Jharkhand High Court
Hiralal Chamar vs The Union Of India on 29 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 299 of 2021
---------
Hiralal Chamar, aged about 58 years, Son of Late Bomai Chamar, Mining Sirdar,
of South Bhawra Colliery under E.J. Area of M/s B.C.C.L., Resident of Qtr. No.
C/15, Bhowra Bazar, Gandhi Nagar, P.O. & P.S. Bhowra, Dist. Dhanbad-828302
... Appellant
Versus
1. The Union of India, through Secretary Ministry of Labour, Shram Mantralaya,
PO&PS-Rafi Marg, New Delhi- 110001
2. Employers in relation to the management of E.J. Area of M/s Bharat Coking
Coal Limited bearing its office at Koyla Bhawan, Koyla Nagar, P.O. Koyla
Nagar, P.S. Saraidhela, Dist.- Dhanbad-826005
3. The General Manager, E.J. Area of M/s Bharat Coking Coal Limited, P.O.
Bhowra, P.S. Bhowra, Dist.- Dhanbad-828302 ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant : Mr. Manoj Kumar Sinha, Advocate
For the UOI : Mr. Ravi Prakash, CGC
For the BCCL : Mr. Arpan Mishra, Advocate
---------
ORDER
th
29 August 2023
I.A. No. 8350 of 2022
This interlocutory application has been filed under section 5 of the
Limitation Act seeking condonation of delay of 220 days in filing the present
Letters Patent Appeal.
2. In view of the statements made in this interlocutory application, the
delay of 220 days in filing this appeal is condoned.
3. I.A. No. 8350 of 2022 is, accordingly, allowed.
L.P.A. No. 299 of 2021
4. The workman being aggrieved of refusal by the appropriate
government to refer the dispute for adjudication approached the writ Court by
filing WP(L) No.3324 of 2018.
5. The writ Court has held that in respect of a stale claim the aggrieved
party cannot be permitted to raise an industrial dispute.
6. The writ Court has held as under:
"Heard counsel for the parties.
From the discussions made above, it is evident that in the present case
the dispute has come into existence in the year 1996 when the concerned
employee was shifted from piece-rated category to time-rated category. As per the
employee, representation has been made, but, it is admitted position that dispute
has been raised for the first time in the year 2016 when proper application has
been made under Form-A as per the Central Rules (supra) to the authorised
officer. In the present case, such application has been made in the year 2016 while
the cause of action is of the year 1996. So far representation to the authority is
concerned, that has not evoked any response from authority, still, workman has
not raised the dispute in accordance with law.
Another plea of the petitioner is that it is continuing cause of action as he
is getting less wages in each month and as such every month's gives fresh cause of
action to the petitioner. In the present case, the bone of contention is not giving
pay protection while shifting his service from the category of piece-rated to time-
rated in the year 1996. Getting less payment is consequence not the cause of
action. Thus, the plea raised by the petitioner is not maintainable.
It is also well settled principle of law, in view of the judicial
pronouncement (supra), that while referring dispute for adjudication it is duty of
the Central Government that stale claim is not allowed, otherwise it is contrary to
the spirit of the Industrial Disputes Act and such act will not promote peace rather
disharmony.
In view of the above discussions, this Court finds that the Central
Government has rightly refused the reference. Resultantly, this writ petition is
hereby dismissed."
7. Briefly stated, the workman was appointed as Miner Loader as
piece-rated worker on 2nd December 1985 and was provisionally allowed to work
as Mining Sardar as time-rated worker by an office order dated 9th February
1996. Later on, he was placed in the pay scale of Mining Sardar by an order
dated 13th December 1996. He made an application in the year 2016 claiming
special pay protection as a piece-rated worker. The writ Court referred to the
judgment in "Prabhakar v. Sericulture Deptt." (2015) 15 SCC 1 and the
provisions under sections 2(k), 10 and 12 of the Industrial Disputes Act, 1947 to
arrive at a conclusion that the appropriate government has rightly refused to refer
the dispute for adjudication.
8. This is by now well settled that under section 10(1)(c) the
appropriate government exercises administrative powers and at this stage no
adjudication on the merits of the dispute is contemplated under the Industrial
Disputes Act, 1947. In "Telco Convoy Driver's Mazdoor Sangh v. State of Bihar"
(1989) 3 SCC 271 the Hon'ble Supreme Court has held as under:
"13. ...................... It is now well settled that, while exercising power under
Section 10(1) of the Act, the function of the appropriate Government is an
administrative function and not a judicial or quasi-judicial function, and that in
performing this administrative function the Government cannot delve into the
merits of the dispute and take upon itself the determination of the lis, which would
certainly be in excess of the power conferred on it by Section 10 of the Act.
See Ram Avtar Sharma v. State of Haryana [(1985) 3 SCC 189 : M.P. Irrigation
Karamchari Sangh v. State of M.P. [(1985) 2 SCC 103 : Shambhu Nath
Goyal v. Bank of Baroda, Jullundur [(1978) 2 SCC 353."
9. On the aspect of delay, there cannot be any dispute that loss of
difference in wages would provide a continuing cause of action to the workman
and as held by the Hon'ble Supreme Court in "M.R. Gupta v. Union of India"
(1995) 5 SCC 628 the workman shall have a valid cause of action. The Hon'ble
Supreme Court has observed as under:
"7. Learned counsel for the respondents placed strong reliance on the decision
of this Court in S.S. Rathore v. State of M.P. [(1989) 4 SCC 582. That decision
has no application in the present case. That was a case of termination of service
and, therefore, a case of one time action, unlike the claim for payment of correct
salary according to the rules throughout the service giving rise to a fresh cause of
action each time the salary was incorrectly computed and paid. No further
consideration of that decision is required to indicate its inapplicability in the
present case."
10. Having regard to the aforesaid facts and circumstances in the case,
we are unable to accord our concurrence to the writ Court's order and,
accordingly, the order dated 8th July 2019 passed in WP(L) No. 3324 of 2018 is
set aside. Consequently, the order dated 15th February 2017 passed by the
appropriate government is quashed and the matter is remitted back to the
appropriate government for formulating the reference for adjudication.
11. L.P.A. No. 299 of 2021 is allowed in the aforesaid terms.
(Shree Chandrashekhar, J.)
(Anubha Rawat Choudhary, J.)
Jharkhand High Court, Ranchi
Dated: 29th August 2023
R.K/N.A.F.R
