The Ex.Engineer,Pwdamravati & ... vs Anna Pundlikrao Wankhade
2017 Latest Caselaw 3130 Bom

wp.4813.08.jud                           1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR


                     WRIT PETITION NO.4813 OF 2008


01]    The Executive Engineer,
       Public Works Department,
       Amravati.

02]    The Sub-Divisional Engineer,
       Public Works Department,
       (Special Project Division),
       Tiwasa, Tq. Tiwasa, District Amravati.                     .... Petitioners

       -- Versus -

Anna Pundlikrao Wankhede,
Aged about 40 years,
R/o Riddhaur, Tq. Morshi,
District Amravati.                                              .... Respondent

Mrs. A.R. Taiwade, Assistant Government Pleader for the Petitioners.
None for the Respondent.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : JUNE 14, 2017.


ORAL JUDGMENT :-

This writ petition is preferred by employer challenging

the award passed by Labour Court, Amravati on 28/12/2007 in

Reference (IDA) No.254/1995. Labour Court has answered

reference in the affirmative holding that respondent-employee

has continuously worked for 240 days prior to the date of his

termination i.e. 30/04/1987 and there was non-compliance of

provisions of Section 25F of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for short). As a result,

termination dated 30/04/1987 has been set aside and direction

has been given to employer to reinstate the workman with

continuity of service and 40% back wages.

02] The facts relevant for the decision of present petition

may be stated in brief as under :

i. Respondent was appointed as helper in Rest House,

Mozari since 19/05/1985. His services came to be

terminated on 30/04/1987. He raised the dispute.

Additional Commissioner referred the dispute for

adjudication to Labour Court, Amravati. In the

statement filed before Labour Court, claim of

respondent was that he had continuously worked for

more than 240 days preceding the date of termination

on 30/04/1987 and without complying with the

mandatory provisions of Section 25F and 25G of the

Act read with Rule 81 of the Industrial Disputes

(Bombay) Rules, 1957 (hereinafter referred to as 'the

Rules' for short), his services were terminated.

Employee claimed reinstatement with continuity in

service and back wages.

ii. Petitioners-employer filed written statement denying

claim of employee on several grounds. According to

employer, dispute raised was stale in nature as the

alleged termination was on 30/04/1987 and reference

was sought in the year 1995 i.e. after a lapse of eight

years. It was submitted that records of casual

labourers beyond five years were not retained by the

employer. Further submission was that relationship of

master and servant or employer and employee was

not established and employee could not prove that he

had completed 240 days of continuous service before

the date of his termination.

iii. Before the Labour Court, employee entered the

witness box and supported his case. Petitioners-

employer examined one witness to substantiate the

defence. Relying upon the notice [Exh.C9], Labour

Court held that employee has proved that he has

completed more than 240 days of continuous service

in each year. The finding was recorded on the basis of

oral evidence of employee and on failure of

petitioners-employer to produce relevant documents

on record. It was held that there was no compliance

of provisions of Sections 25F and 25G of the Act. On

the question of delay in seeking reference, reliance

was placed by Labour Court on the judgments in

Mahavir Singh vs. U.P. State Electricity Board

and others - [1999(82) FLR 169] and Ajaib Singh

vs. Sirhind Coop. Marketing-Cum-Processing

Service Society Ltd. & another - [1999 FLR 529]

to hold that reference cannot be rejected on the

ground of delay particularly when on merits employee

succeeds. On the basis of these findings, reference

came to be answered in the affirmative.

03] Mrs. A.R. Taiwade, learned Assistant Government

Pleader for petitioners-employer urged that Labour Court ought

to have answered the reference in the negative on the sole

ground that it was a stale dispute raised after a period of eight

years. In support of her submission that stale reference should

not be entertained and it should be dismissed at the outset

without going into merits of the matter, reliance is placed on the

judgment of the Hon'ble Supreme Court in Prabhakar vs. Joint

Director , Sericulture Department & anr. - [2016(1) ALL

MR (S.C.)] and the decision of this Court in Executive

Engineer, Public Works Department, Wardha vs. Namdeo

Govindrao Nandurkar - [2011(4) Mh.L.J.33].

04] Learned A.G.P. submitted that even in accordance

with the Rules, employer was not expected to retain record and

the witness examined by employer has deposed that the record

prior to five years was not retained and was not available. The

submission is that heavy burden was on the employee to

establish that he has continuously worked for more than 240

days preceding the date of termination and mere statement on

oath by the employee was not enough. It is submitted that

finding recorded by Labour Court only on the basis of notice that

employee had completed 240 days of continuous service in the

employment is perverse and also suffers from an error apparent

on the record. She invited attention of this Court to the notice

[Exh.C9] and submitted that no where notice discloses that

employee has completed 240 days of continuous service as

alleged.

05] Undisputedly, there is delay of eight years in making

reference by the respondent-employee. It is, therefore,

necessary to see the position of law in respect of a stale claim.

This Court in Executive Engineer, Public Works Department,

Wardha vs. Namdeo Govindrao Nandurkar (supra)

elaborately discussed the various decisions of the Hon'ble

Supreme Court in paragraphs 8 to 18 and culled out certain

principles in paragraph 19 of the judgment, which read thus :

8. In the decision of the Apex Court in the case of Guest, Keen, Williams Pr. Ltd., Calcutta vs. P.J. Sterling and others, reported in AIR 1959 SC 1279, the question was of delay in raising dispute with reference to the standing order and its effect on the validity of reference under Section 10 of the Industrial Disputes Act. The Apex Court in para 14 of its judgment has dealt with this aspect and the relevant portion is as

under :

"... If a dispute is raised after a considerable delay which is not reasonably explained the tribunal would undoubtedly take that fact into account in dealing with the merits of the dispute. But unless the relevant facts clearly justify such a course it would be inexpedient to throw out the reference on preliminary technical objections of the kind raised by the appellant under the present contention...."

9. In the decision of the Apex Court in the case of Ratan Chandra v. Union of India, reported in 1993 Supp.(4) SCC 67, it was held that the casual worker retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. It was further held that the delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. In this case, the delay of 7 to 9 years was held not fatal.

10. Then comes the decision of the Apex Court in the case of Ajaib Singh vs. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and another, reported in (1999) 6 SCC 82. In this case, the services of the workman were terminated on 16/07/1974. He had issued the notice of demand on

18/12/1981 and the reference was made to the Labour Court on 19/03/1982. Thus, there was a delay of about 7 years in seeking reference. The Apex Court has held that Article 137 of the Limitation Act is not applicable to the proceedings of reference and the relief under the Industrial Disputes Act cannot be denied to the workman merely on the ground of delay. The Apex Court has referred to its two earlier judgments in the cases of Jai Bhagwan vs. Ambala Central Co-op. Bank Ltd., reported in (1983) 4 SCC 611, and H.M.T. Ltd. vs. Labour Court, reported in (1994) 2 SCC 38. In para 10 of the said judgment, the Apex Court has held as under :

"It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the 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 to the workman 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. ...".

On facts, it was held that the plea of delay was not raised before the Labour Court and if that plea had been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the Government. It was further held that the workman was justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on the technicalities of law.

11. In the decision of the Apex Court in Mahavir Singh vs. U.P. State Electricity Board and others, reported in (1999) 9 SCC 178, the Labour Court had held that on merits the termination could not be sustained. The High Court had agreed with the said finding of the Labour Court, but it was held that the reference was incompetent. The Apex Court has set aside the view of the High Court holding that once the

termination was held to be illegal, the entire reference could not have been rejected. It was held that the dispute lingered on for a number of years, and that would not mean that the dispute had ceased to exist. This judgment does not refer to any of the earlier judgments and this is an independent view.

12. The next case of the Apex Court is in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others, reported in (2000) 2 SCC 455. In this case, the employee was dismissed from service on 11-8- 1972. He filed an application for reference on 24-5- 1979. Ultimately, the Central Government made a reference of the dispute. The Bank filed a writ petition, which was allowed on 24-1-1995 setting aside the order of reference. The employee filed an appeal challenging the order of the learned Single Judge. The Division Bench allowed the appeal and upheld the validity of reference. The Apex Court has set aside the judgment of the Division Bench and restored the judgment of the learned Single Judge. As a result, the order of reference stood set aside on the ground of delay. In para 8 of the said judgment, the Apex Court has observed as under :

"It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same

and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court. In National Engg. Industries Ltd. vs. State of Rajasthan this Court observed : (SCC p.393, para

24)"

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended

the appropriate Government lacks power to make any reference."

It was urged before the Apex Court that once a reference has been made under Section 10 of the Act, a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. The Apex Court has rejected the said argument stating that this is not a correct proposition to state, and an administrative order which does not take into consideration statutory requirements or travels outside, the same can be subject-matter of judicial review by the High Court under Article 226 of the Constitution of India. This judgment also does not take into consideration the judgment delivered by the Apex Court in Ajaib Singh's case [(1999) 6 SCC 82] or in Mahavir Singh's case [(1999) 9 SCC 178].

` 13. The next decision of the Apex Court is in the case of Sapan Kumar Pandit v. U.P. State Electricity Board, reported in (2001) 6 SCC 222. There was a delay of about 15 years in making a reference. The High Court quashed the order of reference on the sole ground of delay. The employee, therefore, approached the Apex Court. The Apex Court has held that the long delay for making the adjudication could be considered by the adjudicating authorities while

moulding its reliefs, and the High Court had gone wrong in axing down the order of reference made by the Government for adjudication. It was held that let the adjudicatory process reach its legal culmination. This judgment takes into consideration the Apex Court's earlier judgments in the cases of M/s. Shalimar Works Limited (AIR 1959 SC 1217) and Nedungadi Bank Ltd. [(2002) 2 SCC 455]. Paras 7 and 12 of the said judgment are relevant and the same are, therefore, reproduced below :

"7. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which lapsed since the inception of the dispute. That apart, a decision of the government in this regard cannot be listed 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."

"12. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wan into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section 4K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."

It is thus apparent that the matter was left to be decided by the adjudicating authorities.

14. Then comes the decision of the Apex Court in the case of Assistant Executive Engineer, Karnataka vs. Shivalinga, reported in (2002) 10 SCC 167. In this case, the services of the employee were terminated on 25/05/1985 and he approached the Labour Officer on 17/03/1995 and thereafter reference was made by the Government to the Labour Court. There was a delay of more than 9 years in approaching the Labour Officer. In para 6 of the said judgment, the Apex Court has considered both the earlier judgments in the cases of Ajaib Singh [(1999) 6 SCC 82] and Sapan Kumar Pandit [(2001) 6 SCC 222]. Para 6 of the said judgment, being relevant, is reproduced below :

"Learned counsel for the appellant strongly relied on the reasoning of the Labour Court and contended that the view of the High Court would not advance the cause of justice. Learned counsel for the respondent relied upon two decisions of this Court in Ajaib Singh vs. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. and Sapan Kumar Pandit v. U.P. SEB to contend that there is no period of limitation prescribed under the Industrial Court even belatedly and the Labour Court or the Industrial

Tribunal can properly mould the relief by refusing or awarding part-payment of back wages. It is no doubt true that in appropriate cases, as held by this Court in the aforesaid two decisions, such steps could be taken by the Labour Court or the Industrial Tribunal, as the case may be, where there is no such dispute as to relationship between the parties as employer and employee. In cases where there is a serious dispute, or doubt in such relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same. In such circumstances to make them available to a Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A situation of that nature would render the claim to have become stale. That is exactly the situation arising in this case. In that view of the matter, we think the two decisions relied upon by the learned counsel have no application to the case on hand. Proceeding on the facts of the case we think the High Court is wrong in having interfered with the award made by the Tribunal. The order made by the High Court in the writ proceedings, therefore, shall stand set aside and the award made by the Labour Court shall stand restored. The appeal is allowed accordingly."

Thus, it has been held that in cases there is a serious dispute, or doubt in such relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same. It was held that in such a situation, the decisions in the cases of Ajaib Singh and Sapan Kumar Pandit would not be applicable. The order of the Labour Court rejecting the reference as barred by time was restored and the judgment of the High Court granting reinstatement and continuity in service without back wages, was set aside.

15. Then comes the decision of the Apex Court in the case of S.M. Nilajkar and others vs. Telecom District Manager, Karnataka, reported in 200(3) Mh.l.J. (SC) 9 = (2003) 4 SCC 27. In this case, there was a delay of nearly 7 to 9 years in raising the disputes. In this case, the workmen had not placed any material on record to hold that there was no delay and the disputes were promptly raised. It was because of this delay that the employer was not in a position to produce the record relating to the days for which the workmen had worked inasmuch as according to the standing instruction of the Department, the registers of muster rolls were preserved for a period of 5 years only, whereafter they were eliminated. The Tribunal recorded the finding on the basis of the oral evidence

that the workmen completed more than 240 days of service. The learned Single Judge of the High Court held that the workmen were not entitled to any back wages. Thus, the workmen were granted reinstatement with the benefit of continuity of service, but without back wages. The employer preferred an appeal. The Division Bench allowed the appeal of the employer and set aside the judgment of the learned Single Judge and that of the Tribunal holding that there was undue delay of 7 to 9 years in raising an industrial dispute and hence set aside the award of the Tribunal and the judgment of the learned Single Judge. The Apex Court in appeal, has set aside the decision of the Division Bench and restored the decision of the learned Single Judge, maintaining the order of reinstatement and continuity of service, but without back wages. In this judgment, the Apex Court has considered its earlier judgments in the cases of M/s. Shalimar Works Limited (AIR 1959 SC 1217) and Nedungadi Bank Ltd. [(2002) 2 SCC 455]. Para 17 of the judgment, being relevant, is reproduced below :

"It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen that merely because the

Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re- employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. vs. Workmen. In Nedungadi Bank Ltd. vs. K.P. Madhavankutty a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta vs. Union of India it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief.

Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16/01/1990 they were refused to be accommodated in the Scheme. On 28/12/1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-

Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay."

It was held that though there was a delay, the same was not fatal one in initiating the proceedings and the employee cannot be blamed for the delay.

16. The next decision of the Apex Court in the case of Haryana State Coop. Land Development Bank vs. Neelam, reported in (2005) 5 SCC 91. In this case, the employee was discontinued from service with

effect from 30/05/1986. On 30/09/1993, a demand notice was issued for a reference. The Labour Court passed an order on 24/02/1998 answering the reference against the employee, holding that the claim was belated. A writ petition filed before the High Court was allowed and the employee was directed to be reinstated with continuity of service, but without back wages, relying upon the decision of the Apex Court in the case of Ajaib Singh [(1999) 6 SCC 82]. The Apex Court has set aside the judgment of the High Court and restored the judgment of the Labour Court. As a result, the reference stood answered in the negative. The Apex Court has considered its earlier judgments in the cases of Ajaib Singh [(1999) 6 SCC 82] and Sapan Kumar Pandit [(2001) 6 SCC 222]. Similarly, the Apex Court has also considered the judgment in Balbir Singh v. Punjab Roadways, reported in (2001) 1 SCC 133. The judgments in the cases of Nedungadi Bank Ltd. [(2001) 6 SCC 222] and Shivalinga [(2005) 2 SCC 42] have also been considered. Paras 13 to 17 of the said judgment being relevant, are reproduced below :

"13. In Ajaib Singh the management did not raise any plea of delay. The Court observed that had such plea been raised, the workman would have been in a position to show the circumstances which prevented him from

approaching the court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the Government. In that case, the Labour Court granted the relief, but the same was denied to the workman only by the High Court. The Court referred to the purport and object of enacting the Industrial Disputes Act only with a view to find out as to whether the provisions of Article 137 of the Schedule appended to the Limitation Act, 1963 are applicable or not. Although, the court cannot import a period of limitation when the statute does not prescribe the same, as was observed in Ajaib Singh but it does not mean that irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate Government while making a reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the Labour Court."

"14. The decision of Ajaib Singh must be held to have been rendered in the fact situation obtaining therein and no ratio of universal application can be culled out therefrom. A decision, as is well known, is an authority of what it decides and not what can logically be deduced therefrom (Bharat Forge Co. Ltd. v.

Uttam Manohar Nakate and Kalyan Chandra Sarkar v. Rajesh Ranjan, SCC p.58, para 42 : Scale para 42)."

"15. In Balbir Singh v. Punjab Roadways as regards Ajaib Singh this Court observed: (SCC pp.134-35, paras 5-6)

"5. The learned counsel for the petitioner strenuously urged that the Tribunal committed error in denying relief to the workman merely on the ground of delay. The learned counsel submitted that in industrial dispute delay should not be taken as a ground for denying relief to the workman if the order/ orders under challenge are found to be unsustainable in law. He place reliance on the decision of this Court in the case of Ajaib Singh vs. Sirhind Coop. Marketing-cum-Processing Service Society Ltd.

6. We have carefully considered the contentions raised by the learned counsel for the petitioner. We have also perused the aforementioned decision. We do not find that any general principle as contended by the learned counsel for the petitioner has been laid down in that decision. The decision was rendered on the facts and circumstances of the

case, particularly the fact that the plea of delay was not taken by the management in the proceeding before the Tribunal. In the case on hand the plea of delay was raised and was accepted by the Tribunal. Therefore, the decision cited is of little help in the present case. Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially."

"16. Yet again in Asstt. Executive Engineer vs. Shivalinga a Bench of this Court observed: (SCC pp. 168-69, para 6)

"6. Learned counsel for the appellant strongly relied on the reasoning of the Labour Court and contended that the view of the High Court would not advance the cause of justice. Learned counsel for the respondent relied upon two decisions of this Court in Ajaib Singh vs. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. and Sapan Kumar Pandit vs. U.P. SEB to contend that there is no period of limitation prescribed under the Industrial Disputes Act to raise the dispute and it is open to a party to

approach the court even belatedly and the Labour Court or the Industrial Tribunal can properly mould the relief by refusing or awarding part-payment of back wages. It is no doubt true that in appropriate cases, as held by this Court in the aforesaid two decisions, such steps could be taken by the Labour Court or the Industrial Tribunal, as the case may be, where there is no such dispute as to relationship between the parties as employer and employee. In cases where there is a serious dispute, or doubt in such relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same. In such circumstances to make them available to a Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A situation of that nature would render the claim to have become stale. That is exactly the situation arising in this case. In that view of the matter, we think the two decisions relied upon by the learned counsel have no application to the case on hand."

"17. In Nedungadi Bank Ltd. a Bench of this Court, where S. Saghir Ahmad was a member (His Lordship was also a member in Ajaib Singh) opined: (SCC pp. 459-60, para 6)

"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made."

17. Subsequent to above judgments, the Apex Court has considered the issue in question in its

following judgments :

(1) (2006) 2 SCC 329 - Sudamdih Colliery of Bharat Coking Coal Ltd. vs. Workmen (2) (2006) 5 SCC 433 - U.P. State Road Transport Corpn. v. Babu Ram. (3) (2006) 5 SCC 481 - Asstt. Engineer, CAD, Kota v. Dhan Kunwar. (4) (2007) 9 SCC 109 - Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. (5) (2008) 2 SCC 366 - Haryana Land Reclamation and Development Corporation Ltd. v. Nirmal Kumar. (6) (2008) 14 SCC 589 - Steel Authority of India Limited and another v. State of West Bengal and others. (7) (2008) 17 SCC 627 - U.P. State Road Transport Corporation v. Ram Singh and another. (8) (2009) 13 SCC 746 - State of Karnataka and another v. Ravi Kumar.

In the first case of Sudamdih Colliery of Bharat Coking Coal Ltd., the matter was sent to the High Court to examine the question of delay in seeking reference in the light of the decisions of the Apex Court in the cases of Nedungadi Bank Ltd. and S.M. Nilajkar.

In the second case of Babu Ram, the termination was dated 19/09/1983 and the reference was made on 29/08/1998. The Labour Court held the termination

as invalid without considering the question of delay. The High Court dismissed the writ petition. The Apex Court has held that no material was placed on record to show that the dispute was raised within reasonable time and the employee was not responsible for delay. It was held that there is a need for raising industrial dispute within a reasonable time. The onus of showing that industrial dispute was raised within a reasonable time, is upon the workman and he has to show that he was not responsible for delay. The delay cannot be condoned on surmises and conjectures. The judgments of the Apex Court in the cases of Nedungadi Bank Ltd. and S.M. Nilajkar were referred and the matter was remanded back to the High Court for considering the question of delay.

In the third case of Dhan Kunwar, the delay was of about 8 years in raising the dispute. The Labour Court granted reinstatement with 30% back wages. The writ petition and the writ appeal were dismissed. The Supreme Court relying upon the judgments in the cases of Nedungadi Bank Ltd. and S.M. Nilajkar, set aside the judgment of the High Court and the Labour Court and held that no relief should have been granted.

In the fourth case of Dharappa, the claim was made after a lapse of 10 years and it was held to be

dead and unenforceable relying upon the judgments of the Apex Court in three cases, viz. (1) Nedungadi Bank Ltd., (2) Shivalinga, and (3) S.M. Nilajkar.

In the fifth case of Nirmal Kumar, the termination was dated 18/07/1991 and the reference was made on 20-2-1997. The Labour Court granted reinstatement, continuity of service and 50% back wages to the employee. The writ petition and the writ appeal were dismissed. The SLP before the Supreme Court was only against the award of 50% back wages. After referring to the decisions of the Apex Court in the cases of Ajaib Singh and Nedungadi Bank Ltd., the order of back wages was modified and an amount of Rs.10,000/- was only directed to be paid.

In the sixth case of Steel Authority of India Ltd., the order of regularization of employee passed on the reference made to the State Government in the year 2003 was quashed relying upon the decision of the Apex Court in the case of Babu Ram.

In the seventh case of Ram Singh, the termination was dated 15-3-1973 and the reference was on 15-6-1986. There was a delay of about 13 years in making the reference. Relying upon the judgments of the Apex Court in the cases of Prakash Chandra Sahu vs. State Transport Authority, reported

in (1997) 9 SCC 32, and Nedungadi Bank Ltd., cited supra, the reference was dismissed on the ground of delay. Para 7 of the said judgment being relevant, is reproduced below :

"We are of the view that in the facts and circumstances of the case, the High Court erred in not setting aside the award of the Labour Court. Apart from the unacceptable manner in which the appellant was denied the opportunity of participating in the proceedings, including being debarred from cross-examining the respondent, the Labour Court should not have entertained the industrial dispute given the enormous delay. This Court has in several decisions held that while delay cannot by itself be sufficient reason to reject an industrial dispute, nevertheless the delay cannot be unreasonable. The decision in Prakash Chandra Sahu has reaffirmed this principle. The reason for diligence and promptness lies in the fact that the records pertaining to an employee might have been destroyed and it would be difficult to obtain witnesses who would be competent to give evidence so many years later if the Labour Court wishes to hold a further enquiry into the matter. In the present case the delay of 13 years is unreasonable. The mere fact that the

respondent was making repeated representations would not justify his raising the issue before the Labour Court after 13 years. In any event the last representation was made in 1983 and the industrial dispute was admittedly raised in 1986. The lack of diligence on the part of the respondent is apparent."

In the last case of Ravi Kumar, the employee was discontinued on 14-11-1984. After 14 years, the writ petition was filed, which was dismissed, with the observation that the representation be made to the State Government for making the reference. The reference was made by the State Government. It was rejected by the Labour Court on 30-7-2001. In the writ petition, the order of the Labour Court was set aside and the employee was directed to be reinstated in service without back wages. Relying upon the decisions of the Apex Court in the cases of Nedungadi Bank Ltd. and Shivlinga, the Apex Court has set aside the order of the High Court and dismissed the reference on the ground of delay or that the claim was stale. It was held that the person supervising could not be expected to prove after 14 years that the employee did not work or that he did not work for 240 days in a year or that he voluntarily left the work.

18. Thus, the two judgments of the Apex Court -

one in Ajaib Singh's case and another in Sapan Kumar's case - were held to be decided in the facts of those cases. In the decision of the Apex Court in Shivlinga's case, it has been held that in cases where there is a serious dispute or doubt in such relationship and the records of the employer become relevant, the long delay would come in the way of maintenance of the same. In such situation, the judgments in Ajaib Singh's case and Sapan Kumar's case were held to be not applicable. In the decision of the Apex Court in Neelam's case, it has been held that the decision in Ajaib Singh's case must be held to have been rendered in the fact situation obtained therein and no ratio of universal formula can be culled out therefrom. Though Mahavirsingh's case has not been referred to in all these judgments, the same is also decided in the facts of that case. Almost in all the subsequent cases, the decisions of the Apex Court in the cases of Nedungadi Bank Ltd., Shivlinga and S.M. Nilajkar have been followed and in none of these judgments, the decisions in the cases of Ajaib Singh, Sapan Kumar and Mahavir Singh are referred to.

19. In view of the aforesaid law laid down by the Apex Court, it has to be held that though the Court cannot import the period of limitation and the reference cannot be dismissed merely on the ground of delay, it does not mean that irrespective of the

facts and circumstances of the case, a stale claim must be entertained and the relief should be granted. In case of delay, no formula of universal application can be laid down and it would depend upon the facts and circumstances of each case. The Court dealing with the reference will have to hold an enquiry and record its finding on the question whether the reference should be dismissed on the ground of delay. In appropriate cases, the Court may mould the relief either by reducing the back wages or by denying it completely. While considering the question of delay, the Court will wp2711.06.odt have to be guided by certain principles, which are culled out from various judgments of the Apex Court, discussed above, are stated as under :

(a) A plea of delay must be specifically raised so that an employee gets an opportunity to lead evidence and explain it.

(b) There is a need to raise an industrial dispute within a reasonable period and the onus of showing that the dispute was raised within a reasonable time is upon the employee.

(c)It is for the employee to explain, the delay by furnishing acceptable explanation to the satisfaction of the Court or that he was not

responsible for the delay caused.

(d) The fact that the workman was making repeated representations, is not sufficient to explain the delay.

(e) Delayed reference causes prejudice to both the employer and the employee. Lapse of time results in losing the remedy and the right as well.

(f) Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded by denying full or partial back wages, is a matter of discretion, which should be judicially exercised depending upon the facts and circumstances of the case and no fixed formula can be laid down.

(g) The delay would certainly be fatal if it has resulted in material evidence relevant to the adjudication being lost and rendered unavailable.

(h) The person supervising cannot be expected to prove after long delay that the employee/workman did not work for 240 days in a year or that he voluntarily left the work. It would be difficult to obtain witnesses, who would

be competent to give evidence so many years later if the Labour Court wishes to hold an enquiry into the matter.

(i) An administrative order making reference of industrial dispute, which does not take into consideration the statutory requirements or travels outside, can be a subject-matter of judicial review by the High Court under Article 226 of the Constitution of India. This does not mean that the adjudicating authority/Labour Court cannot make an enquiry to find out whether the reference should be dismissed on the ground of delay or that the relief is required to be moulded keeping in view the facts and circumstances of the case.

06] Keeping in view the principles laid down, the facts of

the present case are required to be considered. A plea of delay

was raised by an employer in the written statement to the

statement of claim. The Labour Court has not framed issue on

delay though specific plea was raised. It appears from the

findings that cryptic reason is assigned that employee succeeds

on merits and, therefore, objections on delay would not survive.

The decision of the Apex Court in Mahavir Singh's case (supra),

was rendered in the facts and circumstances of that case. The

evidence of completion of 240 days was available in that case

and the same was accepted by the Courts below. In view of this,

it was not a case where the employer was required to produce

evidence and that the employer failed to produce the same

despite its availability. The ratio laid down in case of Mahavir

Singh is not applicable to the facts of the present case as in the

case on hand, burden of proof was on the employee to show that

dispute was raised within a reasonable time. No satisfactory

explanation has been given by the employee for seeking

reference after lapse of eight years. No evidence is placed on

record to shift the onus upon the employer. In view of the facts

emerging from the evidence of the employee, this Court finds

substance in the submission of learned A.G.P. that there was no

existing dispute as such when reference was made.

07] The employer has raised a specific plea that after five

years, records are not retained and were not available. This fact

has not been denied specifically by the employee. When initial

burden was on employee, there was no question of drawing an

adverse inference against the employer for non-production of

record.

08] As pointed out earlier, the Hon'ble Apex Court has

held that delay would certainly be fatal if it has resulted in

material evidence relevant to the adjudication being lost and

rendered unavailable. It is difficult for the employer to obtain

witnesses after eight years, who would be competent to give

evidence to show that employee did not work continuously for

240 days. The lapse of time results in losing the remedy and the

right as well and delay in seeking reference causes prejudice to

both the employer and the employee. Keeping in view this

principle, it was for the respondent to lead positive evidence and

prove that he had completed 240 days of continuous service. In

such a situation, question of non-compliance of provisions of

Sections 25F and 25G of the Act would not arise.

09] In the above premise, writ petition succeeds. Hence,

the following order :

ORDER

I. The award passed by Labour Court on 28/12/2007 in

Refence (IDA) No.254/1995 is hereby quashed and set

aside.

II. The reference stands answered in the negative.

III. Rule is made absolute accordingly with no order as to

costs.

*sdw                                      (KUM. INDIRA JAIN, J.)