State Of U.P. And Another vs Presiding Officer Labour Court ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.     
 
Court No. - 1							     
 

 
Case :- WRIT - C No. - 40301 of 2013
 

 
Petitioner :- State Of U.P. And Another
 
Respondent :- Presiding Officer Labour Court And Another
 
Counsel for Petitioner :- Suman Sirohi S.C.
 
Counsel for Respondent :- Diptiman Singh,S.C.
 

 
Hon'ble J.J. Munir,J.

Heard Mr. Shreeprakash Singh, learned Standing Counsel appearing for the petitioners and Mr. Diptiman Singh, learned Counsel appearing for the respondent-workman.

2. This writ petition is directed against an award of the Presiding Officer, Labour Court, Lucknow dated 27.01.2012 (published on 12.04.2012) passed in Adjudication Case no.252 of 2005. Also impugned is an order of the Presiding Officer, Labour Court, U.P., Lucknow dated 07.03.2013 passed in Misc. Case no.51 of 2012, rejecting an application by the petitioners, seeking a review of the award.

3. It appears that an application dated 25.09.2003 was made by the second respondent, Ram Chandra1 to the Conciliation Officer, Bareilly, under Section 2-A of the Uttar Pradesh Industrial Disputes Act, 19472. The application aforesaid was made with an acknowledged delay of 12 years, 3 months and 25 days. It was accompanied by an application under Section 5 of the Indian Limitation Act, 1963, seeking condonation of the delay in making it.

4. It was said in the application for conciliation that the workman was employed in the establishment of the Assistant Engineer, Second Head Works Division, Sharda Canal Bifurcation, Pilibhit as a daily-wager, since the month of August, 1987. He was retained by an oral order made by the Assistant Engineer, last mentioned. The Superintending Engineer, 5th Division, Irrigation Works, Bareilly, the Executive Engineer, Head Works Division, Sharda Canal, Bareilly, and the Assistant Engineer, Second Head Works Division, Sharda Canal Bifurcation, Pilibhit, were arrayed as opposite parties to the application under reference. The said opposite parties are represented before this Court by the two petitioners, that is to say, the State of Uttar Pradesh through the Chief Engineer, Irrigation Division, Government of U.P., Lucknow and the Executive Engineer, Head Works Division, Sharda Canal, Bareilly. Be it the three opposite parties arrayed in the conciliation proceedings at Bareilly, or the petitioners here, they shall hereinafter be referred to as the 'employers'.

5. Shorn of unnecessary details, it was said in the application seeking conciliation that the workman discharged his duties with utmost devotion and never gave cause for complaint to the employers. The employers deputed him to do work in the office that was ministerial in nature. He was given an assurance that after some time, his services would be regularized and made permanent as a Clerk. It is also said that believing the said representation by the employers to be true, the workman continued to discharge the duties of a Clerk, in addition to his duties. He did not demand any additional wages. It is the workman's case that he repeated his request orally to the employers, asking them to regularize his services on a permanent post, but the employers would ward off the request. In the month of April, 1991, the workman claims to have forcefully asserted his claim to regularize and to be made permanent, which led the employers to orally terminate his service in the month of May, 1991. He was not served with any notice or paid notice pay or retrenchment allowance. It was also said in the application for conciliation that the workman met the employers time over again and orally requested them to take him back in their employ. However, no heed was paid to his requests. The workman claims that left with no alternative, he got a notice dated 04.07.2003 served by his learned counsel through registered post. There, it was demanded that the workman be taken back in service and his case be considered for regularization with confinement of the status of a permanent employee.

6. There is an assertion in the application seeking conciliation that the workman worked with the employers from the month of August, 1987 to May, 1991 continuously. He functioned for more than 240 days in each calendar year during the aforesaid period of time. On the basis of the aforesaid assertion, the workman said that he was entitled to be regularized in service and declared a permanent employee. It is said in paragraph no.7 of the application that a period of 12 years, 3 months and 25 days had elapsed since his services were dispensed with by the employers. This delay was sought to be explained on the basis that during this period of time, the workman had made repeat requests orally and through written applications to the employers to remit the wrong, but to no avail. It was said that the delay was not intentional or the outcome of laches. The workman requested that for resolution of the industrial dispute between parties, a Conciliation Committee be constituted. The Committee so constituted may ensure that the workman's illegal termination from service, with effect from the month of May, 1991, be declared inoperative and void, and that he may be reinstated with continuity in service together with all consequential benefits. The workman's application seeking conciliation was registered on the file of the Conciliation Officer-cum-Assistant Labour Commissioner, Bareilly as C.P. Case no.1 of 2004.

7. Notice of the said application was issued to the employers, requiring them to attend before the Conciliation Officer-cum-Assistant Labour Commissioner, Bareilly on 13.01.2004 at 11.00 o'clock in the morning hours. The employers filed a reply to the said conciliation application, wherein it was pleaded in paragraph no.1 that the workman was retained as a daily-wager to do the work of a Beldar. He worked from the month of August, 1987 to the month of May, 1991, as per details furnished in a statement accompanying the employers' reply dated 06.02.2004 before the Conciliation Officer, Bareilly. The attached schedule of details about the number of days in each calendar year, month-wise that the workman discharged his duties with the employers, is detailed below:

"श्री राम चन्द्र गंगवार पुत्र श्री दयाराम गंगवार,निवासी ग्राम कनमन बहेडी जिला बरेली से विपक्षी सं0-3 के अधीन के दैनिक वेतनभोगी बेलदार के रूप में किये गये कार्य का वर्ष /माह वार विवरण।

 
क्रमांक माह 	कार्य दिवस 		क्रमांक	माह	कार्य दिवस
 
1.		8/87 	शून्य			1.	1/90 	शून्य
 
2.		9/87 	शून्य 			2.	2/90 	शून्य
 
3.		10/87 शून्य 			3.	3/90 	शून्य
 
4.		11/87 शून्य 			4.	4/90 	शून्य
 
5.		12/87 शून्य    		5.	5/90 	शून्य
 
			कुल-शून्य 		6.	6/90 	शून्य
 
1.		1/88 	शून्य			7.	7/90 	शून्य
 
2.		2/88 	शून्य 			8.	8/90 	शून्य
 
3.		3/88 	शून्य			9.	9/90 	शून्य
 
4.		4/88 	शून्य 			10.	10/90 शून्य
 
5.	5/88 	शून्य			11.	11/90 शून्य
 
6.	6/88 	26 दिन		12.	12/90 शून्य
 
						कुल - शून्य
 
7.	7/88 	19 दिन		1.	1/91 	शून्य
 
8.	8/88 	26 दिन		2.	2/91 	शून्य
 
9.	9/88 	शून्य			3.	3/91 	शून्य
 
10.	10/88 शून्य 			4.	4/91 	शून्य
 
11.	11/88 26 दिन		5.	5/91 	शून्य
 
12.	12/88 शून्य     					
 
	कुल - 	97 दिवस			कुल - शून्य 
 

 
1.	1/89 	26 दिन
 
2.	2/89 	28 दिन
 
3.	3/89 	शून्य
 
4.	4/89 	शून्य
 
5.	5/89 	14 दिन
 
6.	6/89 	30 दिन
 
7.	7/89 	27 दिन
 
8.	8/89 	शून्य
 
9.	9/89 	30 दिन
 
10.	10/89 शून्य
 
11.	11/89 शून्य
 
12.	12/89 शून्य  
 
	कुल - 155 दिन 
 

 
भवदीय
 
वी0के0श्रीवास्तव
 
सहायक अभियन्ता द्वितीय
 
वाइफरकेशन पीलीभीत
 
प्रतिवादीगण सं0 1 से 3 की ओर से।"
 

8. The workman made an application in C.P. Case no.1 of 2004 before the Conciliation Officer, Bareilly dated 12.03.2004 seeking to withdraw/ not press the conciliation application on ground that it had some technical flaws, which the workman wanted to rectify and present a fresh application. The withdrawal application was allowed by the Conciliation Officer vide order dated 12.03.2004 and the conciliation case together with the delay condonation application were directed to be consigned to records.

9. A month later on 12.04.2004, the workman moved a fresh application under Section 2-A of the Act of 1947, on occasion before the Conciliation Officer, Lucknow, again accompanied by an application seeking condonation of delay. Here, it was said that the employers had retained the workman with effect from 01.11.1986 on a monthly/ daily salary of Rs.450/- per month to work as a Beldar. His services were illegally terminated with effect from 01.06.1991. No reason was assigned for dispensing with the workman's service. It was also said that the workman went time over again to the employers asking to be re-engaged, but to no avail. It was also said that the employers' establishment had a work force of about 15000 strong. The workman, time over again, made oral requests and also wrote applications, requesting the employers that the dispute may be amicably resolved, which the employers did not do. It was, therefore, prayed that proceedings under Section 2-A may be drawn and concluded early, ensuring that the workman is reinstated in service with continuity and back wages. The application was registered before the Conciliation Officer-cum-Assistant Labour Commissioner, Lucknow as Application no.141 of 2004.

10. Upon notice of the said application being issued to the employers, they filed a reply dated 06.08.2004. It was pointed on behalf of the employers that the workman had earlier approached the Conciliation Officer-cum-Assistant Labour Commissioner, Bareilly vide C.P. Case no.1 of 2004. There also, he had sought condonation of delay. After the employers had filed the reply in the said case, the workman had withdrawn the conciliation proceedings citing technical flaws in the application, attended with the assertion that after removal of defects, a fresh application would be presented. A copy of the earlier application was appended by the employers to their reply. An objection was raised to the effect that the workman was a resident of Bareilly and was employed with the employers' establishment, comprising the Second Division Bifurcation at Pilibhit. As such, the cause of action did not arise within the territorial jurisdiction of the Conciliation Officer at Lucknow, but was cognizable by the Conciliation Officer, Bareilly. About the other matters, it was said that their stand as the one taken before the Conciliation Officer, Bareilly, remains unchanged.

11. The Conciliation Officer/ Deputy Labour Commissioner, Lucknow vide his order dated 15.12.2005, proceeded to make a reference under Section 4-K of the Act of 1947 to the Labour Court n the following terms (translated into English from Hindi vernacular):

"Whether termination of services of their workman, Sri Ram Chandra son of Daya Ram, a Beldar by the employers with effect from 01.10.1989 is lawful and proper? If not, to what relief the concerned workman is entitled and what are the particulars of his lawful dues?"

12. The aforesaid case was registered on the file of the Presiding Officer, Labour Court, U.P., Lucknow as Adjudication Case no.252 of 2005. Both parties were put under notice and called upon to file their written statements. The workman filed his written statement dated 27.01.2006, whereas the employers filed their written statement dated 11.05.2006. The employers in written statement said that their stand remains the same as that carried in their reply in C.P. Case no.141 of 2004 before the Conciliation Officer-cum-Assistant Labour Commissioner, Lucknow Region, Lucknow. The reply dated 23.03.2005 submitted in the conciliation proceedings was enclosed with the written statement filed on behalf of the employers. It may be emphasized that in the reply dated 23.03.2005 submitted in the conciliation proceedings on behalf of the employers, a schedule about the period of engagement of the workman with the employers was detailed. It was furnished for the years 1988 and 1989, indicating month-wise break-up of days that the workman had worked with the employers. The total number of days during each of the two calendar years was also detailed. The said figures, detailed with the reply dated 23.03.2005, filed before the Conciliation Officer is relevant. These read:

"वर्ष 1988

क्रमांक माह कार्य दिवस

1. 6/88 26 दिवस

2. 7/88 19 दिवस

3. 8/88 26 दिवस

4. 9/88 शून्य

5. 10/88 शून्य

6. 11/88 26 दिवस

7. 12/88 23 दिवस

कुल- 120 दिवस

वर्ष 1989

1. 1/89 शून्य

2. 2/89 28 दिवस

3. 3/89 7 दिवस

4. 4/89 शून्य

5. 5/89 14 दिवस

6. 6/89 30 दिवस

7. 7/89 27 दिवस

8. 8/89 शून्य

9. 9/89 30 दिवस

कुल- 136 दिवस

(एन0सी0 उपाध्याय)

सहायक अभियन्ता, द्वितीय

बाईफरकेशन"

13. Rejoinder statements were filed by the employers and the workman. At the hearing before the Labour Court, the workman led both oral and documentary evidence. However, the employers, who sought time on 24.02.2011, 04.05.2011, 01.09.2011 and 15.10.2011 to lead evidence, did not do so. This fact is recorded in the impugned award. It is also recorded there that on 15.10.2011, the employers' opportunity to lead evidence was closed. Both parties were then heard through their various representatives by the Labour Court, which, by its award impugned, held that the workman had worked for more than 240 days and his services had been terminated in breach of Sections 6-N, 6-P and 6-Q of the Act of 1947. The reference was answered in the manner that termination of the workman's services was not lawful or proper, and that he is entitled to reinstatement. It was further awarded that the workman was entitled to reinstatement with effect from 01.10.1989 with continuity in service. However, towards back-wages, 25% was awarded.

14. Aggrieved, the present writ petition has been instituted by the employers.

15. I have heard the learned Counsel for parties and perused the record.

16. The foremost objection that has been raised by Mr. Shreeprakash Singh, the learned Standing Counsel appearing for the petitioners, is that the claim has been raised belatedly, after the passage of about 15 years. It is submitted that it is a stale claim, where, on the own showing of the workman, the first time that he initiated proceedings for conciliation before the Conciliation Officer-cum-Assistant Labour Commissioner, Bareilly, it was with a delay of 12 years, 4 months and 25 days. It is for the said reason that the workman-employee applied for condonation of delay before the Conciliation Officer at Bareilly. The conciliation proceedings initiated at Bareilly were withdrawn on 12.03.2004 and a month later, on 12.04.2004, the Conciliation Officer at Lucknow was moved. It is submitted that according to the reference, the services of the petitioner were terminated w.e.f. 01.10.1989. Therefore, it was about 15 years after the employer removed him, that the workman raised an industrial dispute. It is emphasized that during this period of time, there is no dependable evidence to show that the workman pursued his claim, or the industrial dispute remained alive. It is urged that according to the employers' case, after 30.09.1989, the workman ceased to turn up for work. He was a daily-wager and free to do so. The evidence regarding applications submitted by the workman to the employers, seeking reinstatement in service, that have been brought on record, are dubbed as self-serving documents. It is urged that there is no proof of dispatch or tender of these applications. It is particularly emphasized by Mr. Shreeprakash Singh that the only evidence about postal dispatch of these applications are UPC Certificates, that are no evidence about postal dispatch. The only admissible evidence about postal dispatch is the receipt of dispatch by registered post.

17. For the principle that stale claims that are dead do not give rise to an industrial dispute, the learned Standing Counsel appearing for the petitioner has placed reliance on the decision of Supreme Court in Nedungadi Bank Ltd. v. K.P. Madhavan Kutti3. To the same end, reliance has been placed on another decision of the Supreme Court in Haryana State Corporation Bank Ltd. v. Neelam4. It is submitted on the strength of these decisions that though there is no limitation prescribed under the Act, during which the industrial dispute may be raised, but it does not mean that irrespective of facts and circumstances of the case, a stale claim must be entertained by the Government or adjudicated by the Court. Mr. Shreeprakash Singh emphasizes that going by the principle laid down in the two Authorities under reference, the workman ought to have approached the Court at the earliest as in case of delay, the aim and object of raising an industrial dispute stands defeated. The learned Standing Counsel has further placed reliance upon a decision of this Court in State of U.P. and Another v. Rajesh Kumar Awasthi and Another5. In the said decision, a delay of about 19 years was considered fatal.

18. Mr. Diptiman Singh, the learned Counsel for the workman, on the other hand, submits that a delay condonation application was filed by the workman, giving sufficient explanation for the delay in the initiation of conciliation proceedings. The delay was condoned by an order dated 09.03.2005. It is pointed out by Mr. Singh that a copy of the said order is annexed as Annexure CA-1 to the counter affidavit. This order was never challenged by the petitioner, and has become final. He submits that once reasons for the delay have been explained and the Conciliation Officer has passed a specific order condoning the delay, no objection can be taken to the impugned award on ground of the dispute being raised after a number of years. Mr. Singh submits that there is no limitation prescribed under the Act of 1947 and if it is an industrial dispute that is still alive on the date the reference is made, mere passage of time cannot vitiate the reference or the resultant adjudication. Reliance in this connection has been placed by Mr. Diptiman Singh on the decision of the Supreme Court in Kuldeep Singh v. General Manager, Instrument Design Development and Facilities Centre and Another6 and also on another decision of their Lordships in Prabhakar v. Joint Director, Sericulture Department and Another7.

19. There is no quarrel between parties that there is no limitation prescribed under the Act of 1947, where the passage of a specific time period from a determinate event would act as a temporal bar to the raising of an industrial dispute. The principle on which stale claims are said to be not valid for adjudication is the extinguishment of the industrial dispute with passage of time. While passage of time is in itself no ground to apply the principle of laches to the adjudication of an industrial dispute in the manner it is applied to equitable jurisdictions, where no rule of limitation is applicable, passage of a considerable period of time is in itself a pointer to the industrial dispute having subsided. But again, since claims subject matter of industrial disputes are not to be discarded because of the mere passage of a long period of time, delay cannot be the sole index to infer a bar to the industrial dispute. An industrial dispute that is raised after a long passage of time, but with events in the interregnum to show by tangible evidence that issues had remained alive, about which there was either strife or attempts at settlement, the industrial dispute would still be alive. If the dispute is alive after passage of a considerable period of time in the sense that it is still a potent peril to industrial peace, the reference cannot be thrown out as a State claim. It is here that the principle may be regarded differently from laches where long inaction in the commencement of proceedings by itself would attract disentitlement, unless the delay is satisfactorily explained.

20. Here, the parties have come up with slightly varying dates about the workman's engagement and the time that he was retrenched. But, on the evidence available and that found by the Labour Court, there is no issue that the workman claims to have been removed or retrenched illegally w.e.f. 01.10.1989. During this period of time, the earliest that the workman raised the industrial dispute by moving the Conciliation Officer at Bareilly was through an application under Section 2-A of the Act of 1947, dated 25.09.2003. The said application was accompanied by a delay condonation application. In Paragraph No. 7 of the application seeking conciliation moved at Bareilly, the workman has acknowledged that it was being made 12 years, 3 months and 25 days after the event, that is his retrenchment. This application was later on withdrawn under an order of the Conciliation Officer at Bareilly dated 12.03.2004 with liberty to represent. A second application was moved at Lucknow on 12.04.2004. That may not be of much relevance to the issue about the claim being stale, and, therefore, not worth adjudication. But, it does show that before 25.09.2003, there was no evidence by way of any step taken by the workman under the law, that may evidence the industrial dispute.

21. Again, merely because steps under the law are not taken to raise an industrial dispute or towards it, it cannot be evidence about the industrial dispute being smothered. In the world of industrial relations, it is a potent probability that the workman may be negotiating with the employers individually or bargaining through a union. If there be evidence about a negotiation with the employer in any manner going on, where there is some kind of an assurance to the workman, that his grievance might be redressed, the industrial dispute cannot be taken to be effaced. Nevertheless, there has to be evidence aliunde to show that the industrial dispute was alive between parties, though no steps available under the law were taken or the remedies availed by the workman. If evidence of that kind is there, certainly, the process of resolution of an industrial dispute under the Act of 1947 can be initiated, notwithstanding whatever time has passed.

22. To show that the dispute was alive between parties, Mr. Diptiman Singh has drawn attention of this Court to a list of documents annexed as Annexure CA-3 to the counter affidavit. A perusal of the said list shows that there are some 13 applications dated 30.07.1991 to 10.02.2003, said to be addressed by the workman to the employer regarding his re-engagement. Although, those applications have been filed before the Labour Court and bear Exhibit W3, W4 - W15, there is no dependable evidence about these applications being actually delivered to the employer. There are certificates of posting that have been filed before the Labour Court, relative to these applications. Certificates of posting are highly suspect evidence about dispatch, given the reputed unworthiness of these documents, of which the Court can take judicial notice. Even assuming that the various applications seeking re-engagement from the year 1991 to the year 2003 were made by the workman, there is not a solitary document to show that during this long period of 12 years and more, there was anything said by way of an assurance by the employer, on the basis of which the workman might reasonably be held to have thought that some kind of a negotiation about the industrial dispute is underway or that he must wait for the outcome of some bargain. At best, these applications show unilateral efforts by the workman across a decade and two years and may be more, to seek re-engagement, with the employers consistently turning a deaf ear. This being the best inference that can be drawn from the evidence comprising these applications made to the employer, it is difficult to hold that the industrial dispute was alive in all these years. Mr. Diptiman Singh has then drawn the attention of this Court to the evidence of the workman's witnesses, which includes him. He has testified as D.W.1. On the issue of delay, D.W.2, Narendra Babu Saxena, who was employed with the employers from 26.02.1975 to 30.06.2008 as a Clerk and Senior Assistant, has testified to the fact that after being removed from service, the workman came back to the employers time over again and made applications, but the employer did not re-engage him. This evidence is expressed by D.W. 2 in the following words :

Naukri se nikale jane ke baad yeh baar-2 aate rahe aur prarthna patra dete rahe, lekin unko sahab se nahi rakha.

23. Likewise, D.W.3, Daya Ram, who is said to have been posted with the employers from 15.01.1959 to 31.01.1993 on some post described as a "patrol", has said in his testimony :

Kshramik nikaale jaane ke baad division office me sahab se naukri par rakhne ke liye bar-bar aate rahe, aur prarthna patra aadi bhi naukri par rakhne ka dete rahe.

24. Accepting the said evidence to be true and unrebutted, for the employers have not led any, all that could be inferred is that the workman unilaterally approached the employer during all this period of twelve years and more, endeavouring to be re-engaged. While this evidence may show efforts made by the workman to secure his employment back and denial by the employer, the absence of any further action by the workman, with there being no negotiation underway between him and the employer, cannot lead to an inference about an industrial dispute being alive in all this while. The torpidity of the workman in the face of denial by the employers over a very long period of time is, in fact, a clear evidence of his inaction. It does not show any kind of strife or dispute.

25. An industrial dispute is something that threatens industrial peace. A workman, who, across a period of 12 years and more, is content to visit the employers premises, requesting the latter to re-engage him, without doing anything more, cannot be said to be a party to an industrial dispute. The workman, who does not agitate his rights during this long passage of time, must be held to have accepted his fate and submitted to the retrenchment. The ex-employers' premises, being nothing more than a frequent rendezvous to the workman, with no further action to redress his unlawful retrenchment, shows an industrial dispute, if at all, that has withered away with time. That is precisely the case here. In this connection, reference may be made to the decision of the Supreme Court in Prabhakar (supra). After a survey of authority on the point, their Lordships have summarised the principles thus :

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 dispute or 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 apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.

42.2. Dispute or 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 and, therefore, no relief can be granted.

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 matters.

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 unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."

(Emphasis by Court)

26. Incidentally, in Prabhakar, reference against the order of termination made after 14 years was held not to give rise to an industrial dispute, that was alive and worth adjudicating.

27. The other decision relied upon by Mr. Diptiman Singh does not lay down any principle that may come to the workman's rescue on the facts and evidence obtaining in this case. In Kuldeep Singh, it was held by their Lordships :

28. The view expressed in Sapan Kumar Pandit [(2001) 6 SCC 222 : 2001 SCC (L&S) 946] which is identical to our case has been considered and followed in the subsequent decision, namely, S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] . In both the decisions, the principles laid down in Nedungadi Bank [(2000) 2 SCC 455 : 2000 SCC (L&S) 283] have been considered and distinguished. We have already mentioned that in Sapan Kumar Pandit [(2001) 6 SCC 222 : 2001 SCC (L&S) 946] , this Court followed the principles enunciated in a three-Judge Bench decision of Western India Match Co. [(1970) 1 SCC 225 : AIR 1970 SC 1205]

29. At this juncture, it is useful to remind and reiterate the finding rendered by the Labour Court on Issues 1, 5 and 6 holding that the termination of the services of the workman/the appellant herein without complying with the provisions of Section 25-F is illegal, null and void and deserves to be set aside. Undoubtedly, the management has to follow the provisions of the Act while effecting termination, in fact, which was accepted by the Labour Court and the management has not challenged the same before any forum.

30. In view of the above, law can be summarised that there is no prescribed time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government "at any time" refer the dispute to a board or court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference.

31. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or forum for adjudication.

32. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/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, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the management or by the State Government.

28. Now, the facts in Kuldeep Singh show that the services of the workman in that case were terminated w.e.f. 26.05.1992. He claimed that he had worked as Data Entry Operator with the employers from 08.10.1990 to 28.11.1991 and thereafter on ad hoc basis from 28.11.1991 to 26.05.1992. It was his case that he had worked for more than 240 days in the twelve preceding months of the calendar. His juniors had been retained in service and fresh hands hired, after termination of his services. The employers were claimed to have violated Section 25-F to 25-H of the Industrial Disputes Act, 19478 (for short, ''Central Act'). It appears from the report of the decision in Kuldeep Singh that after prolonged correspondence, the Government made a reference to the Labour Court on 22.11.1999. There was, thus, a period of more than five and a half years that elapsed between the workman's termination from service and the reference under Section 10(1)(c) of the Central Act. The Labour Court appears to have found the termination of services of the workman in violation of the Central Act, but answered the reference against him on the ground of delay alone. The Labour Court held that there was a delay of more than five and a half years between the termination of services of the workman, subject matter of the reference, and the time when demand for reference was raised. This delay was held to be fatal. The High Court affirmed the Labour Court.

29. It has also figured in the decision of their Lordships that the finding of the Labour Court on merits of the adjudication by the Labour Court were not impugned in the writ petition preferred by the employers. The decision in Kuldeep Singh further shows that the representations made by the workman during the period of five and a half years of delay, that were held to have kept the industrial dispute alive, were made in the context and circumstances best detailed in paragraph no. 13 of the report in Kuldeep Singh, which reads:

"16. The appellant workman has furnished the following information to show that after termination, he made several representations to various authorities. They are:

(i) Representation dated 10-6-1992 to the Hon'ble Minister of the respondents' Department.

(ii) Representation dated 11-5-1993 to the Chief Secretary of Haryana State.

(iii) Representation dated 7-12-1994 to the General Manager, IDDC, Ambala.

(iv) Representation dated 4-10-1995 to the General Manager, IDDC, Ambala.

(v) Representation dated 16-7-1996 to the Manager, Harton, Chandigarh.

Besides that, he attempted for the same job twice as under:

(i) Applied and interviewed for the same post out of 4 vacancies advertised in The Tribune dated 19-9-1992.

(ii) Applied and interviewed for the same post out of 60 vacancies in The Sunday Tribune dated 14-5-1995.

The factual details have not been seriously denied by the management."

(Emphasis by Court)

30. The decision in Kuldeep Singh, holding the workman to have explained the delay of five and a half years by representing his cause to the employers and the other Authorities, including the Hon'ble Minister in the appropriate Department, has clear distinguishing features with the present case. For one, the period of five and a half years involved in Kuldeep Singh though in itself not relevant and decisive about the industrial dispute being alive, the period of time, given a man's short life, and that too, the working part of it, where representations were made by the workman to the Authorities and the Government may still be inferred to have kept the industrial dispute alive.

31. In the present case, by contrast, the period of time stretches to 15 years or at least more than 12 years, during which nothing more than representations to the employers and oral requests were made. During this period of 12 or 15 years, there is no case of the workman representing his grievance to the Government or any Authority, unlike in Kuldeep Singh. If a workman, given the limitation and the short time of a man's working life, rests content with unilaterally representing his cause just to the employers with no reasonable expectation of a possible relief or settlement, an inference about the industrial dispute being eclipsed with time has to be drawn. In the present case, decidedly, the workman has waited too long before he made the first move before the Conciliation Officer.

32. That apart, the evidence about the workman actually representing his case during all these 12 plus or 15 years is in grave doubt. About that issue, this Court has remarked in the earlier part of this judgment. By contrast in Kuldeep Singh, the factum of representations to various Authorities of the employers and the Hon'ble Minister was not seriously denied by the employers. The said feature also distinguishes the workman's case from that in Kuldeep Singh.

33. By contrast, the facts in Prabhakar show that the services of the workman were terminated on 1st April, 1985 and the industrial dispute was raised in the year 1999. It was raised after a period of more than 14 years. The workman there was appointed as a Clerk in the Sericulture Department of the Government on 1st April, 1984 and his services were terminated on 1st April, 1986. The relevant facts are succinctly set out in paragraph no.4 of the report in Prabhakar, which read:

4. The petitioner was appointed as a Clerk in the Sericulture Department, Government of Karnataka, Belgaum on 1-4-1984. His services were terminated on 1-4-1985. During the period 1-4-1985 till 1999, the petitioner did not approach any judicial/quasi-judicial authority challenging the said termination. In fact, not even a notice or legal notice was served upon the Management questioning the validity of the said termination. However, some time in the year 1999, the petitioner approached the appropriate Government alleging that his services were terminated illegally and in violation of the provisions of Section 25-F of the Act. Insofar as delay is concerned, in the claim made by the petitioner, the only explanation given was that he had approached the Management on several occasions with request to reinstate him in service and pay back wages and other consequential benefits. He also alleged that though the Management initially assured that they would reinstate him, but dragged on the matter on one pretext or the other and when they ultimately told him that they would not reinstate him into service, he had no alternative but to raise the industrial dispute. The conciliation proceedings had started, which ended in failure. Thereafter, the appropriate Government referred the matter regarding validity of termination of the petitioner for adjudication.

34. The principles enunciated in Prabhakar show that contextually, it was a case with striking similarity to the case in hand. The workman commenced conciliation proceedings after a period of 14 years and for the delay, the only explanation given by him was a repeat approach to the Management on several occasions with a request to reinstate him in service. The Labour Court had answered the reference in favour of the workman, ordering his reinstatement in service without back-wages. The learned Single Judge of the High Court had upheld the award. The Division Bench of the High Court thought that it was a case where there was no industrial dispute alive worth adjudication, and quashed the award. Their Lordships of the Supreme Court upheld the view taken by the Division Bench, considering the period of time elapsed and the action of the workman in merely representing his case with the employers to explain his delayed approach for conciliation under the Act of 1947.

35. In the present case also, this Court finds that the workman spent too long a period of time, if at all he is to be believed, in going back to the employers time over again, where it was apparent that the same would elicit no meaningful response. At best, the workman was flogging a dead horse, from which the only inference that can be drawn is one of a dead industrial dispute. That apart, this Court reiterates, at the cost of some repetition, that the evidence in the case does not inspire confidence about the workman actually representing his case with the employers through all the applications that he has placed on record.

36. In view of all, that has been noticed hereinabove, this Court is of opinion that the industrial dispute that was referred for adjudication to the Labour Court, was indeed stale and a dead dispute.

37. In the result, this writ petition succeeds and is allowed. The impugned award dated 27.01.2012, published on 12.04.2012 passed by the Presiding Officer, Labour Court, Lucknow in Adjudication Case no.252 of 2005 is hereby quashed.

38. There shall be no order as to costs.

Order Date :- August the 6th, 2021

Anoop / I. Batabyal