Uttarakhand High Court
Gulab Singh Rawat And Others vs Uttarakhand Forest Development ... on 18 August, 2015
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2943 of 2013 (M/S)
Gulab Singh Rawat & others ......Petitioners
Vs.
Uttarakhand Forest Development
Corporation Ltd. & others .....Respondents
With
Writ Petition No. 2944 of 2013 (M/S)
Tika Prasad Paukhriyal & anothers ......Petitioners
Vs.
Uttarakhand Forest Development
Corporation Ltd. & others .....Respondents
And
Writ Petition No. 2995 of 2013 (M/S)
Gulab Singh Rawat ......Petitioner
Vs.
Uttarakhand Forest Development
Corporation Ltd. & others .....Respondents
Present :
Mr. Jitendra Chaudhary, Advocate for the petitioners.
Mr. Virendra Kaparwan, Advocate for the respondents.
Hon'ble Alok Singh, J. (Oral)
For the reason stated in the applications, delay in filing the rejoinder affidavit on behalf of the petitioners is condoned. Rejoinder affidavits are taken on record.
CLMA Nos. 627 and 629 of 2015 stand disposed of accordingly.
All these writ petitions are inter connected and identical questions of fact and law are involved, therefore, with the consent of the learned counsel appearing for the 2 parties, all these writ petitions are heard together and are being disposed of by this common judgment.
Brief facts of the present case, inter alia, are that all the petitioners along with other workmen were engaged by the U.P. Forest Corporation before the creation of the State of Uttarakhand as daily-wagers to work as Scalars/Chowkidars. Those daily-wagers including petitioners were above 700 in numbers.
All the workmen/daily-wagers including the petitioners, herein, were retrenched by the Uttar Pradesh Forest Corporation in the year 1995 after paying one month's wage in lieu of notice and retrenchment compensation in compliance of Section 6-N of the U.P. Industrial Disputes Act. Some of the workmen raised industrial disputes before the learned Labour Court, while petitioners, herein, did not raise any dispute. Learned Labour Court, vide order/award dated 24.12.1997, was pleased to dismiss the claims of the workmen on the ground that Forest Corporation did not fall within the definition of Industry, therefore, Section 25-N could not be pressed in service. Feeling aggrieved, those workmen, who have approached the Labour Court, have preferred different writ petitions before the Allahabad High Court, challenging the order/award passed by the learned Labour Court answering the reference against the workmen. Petitioners, herein, without approaching the Labour Court, have directly preferred writ petitions before the Allahabad High Court. After the bifurcation of State of Uttar Pradesh and creation of the State of Uttarakhand, all those writ petitions were transferred to this Court and were allowed by this Court vide judgment dated 21.08.2003. This Court was pleased to hold that Forest Corporation is an industry, therefore, Section 25-N of the Industrial Disputes Act had full 3 application, consequently, non-compliance of Section 25-N of the Act was fatal. Having held so, this Court was pleased to quash the retrenchment of the petitioners and was further pleased to direct the reinstatement of the petitioners along with other workmen.
The Uttarakhand Forest Development Corporation has filed different SLPs before the Hon'ble Apex Court challenging the judgment dated 21.08.2003 passed by this Court. Hon'ble Apex Court vide judgment dated 12.12.2006 as reported in (2007) 02 S.C.C. 112 was pleased to quash the judgment passed by this Court in the case of all the petitioners holding that the petitioners have approached the High Court without approaching the Labour Court. However, Hon'ble Apex Court was pleased to dismiss the appeals against the judgment passed by this Court in the matter of those workmen who have first approached the Labour Court, and after that, approached the High Court.
After dismissal of the SLPs by the Hon'ble Apex Court vide judgment dated 12.12.2006, petitioners herein have allegedly approached the State Government under Section 2A of the U.P. Industrial Disputes Act along with application seeking condonation of delay to make reference to the Labour Court.
Learned Labour Court, having received the references in the year 2011, proceeded with the matters along with references of other workmen. Learned Labour Court, vide award/judgment dated 31.07.2013, was pleased to dismiss the references of the petitioners on the ground that in their case, references were made in the year 2011 which were hopelessly time barred. Feeling aggrieved, petitioners have approached this Court by way of present writ petitions.
4I have heard Mr. Jitendra Chaudhary, learned counsel appearing for the petitioners and Mr. V.K. Kaparwan, learned counsel appearing for the respondents and have carefully perused the record.
Mr. Jitendra Chaudhary, learned counsel appearing for the petitioners, has vehemently argued that almost 700 daily-wagers were retrenched; few hundred daily-wagers, who had approached this Court after approaching the learned Labour Court, have already been reinstated, as directed by Hon'ble Apex Court vide judgment dated 12.12.2006. He further contends that other workmen, who had approached the Labour Court in the year 2005-06, were also reinstated with 100% backwages; while who have approached the Labour Court in the year 2007, were reinstated with 50% backwages and who have approached the Labour Court in the year 2008, were reinstated with 25% backwages and petitioners were denied reinstatement only on the ground of latches and delay since in their case, references were made in the year 2011.
Hon'ble Apex Court in the case of Nedungadi Bank Ltd. Vs. K.P. Madyavankutty and others reported in (2000) 2 SCC 455 has held as under:
"Law although does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the ID Act, this power cannot be exercised at any point of time and to revive matters which had already been settled. Power is to be exercised reasonably and in a rational manner. There is no rational basis on which the Central Government has exercised powers in the instant 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 5 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 is rather incongruous that the reference be made under Section 10 of the Act."
Hon'ble Apex Court in the case of Sapan Kumar Pandit vs. U.P. State Electricity Board and others reported in (2001) 6 SCC 222 has held as under:
"Section 4-K of the U.P. ID Act, 1947 is almost in tune with Section 10 of the ID Act, 1947, and the difference between these two provisions does not relate to the points at issue in the present case. The words "where the Government is of opinion that any industrial dispute exists or is apprehended"
have to be read in conjunction with the words "at any time". They are, in a way, complimentary to each other. The government's power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression "at any time" terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference.
Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? That apart, a decision of the Government in this regard cannot be questioned on the possibility of what another party would think, whether any dispute existed or not. 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."
6In view of the dictum of the Hon'ble Apex Court as reproduced, hereinbefore, Section 4K of the U.P. Industrial Disputes Act, 1947 is almost in the tune with Section 10 of the Industrial Disputes Act. Law, although does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Industrial Dispute Act, this power cannot be exercised at any point of time and to revive matters which had already been settled, power is to be exercised reasonably and in a rational manner. The Government's power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression 'at any time' terminates with eclipse of the industrial dispute. The decision of the Government in this regard cannot be questioned on the possibility of what another party would think whether any dispute existed or not. 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.
In the present case, writ petitions filed by the petitioners, herein, were dismissed by the Hon'ble Apex Court vide judgment dated 12.12.2006 on the ground that the petitioners have approached the High Court directly without approaching the Labour Court. Undisputedly, review applications filed by the petitioners came to be dismissed on 20.11.2007 and thereafter, the petitioners have moved the applications for the references under Section 2A of the U.P. Industrial Disputes Act. Since, the petitioners had approached the High Court directly and their writ petitions were dismissed on the ground that the petitioners have not availed the alternate remedy, therefore, decision of the Government to make references cannot be 7 faulted with. If the State Government has taken 2-3 years in a conciliation proceedings to form the opinion as to whether reference is to be made or not, fault cannot be attributed to the workman. Therefore, the order of the Labour Court declining the same relief to the workman, which was awarded to the similarly situated workmen on the ground of delay, seems to be unjustified and irrational.
Learned counsel appearing for the parties at this stage contended that present case is squarely covered by the judgment dated 31.03.2014 passed by this Court in Writ Petition (M/S) No. 352 of 2014, Uttarakhand Forest Development Corporation Vs. Dharm Pal and in the connected matters, therefore, present petition be disposed of in the same terms.
Consequently, I direct that the Uttarakhand Forest Development Corporation/respondent, herein, shall pay Rs. 1,50,000/- to each and every petitioner/workman, herein, in lieu of the reinstatement and backwages. Compensation shall be paid within four weeks from today positively, failing which, Corporation shall also pay interest @ 10% per annum from today till the actual payment is made in favour of the workmen.
All writ petitions stand disposed of accordingly.
CLMA No. 14483 of 2013 also stands disposed of accordingly.
(Alok Singh, J.) Dated: 18.08.2015 Deepak/JM