped for checking on 11.1.1986 by the Checking Squad. As such, it cannot be said that the finding of guilt recorded by the Inquiry Officer was vitiated in any way or was without any basis.

31. Sri R.G. Prasad, learned counsel for the respondent on the other hand has pointed out from the charge sheet given to the respondent no. 2 by the Corporation that it was a joint charge sheet issued against the driver - Chhuttan Khan and the conductor - Md. Aziz Khan. In the enquiry, Chhuttan Khan was exonerated and this fact has been noted by the respondent no. 1 in its award.

32. Sri R.G. Prasad has argued that the charges in the charge sheet were absolutely vague and the reports of the incident made by the complainants on 6.1.1986 and 13.1.1986 regarding misconduct of the respondent no. 2 were never proved, as the complainant never appeared before the Inquiry Officer to substantiate the report made by him.

33. Sri R.G. Prasad has also referred to the fact that the charge sheet clearly shows that the respondent no. 2 earlier had an altercation with the Checking Squad, and had objected to the Checking Squad tearing the tickets instead of punching them after checking. This altercation was mentioned in detail by the respondent no. 2 also in his explanation to the show cause notice which was not considered by the Appointing Authority. His specific case was regarding malicious intent of the members of the Checking Squad which was not looked into by the Appointing Authority.

34. Sri R.G. Prasad has also explained the delay in filing of the claim before the Conciliation Officer by the respondent no.2 only in 2003; by saying after the dismissal order was passed on 29.1.1992, the respondent no. 2 filed a Departmental Appeal which Departmental Appeal remained pending and was not decided. It was only after a long wait for the decision of his Departmental Appeal that the respondent no. 2 filed the claim which was referred under Section 4-K of the Act to the Labour Court.

35. Learned counsel for the respondent no. 2 has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Mahavir Singh Vs. State of U.P. Electricity Board & others 1999 (82) FLR 169 to argue that once the termination order was held to be illegal, the Reference order could not have been rejected. The dispute may linger on for a number of years, but that would not mean that the dispute had ceased to exist. It may be true that the dispute was raised belatedly before the Labour Court but the Labour Court by not awarding full back wages, but only 50% of the back wages from the date of termination till reinstatement, had taken care of any prejudice caused to the employer due to filing of the claim belatedly.

36. Learned counsel for the respondent no. 2 has also placed reliance upon a judgment rendered by the Supreme Court in Hardwari Lal Vs. State of U.P. & others 2000 (84) FLR 3 wherein the Supreme Court had observed that the non examination of the complainants / members of the Checking Squad vitiated the whole enquiry, the Supreme Court had held that in the absence of examination of the complainant, the impact of the testimony of the complainant was not considered therefore it could not be said that a proper enquiry was held by the Authority. The dismissal order was quashed and the Supreme Court had awarded 50% of the back wages to the appellant therein.

37. Learned counsel for the respondent no. 2 also argued that there was failure to make entry with regard to only two tickets in the Way Bill and not to eight passengers as was wrongly reported by the members of the Checking Squad. With regard to the said two tickets also, the respondent no. 2 had deposited the money at the Depot when the bus reached its destination and he had also submitted the Way Bill. In such a case punishment of dismissal was too harsh. It has also been that but for this incident occurring in January 1986, no other misconduct had ever been reported in the long years of service, the respondent no. 2 had rendered in the Corporation till his termination in 1992.

38. Sri R.G. Prasad has also argued that the respondent no. 1 has carefully examined the evidence on record and recorded findings of fact. The Labour Court being the final Court of facts, the High Court should not in the exercise of jurisdiction under Article 226 or Article 227 of the Constitution, interfere in the such findings of fact unless they are shown to be perverse. The Corporation had not been able to substantiate the finding of guilt with regard to both the charges before the respondent no. 1. In such a case, the respondent no. 1 had rightly set aside the order of dismissal and directed reinstatement with 50% of back wages.

39. Having heard the learned counsel for the parties.

40. I have also perused the impugned award. The respondent no. 1 has taken into account the pleadings of both the parties before it in detail and also the arguments raised by their counsel. The respondent no. 1 has noted that while the workman had filed documentary evidence relating to reply to the charge sheet and reply to the show cause notice and also of filing of the Appeal before the Appellate Authority, no documentary evidence was filed by the Corporation at all despite repeated opportunity is being given to him.

41. It has recorded a finding that the Tribunal cannot be expected to wait indefinitely for the Corporation to submit its documentary evidence.

42. In fact, the Corporation had not even filed a copy of the enquiry reports of the Inquiry Officer dated 24.9.1991 on the basis of which a finding of guilt was recorded against the respondent no. 2. There was no explanation as to why no oral statement was made by the complainants of both the complaints dated 6.1.1986 and 13.1.1986 before the respondent no. 1.

43. The Way Bill which was material evidence which was referred to by the complainant in his report dated 13.1.1986 was also not produced before the Labour Court. It was not explained by the Corporation as to why the Checking Squad having found eight passengers to be travelling without tickets, made no effort to issue tickets to them or make an endorsement on the Way Bill after checking the cash box for extra cash, if any.

44. The respondent no. 1 has observed that it is not enough that the workman participated in the domestic enquiry held by the Corporation or that he was allowed to cross-examine the complainant. Only participation would not result in the domestic enquiry to be certified as reasonable and fair. Neither the complainants were examined nor any eye witnesses, nor passengers said to be travelling without tickets.

45. The respondent no. 1 has referred to a Circular issued by the Corporation Headquarter on 12.2.1996 that where a bus is caught with passengers traveling without tickets special efforts should be made to record the statement of such passengers or their personal details at the time of such checking and entry should be recorded in the Way Bill. It has been recorded by the respondent no. 1 that although the Circular dated 12.2.1996 was issued much after the domestic enquiry was completed in the case of the respondent no. 2, but the fact remained that the Checking Squad did not make any effort to check the cash box for extra cash nor made any effort to issue tickets to ticket-less passengers, nor made any such endorsement of issuing such tickets to ticket-less passengers on the Way Bill.

46. Even the allegation of the Corporation that the respondents conduct in the past had not been satisfactory and he had been issued several warnings in the past was not substantiated by filing any documentary evidence in this regard. In the absence of any evidence being produced by the Corporation to substantiate the finding of guilt recorded by the Inquiry Officer in the enquiry report dated 24.9.1991, the Labour Court has set aside the order of dismissal dated 29.1.1992 and directed for reinstatement along with continuity in service and 50% of the back wages and costs of litigation as aforesaid to the respondent no. 2.

47. When the writ petition was filed, the Corporation had not filed any documentary evidence even before this Court. Later on, a supplementary affidavit was filed bringing on record the charge sheet by the workman, the enquiry report and the show cause notice. The order of dismissal was however not brought on record, nor the statements allegedly made by the complainants before the Inquiry Officer on the basis of which the enquiry report dated 24.9.1991 was submitted giving a finding of guilt.

48. From a perusal of copies of the three enquiry reports regarding to three incidents of misbehavior dated 21.1.1986, 4.1.1986 and 11.1.1986, it is evident that the complainant of the two reports dated 6.1.1986 and 13.1.1986 were examined by the Inquiry Officer and that the respondent no. 2 was also given opportunity to cross-examine the complainant. As such, it cannot be said that the procedure prescribed under the Rules for conduct of domestic enquiry was in any way violated. However, the conclusion reached by the Inquiry Officer regarding guilt of the respondent no. 2 cannot be said to be a correct conclusion on the basis of evidence produced before the Inquiry Officer. The Inquiry Officer has in his enquiry report dated 24.9.1991 reached the presumption of guilt of the workman without any detailed examination of evidence.

49. This Court is aware that the three enquiry reports dated 24.9.1991 have been filed only before this Court and were not filed before the respondent no. 1. It cannot be said that the Corporation made any genuine effort before the Labour Court to place all correct facts regarding the controversy. It even baldly denied the fact of filing of Appeal by the respondent no. 2 against the order of dismissal, although a copy of the Appeal and a copy of the letter dated 30.11.1996 issued by the Divisional Manager to the Regional Manager, Jhansi making a mention therein of rejection of the Appeal of the respondent no. 2 on 2.6.1994 itself, were filed by the workman before the Labour Court.

50. In the writ petition also, a bald assertion has been made that no Appeal was filed by the respondent no. 2. When documentary evidence was filed in counter affidavit by the respondent no. 2 that the Appeal was filed and a statement regarding its pendency causing delay in approaching the Labour Court was made; in the rejoinder affidavit filed by the Corporation, the letter dated 30.11.1996 was not specifically denied. The Corporation has not stated that the Appeal was rejected on 2.6.1994, but its decision was not communicated to the respondent no. 2, allowing him to remain under the impression that his Appeal was pending for a long time. The Corporation has not been fair to the respondent no. 2 or to this Court.

51. Coming to the judgment relied upon by the learned counsel for the petitioner viz Prabhakar Vs. Joint Director, Sericulture Department and another 2015 (15) SCC 1, this Court finds therein a detailed discussion by the Hon'ble Supreme Court of earlier binding precedents relating to the law of limitation not applying to the Industrial disputes. Under the Industrial Disputes Act, no limitation is prescribed.

52. The Hon'ble Supreme Court on the basis of aforesaid discussion of earlier binding precedents summarised the legal position in paragraph 42 and 42.1 to 42.6 as under:-

"42. On the basis of the aforesaid discussion, we summarise the legal position as under:

42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that "any industrial dispute exists or is apprehended". The words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial / apprehension of industrial dispute of the apprehension of an industrial dispute is necessary. Such existence / apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is a apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.

42.2. Dispute of difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and / or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.

42.3. Since, there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non existent dispute which cannot be referred.

42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.

42.5. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the Suit is dismissed or he withdraws that Suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.

42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court / Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act, therefore, no relief can be granted."

53. The Hon'ble Supreme Court in the aforecited judgment of Prabhakar (supra) went on to observe in paragraphs 43 & 44 thus:-

"43. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matter.

44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsetting effect which it is likely to have on the employer's financial arrangement and to avoid dislocation of an industry".

54. From a careful analysis of all binding precedents, the Hon'ble Supreme Court itself has come to a conclusion that where the workman did not acquiesce to the decision of the employer to terminate his service and filed his Appeal or representations against the same and such availing of Departmental remedy could not be disputed or the Appeal or Revision or representation remained pending, it cannot be said that the dispute "ceased to exist". It was always open for the Labour Court in case of a belated claim to mould the relief claimed by the workman so that no grave prejudice is caused to the financial interests of the employer.

55. With regard to the other judgment referred to by the learned counsel for the petitioner i.e. the State of Gujarat Vs. Bhanji Gopal Karchhar 2016 (12) SCC 645, this Court finds that the aforecited judgment is distinguishable on facts. The respondent workman therein was dismissed from service after a departmental enquiry on 10.12.1968. He filed a suit challenging the dismissal. Such suit was dismissed on 25.10.1971. The workman thereafter filed a First Appeal which also ended in an order of dismissal on 22.11.1973 the respondent was due to superannuate in 1992. After a long period of silence since the dismissal of the First Appeal in 1973, the respondent workman sought and obtained an Industrial Reference in the year 1995. The Labour Court by an Award dated 19.5.1998 directed reinstatement with continuity of service and 40% of back wages. It was pointed out to the High Court that the workman had already superannuated in the year 1992. The High Court modified the Award by directing that the Award be so understood that the respondent had continued in service and therefore was entitled to all retiral benefits.

56. The Supreme Court observed that there was apparent infirmity in the Award and the High Court ought to have interfered with it the Award dated 19.5.1998 was set aside as well as the order passed by the High Court dated 6.8.2004. However, the respondent having received all amounts as due to him under the Award, no recovery was directed to be made from him, but no further pension etc. was to be given to him also.

57. This Court has not found the respondent no. 2 to have kept quiet unnecessarily or to have acquiesced to the order of dismissal. The respondent no. 2 had filed an Appeal. The Appeal was rejected in 1994, but the order was not communicated to him. It came to his knowledge only in November 1996 or thereafter.

58. The respondent no. 2 thereafter filed his claim before the Conciliation Officer which was ultimately referred by the Government and registered as Adjudication Case No. 119 of 2003. It cannot be said that the respondent no. 2 was at fault for the inordinate delay in raising the Industrial dispute.

59. The Labour Court has also been careful in granting only 50% of the back wages even though it has found the dismissal order to be vitiated in law.

60. This Court therefore does not find any good ground to show interference in the impugned Award. However, the same is modified with respect to the direction for reinstatement. It has been admitted by the respondent no. 2 in his counter affidavit that he reached the age of superannuation on 30.9.2010. Therefore, the Award dated 25.7.2012 is modified to this extent that the respondent no. 2 shall be considered to be in continued service only till 30.9.2010.

61. The dismissal order dated 29.1.1992 is set aside. The respondent no. 2 shall be treated to have honorably retired and will be entitled to all retiral benefits, giving him continuity in service. The Corporation shall ensure compliance with the Award impugned, as modified by this order, within a period of three months.

62. The writ petition is dismissed subject to the observation as aforesaid. No order as to costs.

Order Date :- 18.5.2018

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