Jharkhand High Court
Molina Biswas vs General Manager on 13 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No.1182 of 2013
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Molina Biswas ... ... ... Petitioner
-Versus-
1. General Manager, Medical Services, TATA Steel Medical Division, Jamshedpur;
2. General Manager (Finance0, TATA Iron and Steel Company Limited,
Jamshedpur.
... ... ...Respondents
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CORAM :THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
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For the Petitioner : Mr. Ashok Kumar Yadav, Advocate.
Mr. Amit Mishra, Advocate
For the Respondent : Mr. Abhay Kumar Mishra, Advocate
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06/13.01.2021 In view of outbreak of COVID-19 pandemic, case has been taken up
through Video Conferencing. Concerned lawyers have no objection with regard
to the proceeding, which has been held through Video Conferencing today at
10:30 a.m. onward. They have no complaint in respect to the audio and video
clarity and quality.
2. The petitioner has approached this Court for quashing of the order dated
07.09.2011, passed in M.J. Case No. 8 of 2005, passed by Presiding Officer,
Labour Court, Jamshedpur whereby and whereunder petition filed by the
petitioner under Section 33(C)(2) of the Industrial Disputes Act, 1947, claiming
therein the annual increments, which is due with effect from 09.02.2000 till
09.02.2005 and for payment of increment payable during suspension period and
also for payment of wages for discharge period amounting to Rs.90,830/-, with a
further prayer for payment of cash amount towards P.L., Full Leave amounting
to Rs.59,885/- and for payment of bonus of Rs.18,116/- along with penal interest
@12% per annum for the discharged period, has been rejected.
Petitioner has further prayed for a direction upon the respondents to make
payment of grade time bound promotion and to revise grade revision pay scale
with effect from 1999 for which he is entitled.
3. The facts of the case in short is that petitioner was appointed in the year
1980 as a temporary employee and was subsequently in the year 1990, she was
absorbed to the post of Office Peon - Cum - Messenger on permanent basis in
TATA Main Hospital, Medical Division of TATA Iron and Steel Company
Limited, Jamshedpur. After her absorption on permanent basis, petitioner was
repeatedly asked to take ESS and on refusal to do so, a complaint was lodged for
unauthorized absence from the duties and on the basis of said allegation, she was
discharged from the services on 31.08.1999 without complying with the
provisions of the disciplinary action laid down under the domestic inquiry, Rules
and Acts. Petitioner was also served Charge-sheet no. HS/ 104/ 99, dated
01.06.1999 for absenting herself from duties without permission from
08.05.1999 to 15.05.1999 and again without information and permission from
16.05.1999 to 04.06.1999. On the basis of Charge-sheet against the petitioner, an
inquiry was held on several dates and on the basis of proceedings and findings of
the Inquiry Committee, the charges leveled against the petitioner for
unauthorized absence was found to be correct and on the basis of said allegation,
she was served letter dated 09.08.1999 and was discharged from the service of
the Company. Petitioner was however given a chance to represent Management
without three days from the date of issuance of said letter. Against the said letter
discharging petitioner from the service, petitioner filed a representation before
the General Manager, Medical Services, TISCO, Jamshedpur taking pleas of
medical issues and domestic troubles. However, representation filed by the
petitioner was not found to be satisfactory and consequence thereto, petitioner
was discharged from the services of the Company with immediate effect.
4. Being aggrieved, petitioner approached TATA Workers Union and raised
her grievance against the wrongful action of Management. Upon the queries
sought for by the TATA Workers Union, the Special Central Workers'
Committee considered case of the petitioner and it was agreed by the
Management to take her back into service by reducing punishment. Thereafter,
the decision of the said Committee was communicated to the petitioner
informing her that she had been taken back into service by reducing the
punishment.
5. On account of non-payment of increment and salary for the discharged
period, petitioner filed representation dated 28.01.2004 before the General
Manager (Finance), TATA Iron and Steel Company Limited wherein she had
submitted that annual increment which falls in the month of February and also
salary and other dues, which were admissible to the employees, had not been
paid to her. Further, the Personal Leave had also not been mentioned in the
Payment Slip and there were certain discrepancies with respect to leave in the
Payment Slip. Due to non-payment of salary for the discharged period from
30.08.1999 till 08.07.2000 and for non-payment of increment, petitioner is
suffering from financial difficulties.
6. When in spite of repeated requests and reminders when grievance of the
petitioner with respect to payment of salary for the discharged period and other
dues for the discharged period was not paid, she approached before the Deputy
Labour Commissioner, Jamshedpur wherein an inquiry was set up by the Deputy
Labour Commissioner. In the said inquiry, the respondents did not appear. The
General Manager, TATA Main Hospital submitted his explanation before the
Labour Superintendent, Jamshedpur alleging therein that the representation filed
by the petitioner does not constitute an Industrial Dispute warranting conciliation
under the provisions of appropriate law.
7. When grievances of the petitioner was not redressed, she filed M.J. Case
No. 8 of 2005 under Section 33(C)(2) of the Industrial Disputes Act before the
presiding Officer, Labour Court, Jamshedpur with a prayer for a direction upon
the respondent to pay Annual increment with effect from 09.02.2000 till
09.02.2005 and for payment of wages for the discharged period from 31.08.1999
to 07.07.2000 i.e. 10 months and 08 days amounting to Rs.90,830 and for other
reliefs. Upon issuance of notices, the respondents filed their show-cause denying
the allegations leveled by the petitioner. It is case of the petitioner that without
considering facts and circumstances of the case, the application filed by the
petitioner was dismissed on the ground of limitation stating therein that for
raising claim under Section 33(C)(2) of the Industrial Disputes Act, the
employee has to raise her claim within three months but since petitioner has not
explained delay of four years nor has filed any petition to condone such delay,
her claim is time barred. Being aggrieved, petitioner has knocked door of this
Court.
8. Assailing the impugned order, Mr. Ashok Kumar Yadav, learned Counsel
appearing for the petitioner vociferously argues that the petitioner has been
raising her claim before the Management from time to time and since
management has been assuring petitioner to consider her grievance, the
petitioner could not approach appropriate court for redressal of her grievance
within time and admittedly, there has been delay in raising grievance but the
rightful claim of the petitioner cannot be denied. Respondents have wrongly and
illegally denied claim of the petitioner and substantial right of the petitioner has
been infringed upon. Petitioner could not have been denied annual increment
which fell due on 09.02.2000 till 09.02.2005. The respondents have further
committed grave error of law by denying payment of wages for the discharged
period which is due at Rs.90,830/-. Learned counsel further submits that
respondents have acted in a most mechanical way by not considering grievances
of the petitioner with respect to Grade Revision since 1999 as admissible to the
employees which has caused loss to the petitioner to the tune of Rs.500/- per
month. Petitioner was illegally discharged from the services with effect from
31.08.1999 on account of unauthorized leave taken by the petitioner due to
illness of her sister. Petitioner could not be debarred from getting benefits for
which she was entitled prior to issuance of letter of discharge dated 31.08.1999.
9. Per contra, counter-affidavit has been filed by respondent-Management.
Mr. Abhay Mishra, learned counsel appearing for the respondent-
management vehemently opposes the contention of the learned counsel for the
petitioner and argues that the representation filed by the petitioner does not
constitute an industrial disputes warranting conciliation under the provisions of
appropriate law. Petitioner had already been discharged from the service of the
Company with effect from 30.0.1999 for her long unauthorized absence from the
duty however her case was taken up by the Union and as a special case, the
punishment of discharge was reduced to 15 days' suspension treating the
intervening period on leave with or without pay and, thereafter, petitioner was
allowed to resume her duties with effect from 08.07.2000. So far non-payment of
increments etc. are concerned, petitioner was advised to forward her claim
before appropriate forum and submit the same to the Accounts Division. Learned
counsel further submits that due to 15 days' suspension, the increment date of
the petitioner was shifted to the next month i.e. on 01.03.2000 and, accordingly,
she was given her increment on 01.03.2000.
Learned counsel further argues that the Labour Court has carefully
analyzed the evidences, documents and records and has come to a logical finding
that the dispute is stale and the punishment is not harsh and thus came to the
finding that the workman is not entitled for any relief. Learned counsel
accordingly submits that for the aforesaid reasons, the writ petition is not
maintainable and is fit to be dismissed.
10. To buttress his arguments, learned counsel appearing for the respondents
places heavy reliance on the following judgments:
(I) Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors. [(2000) 2 SCC
455];
(II) Prabhakar Vs. Joint Director, Sericulture Department & Anr. [(2015)
1 SCC 1];
11. Be that as it may, after hearing counsel for the parties at length and from
perusal of the documents brought on record and the judgments relied upon by the
respective parties, this Court is of the opinion that admittedly, there has been
unexplained delay and laches on the part of the petitioner. The Presiding Officer,
Labour Court, Jamshedpur has dismissed application filed by the petitioner on
the ground of limitation specifically stating therein that for raising claim under
Section 33(C)(2) of the Industrial Disputes Act, the employee has to raise her
claim within three months. However, petitioner has raised her claim after four
years without filing any petition for condonation of delay or explaining any
reason for such delay. Hence, it can comfortably be said that the present
reference is stale one and the present dispute has lost its significance and as on
date, no dispute is in existence. Even the domestic enquiry conducted against the
petitioner was held to be fair and proper.
12. The issue fell for consideration before the Hon'ble Apex Court in case of
Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors., reported in (2000) 2
SCC 455, wherein the Hon'ble Court has held as under:
"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 lapse of about seven years of 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. The only ground advanced
by the respondent was that two other employees who were
dismissed from service were reinstated. Under what
circumstances they were dismissed and subsequently
reinstated is nowhere mentioned. Demand raised by the
respondent for raising industrial dispute was ex facie bad and
incompetent.
7. In the present appeal it is not the case of the
respondent that the disciplinary proceedings, which resulted
in his dismissal, were in any way illegal or there was even
any irregularity. He availed his remedy of appeal under the
rules governing his conditions of service. It could not be said
that in the circumstances industrial dispute did arise or was
even apprehended after lapse of about seven years of the
dismissal of the respondent. Whenever a workman raises
some dispute it does not become industrial dispute and
appropriate government cannot in a mechanical fashion make
the reference of the alleged dispute terming as industrial
dispute. Central Government lacked power to make reference
both on the ground of delay in invoking the power
under section 10 of the Act and there being no industrial
dispute existing or even apprehended. The pur-pose of
reference is to keep industrial peace in an establishment. The
present reference is destructive to the industrial peace and
defeats the very object and purpose of the Act. Bank was
justified in thus moving the High Court seeking an order to
quash the reference in question."
Further, the Hon'ble Apex Court in case of Prabhakar Vs. Joint
Director, Sericulture Department & Anr., reported in (2015) 15 SCC 1, has
held as under:
"8. From the facts narrated above, it becomes clear that
for a period of fourteen years no grievance was made by the
petitioner qua his alleged termination. Though it was averred
that the petitioner had approached the Management time and
again and was given assurance that he would be taken back
in service, there is nothing on record to substantiate this. No
notice was served upon the Management. There is no
assurance given in writing by the Management at any point of
time. Such assertions are clearly self-serving. Pertinently,
even the Labour Court has not accepted the aforesaid
explanation anywhere and has gone by the fact that the
dispute was raised after a delay of fourteen years. Therefore,
keeping in mind the aforesaid facts, we would decide the issue
which has arisen, namely, whether reference of such a
belated claim was appropriate.
.......
.......
21. On the reading of these judgments, which are
discussed hereinafter, it can be discerned that in some
decisions where the reference was made after a lapse of
considerable period, the Court did not set aside the reference
but moulded the relief by either granting reinstatement but
denying back wages, fully or partially, or else granted
compensation, denying reinstatement. On the other hand, in
some of the decisions, the Court held that even when there
was no time prescribed to exercise power under Section 10 of
the Act, such a power could not be exercised at any point of
time to revive matters which had since been settled or had to
become stale. We would like to refer to these judgments at
this juncture.
22. As early as in 1959, this Court in the case of Shalimar
Works Ltd. v. Their Workmen ((1960) 1 SCR 150) pointed out
that there is no limitation prescribed in making a reference of
disputes to Industrial Tribunal under Section 10(1) of the Act.
At the same time, the Court also remarked that the dispute
should be referred as soon as possible after they have arisen
and after conciliation proceedings have failed. In that case,
reference was made after four year of dispute having arisen.
In these circumstances, this Court held that relief of
reinstatement should not be given to the discharged workmen
in such a belated and vague reference.
23. Again, in Western India Match Company Ltd.6, though
upholding the reference of dispute made nearly six years after
the previous refusal to make the reference, the Court
observed that in exercising its discretion to make reference,
the Government will take into consideration the time which
had lapsed between its earlier decision and the date when it
decides to reconsider it in the interest of justice and industrial
peace. Following observations from this judgment need to be
noticed for the purposes of the present case:
'8. From the words used in Section 4(k) of the Act
there can be no doubt that the Legislature has left
the question of making or refusing to make a
reference for adjudication to the discretion of the
Government. But the discretion is neither
unfettered nor arbitrary for the section clearly
provides that there must exist an industrial dispute
as defined by the Act or such a dispute must be
apprehended when the Government decides to
refer it for adjudication. No reference thus can be
made unless at the time when the Government
decides to make it an industrial dispute between
the employer and his employees either exists or is
apprehended. Therefore, the expression 'at any
time', though seemingly without any limits, is
governed by the context in which it appears.
Ordinarily, the question of making a reference
would arise after conciliation proceedings have
been gone through and the conciliation officer has
made a failure report. But the Government need
not wait until such a procedure has been
completed. In an urgent case, it can 'at any time',
i.e., even when such proceedings have not begun
or are still pending, decide to refer the dispute for
adjudication. The expression 'at any time' thus
takes in such cases as where the Government
decides to make a reference without waiting for
conciliation proceedings to begin or to be
completed. As already stated, the expression 'at
any time' in the context in which it is used
postulates that a reference can only be made if an
industrial dispute exists or is apprehended. No
reference is contemplated by the section when the
dispute is not an industrial dispute, or even if it is
so, it no longer exists or is not apprehended, for
instance, where it is already adjudicated or in
respect of which there is an agreement or a
settlement between the parties or where the
industry in question is no longer in existence.
xx xx xx
13. It is true that where a Government reconsiders
its previous decision and decides to make the
reference, such a decision might cause
inconvenience to the employer because the
employer in the meantime might have acted on the
belief that there would be no proceedings by way
of adjudication of the dispute between him and his
workmen. Such a consideration would, we should
think, be taken into account by the Government
whenever, in exercise of its discretion, it decides
to reopen its previous decision as also the time
which has lapsed between its earlier decision and
the date when it decides to reconsider it. These are
matters which the Government would have to take
into account while deciding whether it should
reopen its former decision in the interest of justice
and industrial peace but have nothing to do with
its jurisdiction under Section 4(k) of the Act.
Whether the intervening period may be short or
long would necessarily depend upon the facts and
circumstances of each case, and therefore, in
construing the expression 'at any time' in Section
4(k) it would be impossible to lay down any limits
to it."
The Hon'ble Apex Court in case of Shalimar Works Ltd. Vs. Workmen
[AIR 1959 SC 1217], pointed-out that there is no limitation prescribed in
making a reference of disputes to the Industrial Tribunal under Section 10(1) of
the Act. At the same time, the Court also remarked that the dispute should be
referred as soon as possible after they have arisen and after conciliation
proceedings have failed. In the instant case, reference was made after four years
of dispute having arisen.
13. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, no interference is warranted in the
instant writ application and the same is hereby dismissed.
(Dr. S.N. Pathak, J.)
RC /
