Gujarat High Court
Arunbhai Ratilal Rathod vs Assistant Labour on 29 January, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri
ARUNBHAI RATILAL RATHOD....Petitioner(s)V/SASSISTANT LABOUR COMMISSIONER C/SCA/17920/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17920 of 2005 With SPECIAL CIVIL APPLICATION NO. 16929 of 2012 TO SPECIAL CIVIL APPLICATION NO. 17004 of 2012 With SPECIAL CIVIL APPLICATION NO. 17331 of 2012 TO SPECIAL CIVIL APPLICATION NO. 17336 of 2012 With SPECIAL CIVIL APPLICATION NO. 17489 of 2012 With SPECIAL CIVIL APPLICATION NO. 76 of 2013 TO SPECIAL CIVIL APPLICATION NO. 78 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ ARUNBHAI RATILAL RATHOD....Petitioner(s) Versus ASSISTANT LABOUR COMMISSIONER & 2....Respondent(s) ================================================================ Appearance: MR P C CHAUDHARI, ADVOCATE for the Petitioner(s) No. 1 MS AMITA SHAH AGP for the Respondent(s) No. 1 MR GM JOSHI, ADVOCATE for the Respondent(s) No. 3.1 - 3.2 MR KM PATEL SR. ADVOCATE WITH MR SN THAKKAR, ADVOCATE for the Respondent(s) No. 2 MR VIMAL M PATEL, ADVOCATE for the Respondent(s) No. 2 RULE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 29/01/2013 ORAL JUDGMENT
1. This group of matters involve common questions on law and facts and hence, they are decided by this common judgment.
2. Whether the appropriate Government seized with the issue of considering a reference made u/s.10(1) of the Industrial Disputes Act, 1947 was justified in refusing to refer a dispute on the ground that there did not exist any employer-employee relationship between the workmen and respondent no.2-Dairy is the question that has come up for consideration of this Court in this group of petitions.
3. Briefly stated, the facts of the case are that the petitioners herein raised a demand for reinstatement with full back wages against Valsad Jilla Sahakari Dudh Utpadak Sangh Limited , respondent no.2 herein (hereinafter referred to as the Dairy for short) vide complaint dated 03.11.2004 filed before the Office of Assistant Labour Commissioner, respondent no.1 herein. The said complaints were numbered as I.D. Cases No.247/2004 to 337/2004. In pursuance of the notice for conciliation issued by respondent no.1 herein, respondent no.2-Dairy appeared and filed Written Statement on 24.12.2004. Subsequently, respondent no.3 herein was joined as party-opponent in the aforesaid I.D. Cases in view of the plea taken by respondent no.2-Dairy that respondent no.3 was the Contractor of petitioner-workmen.
4. The respondent no.1-authority considered the issue and thereafter, declined to refer the dispute raised by the petitioner-workmen to the appropriate forum u/s.10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act for short) mainly on the ground that there does not exist any employer-employee relationship between the petitioner-workmen and respondent no.2-Dairy, vide impugned order dated 04.04.2005. The main contention raised by the petitioners is that the appropriate Government is not required to look into the merits of a dispute while considering the question as to whether reference should be made or not since the order making reference is an administrative act and not a judicial or quasi-judicial act.
5. Before we proceed further, it is relevant to note that only one petition, being the main matter in the present group of petitions, was filed challenging the impugned order dated 04.04.2005 though the order was passed in a group of cases being I.D. Cases No.247/2004 to 337/2004. Subsequently, one-page petitions came to be filed but, only in the year 2012 / 2013. The reason given by the petitioners behind the filing of the one-page petitions at a belated stage is that they were under the bona fide impression that the impugned common order dated 04.04.2005 could be challenged by filing one petition only. But, when oral objections were raised by the other side against non-filing of individual petitions for each workmen at the time when the matter was listed for final hearing, the one-page petitions came to be filed.
6. Mr. P.C. Chaudhary learned counsel appearing on behalf of the petitioners submitted that the appropriate Government is only entitled to form an opinion as to whether an industrial dispute exists or is apprehended while considering the question of making a reference u/s.10(1) of the ID Act. The appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis. Therefore, the impugned order passed by the respondent-authority refusing to refer the dispute to the competent forum u/s.10(1) of the ID Act on the ground that there does not exist any employer-employee relationship between the parties is illegal and without jurisdiction.
6.1 Mr. Chaudhary submitted that the other ground of refusal given by the respondent-authority is of acceptance of legal dues by the petitioner-workmen from the Contractor, respondent no.3 herein. It is submitted that the petitioner-workmen were appointed by respondent no.2-Dairy and were working under respondent no.2-Dairy itself. In order to avoid liability under the labour laws, respondent no.2-Dairy has created a bogus arrangement in the form of a dubious intermediary and has based its case on an contract agreement. It has been submitted that the function to decide whether the workmen are the employees of respondent no.2-Dairy and whether the contract agreement is sham or bogus is upon the competent forum and not upon respondent no.1-authority. By holding that there does not exist any employer-employee relationship between the workmen and respondent no.2-Dairy and also that the contract agreement is not sham, the respondent no.1-authority has acted in a quasi-judicial activity, which is against the provisions of the ID Act. Under Section 10 of the ID Act, the respondent no.1-authority is under the obligation to refer the dispute to the competent forum for adjudication and not to adjudicate the issue on its own. He, therefore, submitted that the impugned order passed by respondent no.1-authority deserves to be quashed and set aside.
6.3 Mr. Chaudhary drew my attention to the provisions of Section 12 of the ID Act pertaining to Duties of Conciliation Officers. He submitted that u/s.12(2) of the said Act, the Conciliation Officer is duty bound to investigate the dispute without any delay for the purpose of bringing about a settlement and that if no settlement is arrived at, then the Conciliation Officer has to send to the appropriate Government a failure report thereof u/s.12(4) of the said Act. In the present case, however, no such failure report has been send by the Conciliation Officer and straight-away, the impugned order came to be passed refusing to refer the dispute.
6.4 Mr. Chaudhary submitted that the respondent-authority has arrived at the conclusion by mainly relying upon a decision of this Court rendered in Special Civil Application No.3342/1999 decided on 25.06.2001. He submitted that the decision rendered in the above matter was challenged by way of filing Letters Patent Appeal No.1609/2005, which is pending. He, therefore, submitted that the impugned order passed by the respondent-authority is on the merits of the case, which is erroneous and contrary to the provisions of the ID Act.
6.5 Mr. Chaudhary has placed reliance upon the following decisions;
I. In Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others, AIR 1989 SC 1565, the Apex Court held that reference of industrial disputes u/s.10(1) of the ID Act is administrative function of the appropriate Government and that while considering the question whether reference should be made or not, the appropriate Government cannot delve into the merits of dispute and determine the lis itself.
II. In Indian Farmers Fertilizer Co-operative Limited v. Industrial Tribunal-1, Allahabad and others, 2002 (2) L.L.N. 368, the Apex Court observed in Para-5 as under;
5. Before us, the contentions urged before the High Court are reiterated. The learned counsel for the appellant urged that the Tribunal had travelled far beyond the scope of the reference inasmuch as the question referred to it was only limited as to whether the appellant had wrongly terminated the services of 88 workmen. The question whether 88 workmen were employees of the appellant was completely outside the scope of the reference. Even otherwise, the findings recorded by the Tribunal had been recorded ignoring completely the material evidence on record and in this context, the learned counsel relied upon the decision in Steel Authority of India v. V.S. Yadav [1987 (55) FLR 268]. The claim of the workmen has been that they have been employed by the appellant. When the stand of the appellant is that the workmen were not employees of the appellant but they were working under a contractor, necessarily the issue arose as to the nature of their employment inasmuch as the relief that would be granted to them would depend upon the same. In the circumstances, the nature of their employment, whether directly under the appellant or through the contractor, was necessarily to be decided. Even otherwise, a full reading of the reference would show that there was no indication that they had been employed by a contractor but their services had been terminated from the respective date shown against them and whether the same was justified or not. In such a case, when a question was raised that the workmen in question were not the employees of the appellant, necessarily the Tribunal had to go into the question whether they were the employees of the appellant or not. On due appreciation of evidence, the Tribunal came to the conclusion that they are the employees of the appellant and that finding of fact was based on evidence. In our opinion, the conclusion reached by the Tribunal could not be seriously assailed by the learned cousnel for the appellant. We find no justification, to interfere with the award as affirmed by the High Court.
III. In Thakor Nagjibhai Bhailal v. IPCL now amalgamated with Reliance Ind. Ltd. and others, 2011-II-LLJ-182 (Guj), the Apex Court in Paras 27, 35 & 39 observed as under;
27. In the present case, there is a disputed question of fact whether the workmen had withdrawn their offers for voluntary retirement prior to the order of acceptance of such voluntary retirement or prior to their relieving. The management has taken a plea that the circulars were displayed on the notice board on March 21, 2007, but also accepted that the letters of voluntary retirement were issued in the end of March, 2007. The management has also accepted that pursuant to the VRS on or about April 3, 2007, 455 persons were relieved and 7 persons were relieved on April 30, 2007 and 2 persons were relieved on May 31, 2007. Therefore, the question as to whether one or the other workmen had withdrawn their prayer for voluntary retirement prior to issuance of their relieving order or prior to their relieving is one of the questions which requires determination to adjudicate whether the relationship of employer and employees ceased because of the voluntary retirement or they were forcibly retired from the service amounting to retrenchment.
35. We have noticed that this Court cannot sit in appeal over a finding of the State. The determination of the question which requires examination of factual matters, for which material including oral evidence is required to be considered, such matter cannot be arrogated to by the State which will amount to adjudication of the question.
39. For the reasons aforesaid, the common judgment passed by the learned single Judge dated March 13, 2009 and the order dated April 11, 2008 passed by the Assistant Labour Commissioner & Conciliation Officer, Vadodara cannot be upheld and the same are accordingly set aside, and the cases are remitted with a direction to the respondent-State to refer the dispute under Section 10(1) of the I.D. Act to the competent Labour Court or the Tribunal. The reference to be couched in proper manner. It should be referred at an early date, preferably within two months from the date of receipt/production of a copy of this judgment.
7. Ms. Amita Shah learned AGP appearing on behalf of respondent no.1-authority submitted that though the respondent-authority had called for several particulars from the petitioners, no documents were supplied to prima facie prove that there existed employer-employee relationship between the petitioner-workmen and respondent no.2-Dairy. On the contrary, the respondent no.2-Dairy had produced material from which it transpired that the petitioners were the employees of respondent no.3-Contractor. Therefore, the respondent-authority has not committed any error warranting interference of this Court in this group of petitions.
8. Mr. KM Patel learned senior advocate appearing with Mr. SN Thakkar for respondent no.2-Dairy submitted that respondent no.2-Dairy is a co-operative Society engaged in the production of milk and milk products. For the purpose of carrying out its production activities, respondent no.2 had entered into an agreement dated 06.05.2004 with respondent no.3 for the supply of labour and the said agreement came to be terminated with effect from 18.09.2004. The Contractor had also paid the legal dues payable to its workers, including the petitioners. It was, therefore, submitted that the petitioners were never the employees of respondent no.2-Dairy.
8.1 Mr. Patel submitted that respondent no.2 had produced sufficient material to show that the petitioners were the employees of respondent no.3-Contractor and not of respondent no.2-Dairy. But, the petitioners had not produced any material regarding their status before the authority. Therefore, the respondent-authority was justified in passing the impugned order.
8.2 Mr. Patel further submitted that the authority below has been delegated with powers under Section 10 of the ID Act and in exercise of such powers, the authority has passed the impugned order, which is also a reasoned order. He also submitted that the matters also deserve to be rejected on the ground of delay, He, therefore, submitted that the present petitions deserve to be dismissed.
8.3 Mr. Patel has placed reliance upon the following decisions;
I. In Bombay Union of Journalists and others v. The State of Bombay and another, AIR 1964 SC 1617 (1), the following observations have been made by the Apex Court in Paras 6, 8 & 13;
6. ...It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question a to whether its powers to make a reference should be exercised under S.10(1) read with S.12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Govt. may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under S.10(1) and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 & 3, cannot be accepted.
8. Besides, in dealing with this contention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under S.10(1) read with S.12(5), the Court is not sitting in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under S.12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of S. 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make a reference, so that the reasons should stand public scrutiny; but that does not mean that a party challenging the validity of the Government s decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. If it appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign, that no doubt, may justify the claim for a writ of mandamus. But the argument that of the pleas raised by the appellants two have been considered and not the third, would not necessarily entitle the party to claim a writ under Art. 226.
13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narain s contention that a writ of mandamus should be issued against respondent no.1. A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent no.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of Section 25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F (c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S. 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S. 10(1) read with S. 12(5) clearly show that even where a breach of S. 25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government act honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala faide, that, of course, would be another matter; in such a case, a party would be entitled to move the High Court for a writ of mandamus.
II. In Prem Kakar v. State of Haryana and another, AIR 1976 SC 1474, the State Government, on receipt of the report of Conciliation Officer referred to in Section 12 (4), found that the petitioner was not a workman within the meaning of the Act and therefore, it was not a fit case for reference for adjudication. The Apex Court, therefore, held that the State could not be asked by a writ of mandamus to make a reference under Section 10(1).
III. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, (2000) 2 SCC 455, the following observations have been made by the Apex Court in Paras 6 & 7:
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 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 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 an 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 an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. 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 there being no industrial dispute existing or even apprehended. The purpose 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. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.
IV. In Secretary, Indian Tea Association v. Ajit Kumar Barat and others, (2000) 3 SCC 93, the Apex Court held that (i) forming an opinion as to whether the employee concerned was a workman, and (ii) whether an industrial dispute existed or was apprehended; are the prerequisites for making a reference under S. 10 of ID Act.
V. In Asst. Executive Engineer, Karnataka v. Shivalinga, (2002) 10 SCC 167, the Apex Court held that in cases where there is a serious dispute or doubt as to the employer-employee relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same and that in such circumstances, to make them available to a Labour Court or Industrial Tribunal to adjudicate the dispute appropriate will be impossible.
VI. In ANZ Grindlays Bank Ltd. v. Union of India and others, AIR 2006 SC 296, the Apex Court made the following observations in Paras 11 & 13;
11. A plain reading of the reference made by the Central Government would show that it does not refer to any dispute or apprehended dispute between the Bank and the Federation (second respondent). It does not refer to any demand or claim made by the Federation or alleged refusal thereof by the Bank. In such circumstances, it is not possible to hold that on account of the settlement dated 18.08.1996 arrived at between the Bank and the Association, any dispute or apprehended dispute has come into existence between the Bank and the Federation. The action of the Bank in asking for a receipt from those employees, who are not members of the Association but wanted to avail of the benefit of the settlement, again does not give rise to any kind of dispute between the Bank and the Federation. Thus, the reference made by the Central Government by the order dated 29.12.1997 for adjudication by the Industrial Tribunal is wholly redundant and uncalled for.
13. Mr. Bhat, learned counsel for the second respondent, has submitted that this Court should not interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision of the tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned counsel the writ petition is pre-mature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or in uncalled for. We are unable to accept the submission made. It is true that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making reference. However, this is not a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as no evidence is required to be considered for examining the issue raised.
VII. In Subhashbhai Bhanabhai Patel & others v. State of Gujarat and others, 2008 I CLR 345, the Division Bench of this Court held that if a workman ceased to be office-bearer of Union, then his dismissal / discharge does not require approval u/s.33(2)(b) of the Act.
VIII. In an unreported decision of this Court rendered in Special Civil Application No.3342/1999 dated 25.06.2001, the learned Single Judge observed in Paras 2 & 6 as under;
2. It appears from the record that the petitioner union had, by a letter dated 25.3.1997 addressed to the respondent No.2-employer, informed that all the workmen of that company had become members of the petitioner union and that it should be treated as a sole bargaining agent for all purposes. According to another letter dated 1.3.1997 (Annexure-D to the petition), a demand is raised for reinstatement of the workmen stating that approximately 29 employees were illegally discharged from service on 29.3.1997. The learned counsel for the petitioner could not explain as to whether such letters were served upon the management and how the demand in respect of terminations dated 29.3.1997 could be made by a letter dated 1.3.1997. The acknowledgment slips annexed with the petition to signify the service of letters to the employer contains name and address of altogether a different party. It further appears from the annexures to the petition that individual complaints as regards illegal termination of service were filed in the prescribed form on 5.11.1997 and a notice dated 19.11.1997 calling upon the parties to discuss the issue of referring the dispute was issued by the respondent No.1. It further appears from the impugned order that discussions were held by the Assistant Commissioner of Labour and oral and written submissions made by the parties were considered. The employer produced copies of muster rolls and wage registers in support of its contention that none of the applicants were employed by it. It appears that the applicants were called upon to produce the material showing that they were employed by the respondent company, but they failed to produce any evidence or material before the Assistant Commissioner of Labour. Thus, the original applicants having failed to produce any material despite sufficient opportunities having been given, the impugned order refusing to make a reference was made.
6. In the facts of the present case, the appropriate Government appears to have satisfied itself, after giving an opportunity of being heard to the petitioner, that the original applicants were not the workmen of the respondent company. It is not the case of the petitioner that no opportunity of hearing was given or that the material which was produced on behalf of the petitioner was not considered. Thus, in absence of any material whatsoever indicating the status of the original applicants, the Government was fully justified in forming an opinion that the original applicants were not workmen. Therefore, the impugned decision is in accordance with the law laid down by the Hon'ble Supreme Court in the aforesaid judgment.
9. Mr. GM Joshi learned counsel for respondent no.3 submitted that from the complaint, it is evident that there is no reference about respondent no.3-Contractor. Respondent no.3 has been wrongly dragged into this litigation. Therefore, the petition deserves to be dismissed qua respondent no.3.
10. Heard learned counsel for the respective parties. The impugned award was passed on 04.04.2005. The main matter being Special Civil Application No.17920/2005 was filed immediately after the impugned award was passed. However, the rest of the petitions came to be filed only in the year 2012 2013. In Special Civil Application No.17920/2005, relief has been claimed only in respect of one Reference Case. No averments have been made regarding the other Reference Cases. Therefore, even though amendment was granted and the petitioners were permitted to file one-page petitions, in my opinion, the subsequent petitions would be barred by limitation as the same have been filed after a period of more than seven years.
11. Here, it would be relevant to refer a few decisions of the Apex Court on the aspect of delay. In the case of Shiv Dass v. Union of India and others, AIR 2007 SC 1330, the Apex Court that if the petition is filed beyond a reasonable period, say three years, normally, the Court would reject the same or restrict the relief. Similarly, in the case of Rajendra Pratap Singh Yadav and others v. State of Uttar Pradesh and others, (2011) 7 SCC 743, the Apex Court held that once the seniority list is published, it cannot be disturbed at the behest of the person who chose not to challenge it for four years. In the case of C. Jacob v. Director of Geology and Mining and Another, (2008) SCC 115, the Apex Court held that where an employee reappears after two decades, he cannot be treated as having continued service nor can he be given benefit of qualifying service for pension. Similar view has been taken in the case of Eastern Coalfields Limited v. Dugal Kumar, (2008) 14 SCC 295.
12. In the present case, as stated herein above, all the petitions have been filed in the year 2012 2013 except the main matter. Therefore, in my opinion, all such petitions deserve to be dismissed on the ground of delay alone.
13. As regards Special Civil Application No.17920/2005 which has been filed challenging the impugned common award only qua Reference Case No.247/2004, it could be noticed that the authority has taken into consideration the factum of acceptance of the legal dues by the workman from respondent no.3-Contractor. The authority proceeded on the footing that the workman have not denied the factum of acceptance of legal dues by them from respondent no.3-Contractor and therefore, there is reason to believe that there does not exist any employer-employee relationship between the petitioner and respondent no.2-Dairy.
14. However, there is a disputed question of fact whether the workmen had actually received their legal dues and if not, then who is entitled to make such payment to them. It is well settled that this Court cannot sit in appeal over a finding of the State. However, the determination of the question, which requires examination of factual matters, for which material, including oral evidence is required to be considered, cannot be arrogated to by the State, which will amount to adjudication of the question. By making such observations in the impugned order, I am of the view that the authority has entered into the merits of the case, which is not permitted under the ID Act. Moreover, no failure report is on record. Therefore, considering the principle rendered by the Apex Court on the law on the subject, I am of the opinion that the impugned order is required to be quashed for the purpose of reconsideration by the authority afresh.
15. For the foregoing reasons, Special Civil Application No.17920/2005 is allowed. The impugned order dated 04.04.2005 is quashed and set aside only I.D. Case No.247/2004 and the authority below is directed to reconsider the issue u/s.10 of the ID Act and to render a reasoned order afresh, after permitting both the sides to produce necessary evidence on record, including such documents which have been produced on record before this Court.
15.1 It is made clear that this Court has not expressed any opinion on merits and therefore, the authority shall decide the issue being uninfluenced by the observations made in this judgment. Rule is made absolute to the above extent with no order as to costs. The rest of the petitions are dismissed. Rule is discharged qua such petitions.
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