State Of Maharashtra vs Sayyedlal Gani Syyed
2002 Latest Caselaw 881 Bom

JUDGMENT

A.P. Deshpande, J.

1. As the same judgment and Award passed by the Judge, 2nd Labour Court, Ahmednagar in Reference IDA No. 56 of 1993 dated December 27, 1999 is challenged in both these petitions, the said petitions are being disposed of by this common judgment.

2. Writ Petition No.717 of 2001 is filed by the State of Maharashtra, through the Executive Engineer, Public Works Division, Ahmednagar (hereinafter referred to as "the employer") and the Writ Petition No.4759 of 2001 is filed by one Sayyedlal Gani Sayyed (hereinafter referred to as the "employee"). The Labour Court by its judgment and award partly allowed the Reference made under Section 10 of the Industrial Disputes Act by the Deputy Commissioner of Labour, Nashik Division, Nashik and thereby granted reinstatement with continuity of service to the employee and rejected his claim for payment of full back wages. The employer challenges the order to the extent it grants reinstatement with continuity of service to the employee and employee has challenged that part of the order by which the entire claim for back wages is denied and rejected. The relevant facts giving rise to the controversy and which are necessary for adjudicating the issue involved in these petitions are narrated, in brief, herein below.

3. The employee was working as a labourer in the employment of the employer and was doing the work of maintenance and repairs of the road. It is not in dispute that the employee has rendered the service from January 1, 1983 to February 1987 and his services came to be terminated orally without issuing written order. The employee was terminated from service at the end of February, 1987. He chose to file statement of claim in the year 1993 which came to be referred to the Labour Court. The Labour Court has recorded a finding of fact on appreciation of evidence and material on record that:

"In the preceding year i.e. February 1, 1986 to February 1987 he rendered actual service for 202 days. In view of Kalelkar Settlement Maharashtra Government Gazette August 24, 1967 Annexure IV(6) deals with holidays.

The Mazdpors should continue to enjoy weekly paid holidays and 3 paid special holidays on January 26, August 15 and October 2, as hithertofore plus weekly off come to 48 days plus 3 days. The Kalelkar Settlement is applicable to the second party. Therefore, total days of work comes to 253 days."

The Labour Court further proceeded to record a finding that the termination of the employee was in breach of Section 25-F and Section 25-G of the Industrial Disputes Act. Because of the delayed filing of the statement of claim, the Labour Court has denied all back wages to the employee. On the above factual position, the learned counsel appearing for the employer, has contended that the reference itself was not competent and ought to have been rejected solely on the ground of inordinate delay. The learned Assistant Government Pleader appearing for the employer has placed reliance on a judgment of the Apex Court reported in Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors., . On the other hand, the learned counsel appearing for the employee has contended that the reference cannot be rejected solely on the ground of delay and has placed reliance on two judgments of Apex Court reported in (1) Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr., and (2) Sapan Kumar Pandit v. U. P. State Electricity Board and Ors., AIR 2000 SC 2562 : 2001-II-LLJ-788. In the submission of the learned counsel for the employee, the Labour Court could have at the most rejected the claim, for back wages for the period for which lodging of the statement of claim was delayed i.e. from the date of termination till the year 1993. But, in his submission, the Labour Court is not justified in refusing the entire back wages i.e. from the date of termination till passing judgment and Award.

4. The first point that I am dealing with, is about maintainability of the Reference because of delay of about 6 years in filing the statement of claim by the employee. In Sapan Kumar Pandit's case (supra) the Apex Court in paragraph 9 has held thus at p. 791 of 2001-II-LLJ-788:

"...... That apart, a decision of the Government in this regard cannot be tested on the possibility of what another party would think whether any dispute existed or not. The section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference there is a presumption that in the opinion of the Government there existed such a dispute."

Reading of the said judgment makes it evident that once the Government is of the opinion that there existed an industrial dispute or apprehends that such a dispute is likely to exist, then the Government is competent to make a reference and when such reference is made it has to be presumed that the dispute did exist. No doubt, in Nedungadi Bank Ltd. 's case (supra), the Apex Court had held that just because no time limit is provided to make a reference it does not mean that the power can be exercised at any point of time by making reference of a stale dispute. Perusal of the said judgment reveals that the case was decided mainly on the facts of that case when the bank had called in question the propriety of making of the reference. The Court has observed in the said judgment that an order of reference made by the Government is subject to judicial review. In the peculiar fact of the said case the Apex Court has held that the, dispute, which was referred by the Government, was stale, non existent and devoid of any merit.

5. In Ajaib Singh's case (supra) the Apex Court has categorically held that no reference to the Labour Court can be generally questioned on the ground of delay alone. It is held in the said judgment that even in a case where the delay is shown to be existing, the Labour Court dealing with the case can appropriately mould the relief by deducting the back wages to the workman till the date he raised the demand regarding his illegal termination or dismissal. The law laid down in Sapan Kumar Pandit's case and in Ajaib Singh's case by the Apex Court makes it clear that no reference can be rejected solely on the ground of delay. In the instant case, though there was a delay of about 6 years on the part of the employee in raising the demand, the reference cannot be rejected on the said ground alone. This brings me to the claim made for back wages by the employee. The Labour Court has denied all the back wages to the employee solely because there was delay of about 6 years in making the demand. The learned counsel for the employee submits that his services were illegally terminated in the year 1987 and that he made the demand in the year 1993 and for that period the Labour Court could be said to be justified in denying the back wages. He further submits that the employee is entitled to full back wages from the year 1993 till the date of judgment and award passed by the Labour Court: The Labour Court has dealt with the question of back wages in a very cryptic manner. Placing reliance on the reported judgment in Ajaib Singh's case the Labour Court has held that the employee is not at all entitled to back wages. I am afraid that, that is not the view expressed by the Apex Court in Ajaib Singh's case. The Apex Court in para 10 of the judgment observed in 1999-I-LLJ-1260 at p. 1264:

"No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where delay is shown to be existing, the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant back wages till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages."

The Apex Court has thus, categorically held that the employee will not be entitled to wages for the period commencing from termination of his services till lodging of the claim and it does not say that the employee shall not be entitled to back wages even for the period subsequent thereto till adjudication of the reference by the Labour Court. No doubt, the relief in regard to payment of back wages can be appropriately moulded by the Court having regard to the totality of facts and circumstances. Hence, in the present case I am of the view that the employee will not be entitled to claim the back wages from the date of his termination till the employee filed the statement of claim. The employee is entitled to have his claim for back wages considered from the year 1993 viz., from the date of filing of the statement of claim till the date of the judgment and award passed by the Labour Court. In my considered opinion, the ends of justice would be met by awarding 50% of the back wages to the employee from the date of filing of the statement of claim till the date of judgment and award passed by the Labour Court, viz. December 27, 1999. Hence, I pass the following order:

Writ Petition No. 717 of 2001 is dismissed. Rule is discharged with no order as to costs.

Writ Petition No. 4759 of 2001 is partly allowed. That part of the judgment and Award of the Labour Court by which the entire claim of the employee for back wages came to be rejected is quashed and set aside and I direct that the respondent-employer shall pay fifty per cent of the back wages to the petitioner employee from the date of filing of the statement of claim till the date of judgment and award passed by the Labour Court viz. December 27, 1999. Rule is made absolute accordingly, with no order as to costs.