Allahabad High Court
State Of U.P. And Another vs Rajesh Kumar Awasthi And Another on 13 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 102, (2020) 2 ADJ 126 (ALL)
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - C No. - 39723 of 2017 Petitioner :- State Of U.P. And Another Respondent :- Rajesh Kumar Awasthi And Another Counsel for Petitioner :- Sanjay Kumar Singh,S.C. Counsel for Respondent :- Kamal Nayan Shukla Hon'ble Manoj Kumar Gupta,J.
Case called out in revised list. Learned Standing Counsel Sri Shree Prakash Singh is present on behalf of the petitioners. No one is present on behalf of the respondents.
The petitioners have challenged the award dated 21.9.2016 passed by Industrial Tribunal (respondent No.2) in Adjudication Case No.7 of 2011 in a reference made under Section 4-K of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The Reference was to the following effect :-
Whether the termination of service of Rajesh Kumar Awasthi son of Virendra Kumar Awasthi on 1.6.1990 by the employer was proper and valid. If not, to what relief the workman is entitled to and with what description?
The case of respondent No.1 was that he was appointed on the post of Assistant Pairokar in the department on 1.11.1985. He continuously worked since then. Abruptly, his service was terminated on 1.6.1990 without complying with the requirements of Section 6-N of the Act. The petitioners filed their written statement and categorically pleaded that there was no post of Assistant Pairokar in the department. Respondent No.1 was engaged as daily wager for doing pairvi of court cases. On direction of the then Director, the department stopped taking work from him since 1.6.1990. As he was engaged as daily wager having regard to exigency of work, therefore there is neither termination of service of respondent No.1 nor any question of non compliance of Section 6-N of the Act. The reference made to the Tribunal is bad in law and liable to be dismissed.
The record reveals that respondent No.1 had filed two writ petitions before this Court. The first writ petition bearing No.17783 of 1990 was filed by petitioner challenging the order dated 1.6.1990, by which the respondents stopped taking work from the petitioner. The writ petition was dismissed by order dated 21.4.1992 on the ground that the petitioner was only a daily wager. However the representation made by him dated 25.6.1990 was directed to be disposed of within a month. It seems that in compliance of the said direction, the representation of the petitioner was decided by the department on 26.4.1993 and the same was rejected. The request made for re-employment was turned down. The petitioner again approached this Court by way of Writ Petition No.16680 of 1988. It was dismissed on 14.2.2006 on the ground that it was a second writ petition for the same relief and thus not maintainable. The petitioner moved an application on 29.9.2009 seeking reference of dispute under the Act. The dispute raised by the petitioner was referred for adjudication to the Tribunal on 24.12.2010.
The Tribunal after considering respective case of the parties accepted the case of the petitioners that there was no post of Assistant Pairokar in the department and that engagement of respondent No.1 was only as a daily wager. It was further held that though respondent No.1 worked as a daily wager, but he was paid salary on monthly basis. He worked continuously from 1985 to 31.5.1990. However, without examining whether respondent No.1 had actually worked for 240 days in twelve calender month preceding termination of service, it was held that there was violation of Section 6-N of the Act. Thereafter, the Tribunal proceeded to consider the issue as to the relief to which respondent No.1 was entitled to. The Tribunal held that the dispute was raised in the year 2010, although service was terminated on 1.6.1990. After such long interval, it would not be proper to direct his reinstatement or grant back wages. Instead, it awarded a lumpsum compensation of Rs.1,50,000/-.
Learned counsel for the petitioners submitted that since the service of respondent No.1 was allegedly terminated on 1.6.1990 and the reference was sought in the year 2009, it was apparently a stale claim and ought not to have been entertained. In support of his case, he has placed reliance on judgements of the Supreme Court in Chief Engineer, Ranjit Sagar Dam and others vs. Sham Lal, AIR 2006 SC 2682, and Prabhakar vs. Joint Director Sericulture Department and another, AIR 2016 SC 2984 and judgement of this Court in State of U.P. vs. Presiding Officer Labour Court and another (Writ-C No.50174 of 2016) decided on 14.11.2019. He further submitted that there is no clear cut finding that respondent No.1 had worked continuously for more than 240 days in twelve calender months preceding his termination from service. Consequently, the findings rendered by the Tribunal that there is violation of Section 6-N of the Act is not sustainable in law.
It is not in dispute that alleged termination of service was on 1.6.1990. The application seeking reference was filed on 29.9.2009. The reference order is dated 24.12.2010. Undoubtedly, there was delay of 19 years in seeking reference and 20 years if the period is reckoned from the date reference was made. During this period, respondent No.1 had filed two writ petitions before this Court as narrated above, but both of which were dismissed. The first writ petition was dismissed on 21.4.1992 followed by order of the department dated 26.9.1993 rejecting the representation of respondent No.1. The petitioner filed second writ petition in the year 1998 i.e., after more than five years. The said writ petition was also dismissed being for the same relief. Respondent No.1 again kept quite for three years and once again re-agitated the issue in the year 2009 followed by reference in the year 2010. Evidently, there was inordinate delay on part of respondent no.1 in seeking the reference.
In Chief Engineer, Ranjit Sagar Dam (supra), the Supreme Court placed reliance on Para 6 of its earlier judgement in Nedungadi Bank Ltd. vs. K.P. Madhavankutty,(2006) I LLJ 561 SC and others, which is as follows :-
""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."
(emphasis supplied) In the said judgement, the Supreme Court has also referred to another judgement in Ratan Chandra Sammanta and others vs. Union of India and others, 1993 (II) LLJ 676 SC wherein it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself.
In Prabhakar (supra), the Supreme Court, after considering various aspects resulting from delay in seeking reference, summarised the legal position thus :-
"42. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the 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 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 employer's financial arrangement and to avoid dislocation of an industry."
(emphasis supplied) The decision of this Court in State of U.P. vs. Presiding Officer (supra) cited by learned standing counsel holds that in case the termination was made in the year 1991 and reference in the year 2014, it cannot be said to be in respect of any live dispute.
Having regard to the legal principles enunciated by the Supreme Court in various decisions discussed above, the inescapable conclusion is that the reference made in the year 2010 with regard to alleged termination of respondent No.1 on 1.6.1990 was a stale one and made at a point of time when practically no dispute fit for adjudication could be said to be in existence. The consistent stand of the petitioners, since they stopped taking work from the respondent, had been that he could not be reengaged as there is no post of Assistant Pairokar nor his service was required otherwise. It was not a case where at any stage any assurance was extended to him even for re-consideration of his case for re-engagement. In such situation, even filing of two writ petitions before this Court, last of which stood dismissed on the ground that it was a second petition for the same cause of action, is not sufficient to infer that the respondent had been bonafidely pursuing the remedies. As noted above, the second writ was dismissed in 2006 itself, but again the respondent did not immediately sought reference but again waited for three years and filed the application in the year 2009.
It would be worthwhile to allude to an example cited by Supreme Court in Prabhakar (supra) to explain the concept as to when delay would be fatal, rendering the claim 'dead' and when not. To wit :-
"Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of this demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the management and acquiesced into the said rejection."
The inordinate delay and latches, in the instant case, had rendered the claim 'dead'. It was not a case where the claim remained alive but was raised with delay. Therefore, the principle of moulding relief, where the Tribunal is approached with delay, but in respect a 'live claim' would not apply to the facts of the instant case. The reference itself was invalid.
Moreover, in the impugned award, there is no clear cut finding that respondent No.1 had worked for 240 days in twelve calendar months preceding the termination of his service. The Tribunal had merely observed that there is evidence to show that respondent No.1 had worked as daily wager continuously between November 1985 to 31.5.1990. The Tribunal thereafter referred to Section 6-N and then jumped to the conclusion that there is violation of the said provision. On this ground also the impugned award cannot be sustained in law.
In consequence and as a result of discussion made above, the impugned award dated 21.9.2016 is quashed. The petition is allowed. However, in case any payment has already been made to respondent No.1 in pursuance of interim order of this Court, it shall not be recovered.
Order Date :- 13.1.2020 skv (Manoj Kumar Gupta, J.)