Jharkhand High Court
Bihar Colliery Kamgar Union Through Its ... vs Union Of India Through Its Section ... on 25 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 5248 of 2019
Bihar Colliery Kamgar Union through its Secretary, Sri D. Mukherjee,
aged about 72 years, Son of Late S.S. Mukherjee, resident of
Jharnapara, Hirapur, P.O., P.S. & District Dhanbad
... ... Petitioner
Versus
1. Union of India through its Section Officer, Ministry of
Labour/Shram Mantralaya, New Delhi, P.O., P.S. & District New
Delhi
2. Employer in relation to the Management of M/s B.C.C.L.,
through its General Manager, Govindpur Area No. 3, P.O. & P.S.
Sonardih, District Dhanbad ... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Saibal Kumar Laik, Advocate
For the UOI : Mr. Ravi Prakash, CGC
For the Resp. No. 2 : Ms. Swati Shalini, Advocate
---
27/25.11.2024
1. This writ petition has been filed challenging the Office Order
dated 16.7.2019 (Annexore-6) passed by Respondent no. 1 whereby
and where under the prayer made by the petitioner for referring the
adjudication of the dispute of the concerned workman regarding his
dismissal has been refused.
2. The reasons mentioned in the impugned order refusing to refer
the dispute for adjudication is quoted as under: -
".............
"Sri Simanchal Awain, Mine Loader was absent from his
duties w.e.f 01.02.2000. The workman was dismissed
vide Order dated 5/6-12-2005 whereas the dispute has
been raised by the union on 6.3.2018 after more than 12
years. It is not reasonable to raise the dispute after so
long period. As per Section 2A of the ID Act, an
Industrial dispute can be raised within 3 years from the
date of dismissal of the workman. But in this instant
case, Sri Simanchal Swain was dismissed on 5/6.12.2005
whereas the dispute has been raised by the Union on
6.3.2018 after more than 12 years from his dismissal
which is highly belated case. In this connection, the
Judgement of the Supreme Court in Nedungadi Bank
Ltd. Vs K.P. Madhuvankutty has held that a dismissal
should be raised within a reasonable time."
Arguments of the petitioner.
3. The learned counsel for the petitioner has submitted that by the
impugned order, the dispute regarding dismissal of the concerned
workman has been refused to be referred for adjudication by labour
court. He has submitted that mere delay cannot be a ground to refuse
the reference. He has relied upon the judgment passed by this Court in
W.P.(L) No. 5260 of 2019 dated 13th March, 2024.
4. The learned counsel for the petitioner has also relied upon the
judgment passed by the Hon'ble Supreme Court reported in (2001) 6
SCC 222 (Sapan Kumar Pandit vs. U.P. State Electricity Board &
Others) paragraph 8, 9, 13 and 15 to submit that in the said case delay
was about 15 years. He has further submitted that the length of delay
will not decide as to whether the dispute was existing or not.
Arguments of the respondents.
5. The learned counsel appearing on behalf of the respondents has
opposed the prayer and has submitted that after 12 years, the dispute
was sought to be raised and there was no explanation for such delay.
The learned counsel has relied upon the judgments passed by Hon'ble
Supreme Court reported in (2000) 2 SCC 455 (Nedungadi Bank Ltd.
K.P. Madhavankutty & Others) para 6 and 7 and (2015) 15 SCC 1
(Prabhakar vs. Joint Director, Sericulture Deparrtment & Anr.)
paragraphs 12, 42, 44 and 45.
6. The learned counsel has further relied upon the judgment
passed by the Hon'ble Supreme Court reported in (2008) 17 SCC 627
(U.P. State Road Transport Corporation versus Ram Singh and
Another) and has referred to paragraph 7 to submit that in that case
the industrial dispute was raised after the delay of 13 years which was
found to be unreasonable and it was also observed that lack of
diligence on the part of the concerned respondent was apparent. The
Hon'ble Supreme Court also held that the reason for delay 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 learned court wishes to hold a further enquiry into the
fact.
7. The learned counsel has submitted the judgment passed in
W.P.(L) 5260 of 2019 as relied upon by the petitioner does not apply
to the facts of the present case as in the said judgment the dispute
which was sought to be referred was regarding grant of compassionate
appointment and that the termination letter was never served upon the
deceased father of the applicant.
8. The learned counsel has also tried to distinguish the judgment
relied upon by the petitioner reported in (2001) 6 SCC 222 and has
referred to paragraph nos. 5,6 and 7 to submit that it was observed
therein that it was not a case that the appellant woke up at the end of
15 years to raise an industrial dispute and the delay and the
circumstances under which the dispute was raised has been explained.
She submits that in the present case the concerned workman was
dismissed as back as in the year 2005 and there is no explanation for
not raising the dispute till 2018.
Findings of this Court.
9. From perusal of the impugned order, it is apparent that the
authority while refusing to refer the dispute for adjudication has cited
following reasons: -
(a) It is not reasonable to raise the dispute after so long
period;
(b) As per Section 2A of the Industrial Disputes Act, an
industrial dispute can be raised within three years from
the date of dismissal of workman, but in the present case,
it has been raised after 12 years and hence it is a highly
belated case.
(c) In the case of Nedungadi Bank Ltd. (supra) it has
been held that the dispute regarding dismissal should be
raised within reasonable time.
10. In the judgement passed by the Hon'ble Supreme Court in the
case of Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC
455, it has been held that law does not prescribe any time-limit for the
appropriate Government to exercise its powers under Section 10 of the
Industrial Dispute Act, 1947 to refer the dispute for adjudication but at
the same time it is not that this power can be exercised at any point of
time and to revive matters which had since been settled. It has been
held that power is to be exercised reasonably and in a rational manner.
It was found in the said case that there was no rational basis on which
the Central Government had referred the dispute for adjudication after
a lapse of about seven years of the order of dismissal from service and
held that at the time reference was made no industrial dispute existed
or could be even said to have been apprehended. It has also been held
that a dispute which is stale could not be the subject-matter of
reference under Section 10 of the Act and as to when a dispute can be
said to be stale would depend on the facts and circumstances of each
case. It was held that the Central Government lacked power to make
reference both on the ground of delay in invoking the power under
Section 10 of the Act and also on the ground that no industrial dispute
was existing or even apprehended.
11. In the judgment passed by the Hon'ble Supreme Court reported
in (2015) 15 SCC 1 (supra), numerous judgments have been
considered including the judgment of Nedungadi Bank (supra) and it
has been held that the law of limitation does not apply to proceedings
under Industrial Disputes Act, 1947 and the word "at any time" used
in Section 10 would support that there is no period of limitation in
making the order of reference, but at the same time, the appropriate
Government has to keep in mind as to whether the dispute is still
existing / live dispute and has not become a stale claim and if that is
so, the reference can be refused. In the said judgement, it has been
held that the reference after fourteen years of termination without any
justifiable explanation for delay was not maintainable and the
appropriate Government had no jurisdiction or power to make
reference of a non-existing dispute. The principle of law on the point
has been summarized in paragraph 44 as under: -
"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 supplied)
The Hon'ble Supreme Court in the said judgement has considered the
various circumstances which may arise to test as to whether the
industrial dispute was existing or had become a stale claim and has
held that relief can be denied on the ground of unexplained delay and
laches and / or on presumption that the person had waived his right or
acquiesced and also to safeguard industrial peace. As per provisions of
Section 2A of the Industrial Disputes Act, the dispute relating to
discharge, dismissal, retrenchment or termination of an individual are
also deemed as industrial dispute and therefore an individual is given
right to raise these disputes. While examining the matter regarding
laches, delays and acquiescence, it has been held that it is well
recognized principle of jurisprudence that a right not exercised for a
long time is non-existent and delay defeats equities.
12. In the judgment passed by the Hon'ble Supreme Court reported
in (2008) 17 SCC 627 (U.P. State Road Transport Corporation V.
Ram Singh and Another), it has been observed that in several
decisions it has been held that while delay cannot by itself be a
sufficient reason to reject the Industrial Dispute nevertheless the delay
cannot be unreasonable and while holding so it has been held that 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 said case, the delay of 13 years was
held to be unreasonable. The Hon'ble Supreme Court also observed
that mere fact that the respondent of the case was making repeated
representations would not justify his raising the issue before the
Labour Court after 13 years and even in the last representation was
made in 1983 and the industrial dispute was raised in the year 1986.
The Hon'ble Supreme Court observed that lack of diligence on the
part of the respondent in the said case was apparent.
13. The impugned order dated 16.07.2019 was issued referring to
the failure of conciliation report dated 07.05.2019 and observing that
the ministry did not consider the dispute fit for adjudication on
account of the reason that from the date of order of dismissal more
than 12 years had lapsed when the petitioner raised dispute on
06.03.2018 and it was not reasonable to raise the dispute after a long
period. It was also stated in the impugned order that as per Section 2A
of the Industrial Disputes Act and an industrial dispute can be raised
within three years from the date of dismissal of the workman and
challenge to the order of dismissal was highly belated and reference
was made to the judgment passed by the Hon'ble Supreme Court
reported in the case of Nedungadi Bank Ltd. V. K.P. Madhavankutty,
(2000) 2 SCC 455 to say that it has been held that the dispute
regarding dismissal should be raised within a reasonable period of
time.
14. Admittedly, the concerned workman was dismissed on account
of absenteeism in the year 2005 and it remained unchallenged but
there is no explanation for not challenging the order of dismissal. In
the year 2012 certain circular was issued in connection with taking the
employees back in service who were dismissed on account of
absenteeism. Thereafter, vide letter dated 06.03.2018 the petitioner
challenged the order of dismissal.
15. This Court finds that the order of dismissal remained
unchallenged for a period of more than 12 years without any
explanation and the circular dated 20.03.2012 certainly had nothing to
do with the challenge to the order of dismissal itself. Further, the
management while responding before the Assistant Labour
Commissioner had clearly asserted that the relevant papers like
enquiry proceeding/enquiry report were not readily available at their
office and it was in this background the reference was denied by
stating that the dispute was raised beyond the reasonable time.
16. This Court finds that there was complete lack of diligence and
promptness from the side of the concerned workman to either raise
dispute under Section 2 (A) of Industrial Disputes Act or to approach
the Union to raise such dispute in connection with the dismissal of the
concerned workman. On the one hand, the dispute regarding dismissal
was raised after expiry of 12 years and on the other hand the
management had also taken a plea before the Assistant Labour
Commissioner that the records were not readily available. This Court
also finds that there is no explanation on the part of the concerned
workman to have remained silent in the matter of his dismissal for 12
long years. The circular of the year to take back the workman who
were dismissed on account of absenteeism under certain
circumstances also has no bearing as the same has nothing to do with
the challenge to the order of dismissal itself. Moreover, even after the
circular of the year 2012, the petitioner filed an application raising the
industrial dispute regarding dismissal of the concerned workman only
in the year 2018 and by this time the records pertaining to the
concerned workman was not readily traceable at the hand of the
Management. In the aforesaid background, the case when seen in the
light of the judgement reported in (2008) 17 SCC 627 (supra) and also
judgment reported in (2015) 15 SCC 1 (supra) and in the absence of
any explanation for not raising the dispute regarding dismissal for 12
long years from 2005 to 2018, this Court is of the view that the
impugned order refusing to refer the dispute for adjudication by
observing that the dispute raised is belatedly and has been raised
beyond reasonable period, does not call for any interference.
17. So far as the judgment passed by this Court in W.P.(L) No.
5260 of 2019 is concerned, in the said case, the industrial dispute was
not raised by the concerned workman for six years and the concerned
workman expired and a stand was taken that the order of dismissal
was never communicated to the ex-employee and thus the delay was
well explained which was taken into consideration while passing the
judgement. In (2001) 6 SCC 222 also, the delay and the circumstances
under which the dispute was raised was well explained and in the
opinion of the government the industrial dispute existed and matter
was referred, but the High Court had quashed the reference and the
appeal filed by the workman was allowed by the Hon'ble Supreme
Court by observing that the real test is whether the dispute existed on
the date of reference and the only authority who can form an opinion
in this respect is the Government. This Court finds that the said
judgment does not apply to the facts of the present case, inasmuch as,
there is no explanation whatsoever from the side of the petitioner or
the concerned workman as to why the order of dismissal passed way
back in the year 2005 was not challenged by the concerned workman
for a long period of 12 years and the government has applied their
mind and recorded that the dispute was belated and was raised beyond
reasonable period.
18. In view of the aforesaid findings, there is no merit in this writ
petition, which is hereby dismissed.
19. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Mukul/Rakesh
