Orissa High Court
The Management Of Orissa Khadi And ... vs Their Workman Shri G.B. Dhal And Ors. on 26 July, 1989
Equivalent citations: (1990)ILLJ224ORI
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. This is an application by the employer for judicial review by grant of a writ of certiorari of an award passed by the Labour Court in Industrial Disputes Case No. 68 of 1977 under reference made by the State Government under Section 12(5) read with Section 10(1)(d) of the Industrial Disputes Act, 1947 of the following question:-
"Whether the retrenchment of Sri. G.B. Dhal, Bee-keeping Supervisor, by the management of Orissa Khadi and Village Industries Board, Bhubaneswar, with effect from 9th September 1968 is legal and/or justified? If not, to what relief Shri Dhal is entitled?"
2. Sri Dhal, opposite party No. 1, was appointed on 20th November, 1962 as a Beekeeping Supervisor. Though initially the appointment was for six months on trial basis, the same was extended from time to time and was regularised with effect from 22nd February 1965. By resolution of the Orissa Legislative Assembly dated 12th March 1968, the Orissa Khadi and Village Industries Board was dissolved and the management vested in the Industries Department of the Government. On 9th September, 1968 the service of opposite party No. 1 was terminated on account of dissolution and closure of the establishment. In October, 1968, opposite party No. 1 was appointed as a Circle Inspector. This was a post borne in a lower cadre and was equivalent to a post of Junior Fieldman which was held by opposite party No. 1 prior to his appointment as Supervisor on 20th November 1962. For six months opposite party No. 1 continued in the said post but relinquished the same in March, 1969. In 1970, opposite party No. 1 initiated a proceeding under Section 33C(2) of the Industrial Disputes Act before the Labour Court for determination of retrenchment compensation. By order dated 31st March 1971 the Labour Court quantified the compensation payable at Rs. 1578/- . In October, 1977, the Government made reference of the question, as aforesaid. The Labour Court passed an award directing reinstatement of opposite party No. 1 with full back wages and service benefits. The period of six months for which opposite party No. 1 worked as Circle Inspector was directed to be excluded from the period for which back wages were to be paid. A copy of the award has been annexed as Annexure-4.
3. Aggrieved by the award, the management has filed this writ application. In substance two questions have been raised, firstly, opposite party No. 1 having accepted the alternative appointment and having initiated a proceeding under Section 33C(2) of the I.D. Act, he had acquiesced in the action of the employer-management arid was estopped from challenging the same, and secondly, the Labour Court should have declined to exercise jurisdiction when the proceeding was initiated after nine years. The Labour Court negatived both the contentions.
4. The self-same contentions were reiterated before this Court by Mr. Jagannath Das, the learned counsel for the employer.
Mr. S.B. Nanda, the learned counsel for the workman has contended that acceptance of employment as Circle Inspector was not in condonation of the action taken by the management nor is the workman estopped from seeking the relief because he initiated a proceeding under Section 33C(2) of the I.D. Act.
5. The management, no doubt, was on a higher bargaining platform. Therefore, acceptance of a lower post-a post which the workman had held prior to his promotion to the post of Bee-keeping Supervisor-cannot be treated as acquiescence. Even acceptance of an equivalent post, when the workman is without employment and is in need of making out a living, would not amount to condonation of the illegality, if any, committed by the employer. Nor would such acceptance extinguish his right under the law. Rather the conduct of the workman contemporaneously and subsequent to his such acceptance militated against the proposition of acquiescence. Acceptance of the job was with a view to keeping the wolf from the door.
6. Initiation of proceeding under Section 33C(2) could not extinguish his right to have a declaration that the retrenchment was illegal. It has been observed in G.K.W. Private Limited v. P.J. Sterling and Ors. , (1959- II-LLJ-405) as follows (p 412):-
".. .the tribunals should be slow and circumspect in applying the technical principles of acquiescence and estoppel in the adjudication of industrial disputes. If a dispute is raised after a considerable delay which is not reasonably explained, the tribunal would undoubtedly take that fact into account in dealing with the merits of the dispute. But unless the relevant facts clearly justify such a course, it would be inexpedient to throw out the reference on preliminary technical objections of the kind raised by the appellant under the present contention..."
It has been held in Workmen of The Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co.Ltd., (1974-I-LLJ-499) as follows (p 500):-
"... Extremely technical considerations, usually invoked in civil proceedings, may not be allowed to outweigh substantial Justice to , the parties in an industrial adjudication."
Besides, no step was taken by the management to bring before the Labour Court the petition filed by the workman with a view to showing the stand taken by him. That would have shown if the workman had sought relief under Section 33C(2) of the Industrial Disputes Act in full satisfaction of his claim or by abandoning his right to seek a declaration that the retrenchment was illegal. The Labour Court has taken note of the said fact. It has also taken note of the fact that though the retrenchment compensation was quantified, no step was taken for payment thereof nor has the workman received the same. The Labour Court has in paragraphs 14 and 15 has considered the question as to whether the retrenchment of the workman was illegal and has given cogent reason for its view. We see no ground to differ from them. Besides the decision of the Labour Court has not been assailed seriously on that score.
7. The next question is if the Labour Court should have refused to exercise jurisdiction on ground of delay. It has been contended that the termination of the petitioner's service was in September 1968, but the reference was received in 1977. Hence, there is delay of nine years which has not been explained. There is misconception in the aforesaid submission. The date of raising the dispute is not the date of the reference by the Govt. 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 long time 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. Neither party has placed before us with specificity as to when the conciliation proceeding commenced and the date of submission of failure report. That would have thrown some light. But knowing, as we do, that conciliation proceeding consumes some time and the Government take sometimes long time in taking a decision, we do not accept the contention of the petitioner-management that the Labour Court should have declined to exercise jurisdiction. However, that will be a factor in the determination of back wages to which the workman would be entitled to.
8. The petitioner has been reinstated in employment pursuant to the award of the Labour Court. Therefore, while upholding the award of the Labour Court directing reinstatement of opposite party No. 1-workman, we hold that the workman would not be entitled to back wages for the entire period. Taking all aspects into account, we direct that the workman opposite party No. 1 shall be entitled to back wages from January, 1977 The writ application is dismissed with the aforesaid modification as to back wages. There would be no order as to costs.
V. Gopalaswamy, J.
9. I agree.