Karnataka High Court
A.G. Chandrappagol vs The Assistant Executive Engineer, ... on 21 October, 2003
Equivalent citations: 2004(1)KARLJ353, (2004)IILLJ460KANT
Author: R.V. Raveendran
Bench: R.V. Raveendran
JUDGMENT
1. Appellant claims that he was appointed as Heavy Mazdoor on daily wage basis in November 1980 and worked continuously till his services were illegally terminated on 15-2-1983 without complying with provisions of Section 25F of the Industrial Disputes Act, 1947 ('Act' for short). He filed an application dated 14-2-1996 before the Labour Officer, Belgaum Division, to take up the matter in conciliation and failing settlement to take steps to refer the matter for adjudication. In pursuance of it, the State Government, by order dated 4-5-1998 referred the dispute as to the validity of the alleged termination, to the Labour Court, Hubli under Section 10(1)(c) of the Act. By award dated 5-1-1999, the Labour Court rejected the reference on the ground that appellant had sought reference after 13 years and the delay was not explained. Feeling aggrieved, appellant filed W.P. No. 23187 of 2002. The learned Single Judge dismissed the petition by order dated 19-6-2002 on the ground that the conclusion reached by the Labour Court could not be faulted.
2. Relying on certain observations of the Supreme Court in Sapan Kumar Pandit v. Uttar Pradesh State Electricity Board and Ors. and Division Bench of Calcutta High Court in B.R. Herman and Mohata (India) (Private) Limited v. The Seventh Industrial Tribunal, West Bengal, 1977 Lab. I.C. (N.O.C.) 13 (Cal.) (DB) the learned Counsel for the appellant contended that when once a dispute is referred for adjudication by the appropriate Government under Section 10(1)(c) of the Act, the Labour Court cannot reject the reference on the ground of delay. He submitted that the Act does not prescribe any limitation for making a reference under Section 10(1) of the Act; and when a reference is made, there is a presumption that in the opinion of the appropriate Government making the reference, such a dispute exists or is apprehended.
2.1 In Sapan Kumar Pandit's case, the services of respondent were terminated on 17-7-1975. The Statet Government referred the dispute to Labour Court by an order dated 29-3-1993. The reference was challenged by the appellant by a writ petition. The Allahabad High Court quashed the reference on the ground that there was a delay of 15 years on the part of the respondent in approaching the conciliation officer by raising a dispute. The decision was reversed by the Supreme Court on facts accepting the detailed reasons given by the respondent explaining the delay. The Supreme Court observed:
"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 .... 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".
The Supreme Court found in that case that the dispute remained alive during the long interval of 15 years and therefore held that the reference ought not to have been quashed, but the long delay could be considered by the adjudicatory authority while moulding the relief.
2.2 In the case of B.R. Herman and Mohata, the Calcutta High Court held thus:
"In the matter of making a reference the State Government is the Supreme Authority and the Court would hardly enter that arena and encroach upon its function. It is a matter concerning the administrative action of the State Government. There is no period of limitation provided under Section 10 of the Act. The Tribunal is not competent to go into the question after assuming jurisdiction over the matter. It is duty-bound to decide the question on merit unless any jurisdictional points would be involved in it. The ground of delay cannot be made a jurisdictional matter before the Tribunal. The Tribunal may, if it so thinks fit, take such fact and consideration into account only in the matter of granting the relief to the employee, but that is a separate question".
2.3 The learned Counsel for appellant also relied on the following observations in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Limited and Anr. :
"It follows, therefore, that the provisions of Article 137 of the Schedule to 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".
3. The learned Counsel for the respondent submitted that the decision in Sapan Kumar Pandit's case was rendered in regard to a challenge to a reference made by the State Government, by the employer in a writ proceedings on the ground of delay. He pointed out that the said decision did not consider the jurisdiction and power of Labour Court to decide whether the claim existed or had became stale by the time the dispute was raised. He also referred to the following observations in Western India Match Company Limited v. The Western India Match Company Workers' Union and Ors. :
".... 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...
... the discretion (of the Government to make a reference) is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such dispute must be apprehended when the Government decides to refer it for adjudication .... There is no reason to think that the Government would not consider the matter properly or allow itself to be stampeded into making references in cases of old or stale disputes or reviving such disputes on the pressure of Unions".
4. The Supreme Court in Balbir Singh v. Punjab Roadways and Anr. (2001)1 SCC 133 : 2001 SCC (L and S) 165, has held that whether relief to the workman should be denied on the ground of delay or whether relief should be appropriately moulded is at the judicious discretion of the Tribunal depending upon the facts and circumstances of the case. The Court rejected the contention than in an industrial dispute, delay should not be taken as a ground for denying relief to the workman, if the order challenged is found unsustainable in law. The Supreme Court held that no such general principle was laid down in Ajaib Singh's case. It was held the observations in Ajaib Singh's case should be read in the context of its fact as in that case the ground of delay (of 7 years) was not taken by the management before the Labour Court. Thus, it is clear that the Labour Court is not precluded either from examining the question as to whether there was delay in raising the dispute or denying relief on the ground of delay.
5. We may also refer to the decision of the Supreme Court in Assistant Executive Engineer v. Shivalinga 2002-I-LLJ-457 (SC), in an identical matter. In that case there was a delay of 9 years and 10 months. The Labour Court rejected the reference. The High Court however held that delay was not fatal and granted relief. The Supreme Court while allowing the appeal of the department, observed thus:
"Learned Counsel for the respondent relief upon two decisions of this Court in Ajaib Singh's case, supra, and Sapan Kumar Pandit's case, supra, 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 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 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".
(emphasis supplied)
6. In Nedungadi Bank Limited v. K.P. Madhavan Kutty , while allowing an appeal against the rejection of a writ petition challenging a reference made by the appropriate Government, the Supreme Court observed thus:
"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".
(emphasis supplied) Sapan Kumar Pandit's case, supra, itself recognises the position that in some cases, on account of delay, the dispute will wane into total eclipse, which is another way of stating that dispute has become stale. The following observations are relevant:
"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 sometime. But, when the dispute remained alive though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse".
7. In a dispute challenging the dismissal, discharge or termination, where the cause of action arises at a specific point of time, if there is no protest by the concerned workman or by a worker's Union by raising a dispute for several years, the dispute becomes stale, on account of the delay. Per contra, in regard to a dispute relating to a claim involving a continuing cause of action, say either in regard to higher wages or allowances, hours of work or shifts, or grades, the question of delay may not arise at all and the dispute continues to 'exist' even after expiry of several years from the 'cause' and may never become a 'stale' claim. Having regard to the nature and object of the Act and the definition of industrial dispute, no time-limit or 'limitation' was provided in Section 10 of the Act. Earlier, an individual dispute was not intended to be an industrial dispute. Section 2A was subsequently inserted under which discharge, dismissal, retrenchment or termination otherwise, of an individual workman, is deemed to be an industrial dispute and as a consequence, espousal of an individual dispute by an Union of workmen for converting it into an industrial dispute was no longer necessary. When 'individual disputes' were deemed to be 'industrial disputes', 'delay' in raising the dispute became a relevant factor. In disputes relating to dismissal/discharge/retrenchment/termination of individual workman, it became necessary to consider whether the dispute ceased to 'exist' or became stale, on account of delay. The appropriate Government could reject the request for reference of a dispute, or if referred, the Labour Court /Industrial Tribunal could reject the reference, on the ground that the dispute was stale or had ceased to exist.
8. When a Labour Court/Industrial Tribunal considers the question of delay to find out whether a dispute has became stale, it is necessary to keep in view the distinction between the date of raising the dispute and the date of reference by the appropriate Government. A dispute is raised when the workmen protest against the action/inaction of the employer by raising a dispute and seeks conciliation. When a workman is dismissed or discharged or otherwise terminated, the workman can himself raise a dispute or the workmen collectively can raise a dispute, When the conciliation officer submits a failure report after conciliation in regard to such dispute, the appropriate Government makes a reference to the Labour Court or Industrial Tribunal under Section 10(1)(c) or (d) of the Act. Many a time, conciliation takes considerable time. After a failure report of conciliation is received, the appropriate Government may also take some time to decide as to whether a reference should be made. If the raising of the dispute itself is unduly delayed it will become a state claim. It ceases to exist. But a dispute raised without delay before it became stale, will not become stale because of the period spent in conciliation or the time taken by the appropriate Government in making the reference. The question whether a dispute has become 'stale' or 'exists' is a matter that can be considered by the appropriate Government while making the reference. As noticed above, the question can also be considered and decided by the Labour Court/Industrial Tribunal to which the dispute is referred. In fact, the decisions in the cases of Ajaib Singh, Balbir Singh and Shivalinga, recognise such power and jurisdiction in Labour Court/Industrial Tribunals. A Labour Court/Tribunal may reject a reference on the ground that it was a stale claim when it was raised as a dispute. It is not precluded from considering the question, merely on the ground that the appropriate Government has already made a reference. But, the Labour Court cannot reject a reference on the ground of any delay on the part of the conciliation officer or the appropriate Government, if the dispute when raised was very much existing and the delay was on the part of conciliation officer or the appropriate Government. We may in this context refer to the following observations of the Orissa High Court in Management of Orissa Khadi and Village Industries Board, Bhubaneswar v. Their Workmen Shri G. B. Dhal and Ors. 1990-l-LLJ-224 (Ori.) (DB) "The date of raising the dispute is not the date of the reference by the Government. Dispute is raised when the workman protests against the action taken by the management. But, if much time is consumed in the conciliation proceeding for some reason or the other and if the Government takes an inordinately longtime to take a decision after receipt of the failure report, a party cannot be blamed. It has, therefore, to be seen if there had not been inordinate delay on the part of the workman in raising the dispute".
9. The following principles emerge from the aforesaid decisions:
(i) In regard to an 'industrial dispute' between the employer and workmen in regard to terms of employment or conditions of labour (other than deemed industrial disputes relating to individual workman), normally the claims do not become stale. But in the case of deemed industrial disputes relating to termination of individual workman, it is necessary to examine in every case whether the dispute exists or has become stale. The appropriate Government should do it before exercising the power under Section 10(1). The Labour Court or Industrial Tribunal can also examine it when considering the reference.
(ii) The Labour Court is not precluded from examining whether the reference should be rejected on the ground that the dispute ceased to exist or became stale on account of long unexplained delay on the part of the workman or the Union of workmen in raising the dispute. The mere fact, that the appropriate Government has made a reference under Section 10 of the Act does not mean that the 'dispute' exists or is apprehended. If the Labour Court concludes that the claim/dispute has become 'stale' or 'ceased to exist', on account of inordinate delay, the reference can be rejected on that ground.
(iii) The employer can challenge a reference, on the ground that there is no 'existing' dispute that could be referred, by filing a petition under Article 226. Instead of filing a writ petition, the employer can also seek rejection of the reference before the Industrial Tribunal/Labour Court on the ground of unexplained delay rendering the claim stale.
(iv) The period of delay to be considered to decide whether a claim is stale or not, is the period between the date of alleged termination and the date on which the process for conciliation/reference is set in motion by or on behalf of the workman. The period spent in conciliation and in the process of making the reference will not be taken into account for determining the period of delay.
(v) The question wnether a dispute or claim has become 'stale' has to be decided by the Industrial Tribunal/Labour Court with reference to the facts and circumstances of the case. Any unexplained long delay will render a claim stale. Where the relationship of 'employer' and 'employee' is seriously in dispute, or where there is a dispute as to whether the employee served for the minimum period required under law for any purpose, necessitating production of records by the employer, any delay would make it difficult or impossible for the employer to let in evidence to establish the true facts. In such circumstances, the claim may become stale even by passage of three to four years.
10. In this case, appellant claimed that he was terminated in February 1983. From the years 1983 to 1996, he did not make any request to take him back to duty nor seek to enforce any remedy. Thirteen years thereafter, for the first time, he made an application before the Labour Officer seeking conciliation and reference of the dispute to the Labour Court. Labour Court found that appellant had not satisfactorily explained the delay. It is in this background that the reference was rejected by the Labour Court. At such a distance of time neither the records nor the persons who dealt with the matter will be available, particularly in regard to projects undertaken by the department under different schemes. The dispute had clearly become stale and the Labour Court rightly rejected the reference. We find no infirmity in the order of the Labour Court or in the order of the learned Single Judge confirming the same.
Appeal is therefore dismissed as having no merit.