Bombay High Court
Executive Engineer vs // on 1 August, 2014
Author: A.P.Bhangale
Bench: A.P.Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5401 OF 2006
Executive Engineer,
Public Works Division,
Wardha. .......... PETITIONER
// VERSUS //
Mahadeo Govindrao Narayane,
Post Walgaon (Nipani),
Tah. and Distt. Wardha. .......... RESPONDENT
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Mr.M.K.Pathan, A.G.P. for the Petitioner.
Mr.S.A.Kalbande, Adv. for the Respondent.
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Date of reserving the Judgment : 19.6.2014.
Date of pronouncing the Judgment : 1.8.2014.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. Heard the learned Counsel for the respective parties.
2. The petitioner has questioned legality of the Judgment and Award, dated 9.6.2005 passed by the Labour Court, Wardha in Reference (IDA) No. 42 of 1996 whereby the respondent was directed to be reinstated to his former post with continuity of service. The Reference was answered in the affirmative declaring that the petitioner had illegally terminated the services of the respondent with effect from 1.4.1986. The respondent had raised dispute before the Labour Court, Wardha about the unfair labour practice by the petitioner of illegally terminating the services of the respondent, claiming reinstatement and back wages. On failure of the reconciliation proceedings, ::: Downloaded on - 02/08/2014 23:50:00 ::: 3 wp5401.06.odt the dispute was referred to adjudication by the Labour Court, Nagpur.
3. The respondent was employed with effect from 1.8.1981, was on the muster roll and was getting the fixed salary of Rs. 560/- per month, paid monthly at working site at Iron Bridge situated over the rail route, Wardha. The respondent also worked at Waigaon and Deoli and was on the muster roll, within the jurisdiction of the Executive Engineer, P.W.D., Wardha.
4. The contention raised on behalf of the petitioner is that there was unexplained delay of 10 years amounting to laches on the part of the respondent in approaching the Conciliation Officer for redressal of his grievance in the year 1996 and that the overstale claim should not have been entertained. It is contended that the burden of proof to establish that he had worked continuously for the period of more than 240 days was on the workman concerned.
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5. The legal position canvassed at the bar may be discussed now. In Shalimar Works Limited v. Their Workmen reported in AIR 1959 SC 1217, the Apex Court in Para 13 has observed thus :
"13. ...We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under Section 33-A in this case; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to make. In addition, the reference in this case was vague inasmuch as the names of 250 workmen to be reinstated were not sent to the Industrial Tribunal and no list of these men was given to it till practically after the whole proceeding was over."
6. In the case of Nedungadi Bank Ltd. v. K.P. Madhavankutty reported in 2000 I LLJ 561, the Hon'ble Supreme Court in para 6 has held thus :
"6. Law does not prescribe any time limit for the appropriate Government to exercise its powers under ::: Downloaded on - 02/08/2014 23:50:00 ::: 5 wp5401.06.odt 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...."
7. In Assistant Executive Engineer, Karnataka vs. Sri Shivalinga reported in CLR 321 = (2002) 10 SCC 167, the Apex Court has held thus :
"6. Learned Counsel for the appellant strongly relied on the reasoning of the Labour Court and contended that the view of the High Court would not advance the cause of justice. Learned Counsel for the respondent relied upon two decisions of this Court in Ajaib Singh v. The Sir hind Co-operative Marketing cum Processing Service Society Ltd. and Anr. 1999 I CLR 1194 SC : 1999 AIR SCW 1051 and in Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. 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 the 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, ::: Downloaded on - 02/08/2014 23:50:00 ::: 6 wp5401.06.odt 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 the nature would render the claim to have become stale. That is exactly the situation arising in this case. In that view of the matter, we think two decisions relied upon by the learned Counsel have no application to the case on hand. Proceeding on the facts of the case, we think the High Court is wrong in having interfered with the award made by the Tribunal. The order made by the High Court in writ proceedings, therefore, shall stand set aside and the award made by the Labour Court shall stand restored. The appeal is allowed accordingly."
8. In Secretary, Indian Tea Association vs. Ajit Kumar Barat reported in 2000 I CLR 625, the Apex Court in para 6 has held thus:
"6. In Sultan Singh v. State of Haryana and Anr. , this Court held that an order issued under Section 10 of the Act is an administrative order and the Government is entitled to go into the question whether industrial dispute exists or is apprehended and it will be only a subjective satisfaction on the basis of material on record and being an administrative order no lis is involved."::: Downloaded on - 02/08/2014 23:50:00 :::
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9. This law on the point may be summarized as follows:
a) The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself in the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended and if such a reference is made, it is legitimate expectation from the government wherever possible to indicate the nature of dispute in the order of reference;
b) The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi -judicial one and the court, therefore, cannot sit as if appellate Court so as to examine the order of the reference meticulously to find out if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial order;::: Downloaded on - 02/08/2014 23:50:00 :::
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c) An order made by the appropriate government under Section 10 of the Act being an administrative order, no lis is involved as such an order is made on the subjective satisfaction of the Government;
d) If it appears from the reasons given that the appropriate government took into account any consideration irrelevant or foreign material, then the High court may in a given case consider the case for a writ of mandamus and;
e) It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Industrial Dispute Act.
10. In Haryana State Co-op. Land Development Bank vs. Neelam reported in 2005 II CLR 45, the Apex Court has held in para 18 thus:
"18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an ::: Downloaded on - 02/08/2014 23:50:00 ::: 9 wp5401.06.odt appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman out of the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the Industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10-8-1988."
11. In the case of Regional Manager, S.B.I. vs. Rakesh Kumar Tewari reported in 2006 I CLR 395, the Apex Court in para 23 has held thus:
"23. In directing reinstatement, neither the High Court nor the tribunal had considered that the order might affect the interest of those others who were employed after the respondent. As was said in Central Bank of India v. S. Satyam 1996 II CLR 1095 SC. The other persons employed in the industry during the intervening period of several years have not been impleaded. Third party interests have arisen during the interregnum. These third parties are also workmen employed in the industry during the intervening period of several years. Grant of relief to the writ petitioners (respondents herein) may result in displacement of those other workmen, who have not been impleaded in these proceedings, if the respondents have any claim for re-employment."::: Downloaded on - 02/08/2014 23:50:00 :::
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12. In D.G.M. Oil & Natural Gas Corporation Ltd. v. Ilias Abdulrehman reported in 2005 LLR 235, in the facts of the said case, the Apex Court has observed thus :
"...Therefore, not providing a continuous job to the respondent-workman by the appellant did not offend Article 25F of the Act and did not really amount to an unfair labour practice."
13. In Manager (Now Regional Director) R.B.I. vs. Gopinath Sharma reported in 2006 III LLJ 492, the Apex Court in paragraphs 21 and 22 has held thus:
"21. This case, in turn, refers to the judgments in Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. and S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka . This Court held that even though there is no limitation prescribed for reference of disputes to an Industrial Tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen. This Court has held that a delay of four years in raising the dispute after even re-employment of most of the old workmen was held to be fatal. In Nedungandi Bank Ltd.'s case (supra) this Court held a delay of ::: Downloaded on - 02/08/2014 23:50:00 ::: 11 wp5401.06.odt seven years to be fatal and disentitled the workmen to any relief.
22. In our opinion, a dispute which is stale could not be a subject matter of reference."
14. In State of Madras vs. C.P. Sarathy reported in 1953 I LLJ 174 (SC), a Five-Judge Bench of the Apex Court has observed thus :
"...Indeed, this notion that a reference to a tribunal under the Act must specify the particular disputes appears to have been derived from the analogy of an ordinary arbitration. For instance, in Ramayya Pantulu v. Kutty & Rao (Engineers) Ltd. it is observed that if a dispute is to be referred to a tribunal the nature of the dispute must be set out just as it would if a reference were made to an arbitrator in a civil dispute. The tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it.
15. The analogy is somewhat misleading. The scope of adjudication by a Tribunal under the Act is much wider as pointed out in the Western India Automobile Association's case and it would, involve no hardship if the reference also is made in wider terms provided. Of course, the dispute is one ::: Downloaded on - 02/08/2014 23:50:00 ::: 12 wp5401.06.odt of the kind described in Section 2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of Government are indicated either individually or collectively with reasonable clearness."
16. In the case of Niemla Textile Finishing Mils Ltd. vs. Second Punjab Tribunal reported in 1957 I LLJ 460 (SC), the Apex Court has observed thus :
"...it is clear that Section 10 is not discriminatory in its ambit and the appropriate Government is at liberty as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation. No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same. There cannot be any classification and the reference to one or the other of the authorities has necessarily got to be determined in the exercise of its best discretion by the appropriate Government."::: Downloaded on - 02/08/2014 23:50:00 :::
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17. In Guest, Keen, Williams (Private) Ltd. vs. Sterling (P.J.) and Ors. 1959 reported in II LLJ 405, the Apex court has held thus:
"In dealing with industrial disputes the application of technical legal principles should as far as is reasonably possible be avoided. An industrial dispute has to be raised by the union before it can be referred; and it is not unlikely that the union may not be persuaded to raise a dispute though the grievance of a particular workman or a number of workmen may otherwise be well founded; then again, even if the union takes up a dispute, the State Government may or may not refer it to the industrial tribunal. The discretion of the State Government under Section 10 of the Industrial Disputes Act is very wide. Thus, workmen affected by standing orders may not always and in every case succeed in obtaining a reference to the industrial tribunal on the relevant points. That is why 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."::: Downloaded on - 02/08/2014 23:50:00 :::
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18. In the case of Ram Avtar Sharma vs. State of Haryana reported in 1985 II LLJ 187 (SC), the Apex Court in para 6 has held thus:
"6. Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that in an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of power of judicial review."
19. In the case of Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar reported in 1989 II LLJ 558 (SC), the Apex Court in paragraph 13 has held thus :
::: Downloaded on - 02/08/2014 23:50:00 :::15 wp5401.06.odt "13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. Sate of Haryana 1985 II LLJ 187;
M.P. Irrigation Karamchari Sangh v. State of M.P. 1985 I LLJ 519, Shambu Nath Goyal v. Bank of Baroda, Jullundur, 1978 I LLJ 484."
20. In the case of Ajaib Singh vs. Sirhind Co-op.
Marketing-cum-Processing Service Society Limited reported in 1999 I LLJ 1260 (SC), the Apex Court has held thus :
"The object of the Act, therefore, is to give succour to weaker sections of the society which is a pre-requisite for a Welfare State. To ensure industrial peace and pre-empt industrial tension, the Act further aims at enhancing the industrial production which is acknowledged to be life- blood of a developing society. The Act provides a machinery for investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised Courts which are not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and adjudication as ::: Downloaded on - 02/08/2014 23:50:00 ::: 16 wp5401.06.odt per the need of the society keeping in view the fast changing social norms of the developing country like India. It appears to us that the High Court has adopted an unusual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act."
21. In the case of Sapan Kumar Pandit vs. U.P. State Electricity Board reported in 2001 SCC (L & S) 946, the Apex Court in paragraphs 9 and 13 has held thus :
"9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed on the possibility of what another party would think, whether any dispute existed or not. 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 Governed, there existed such a dispute."::: Downloaded on - 02/08/2014 23:50:00 :::
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22. Having considered the submissions of the learned Counsel appearing for the respective parties and having perused the case laws cited before us, crux of the observations appears that a dispute which is stale could not be the subject-matter of reference under Section 10 of the Industrial Disputes Act. However, as to when a dispute can be said to be stale would depend on the facts and circumstances of each case.
23. The question raised is as to whether the Labour Court was justified to entertain the stale claim delayed by 10 years.
Whether the Award was correct inasmuch as the Labour Court had put the burden upon the employer to prove that the employee was engaged by them for the period of 240 days.
24. According to the respondent, his services were illegally terminated by the oral order and though he had completed continuous service for 240 days, he was not paid one month salary or pay in lieu of that. Thus, Section 25 -F ::: Downloaded on - 02/08/2014 23:50:00 ::: 18 wp5401.06.odt of the Industrial Disputes Act was contravened. The respondent, therefore, claimed reinstatement with full back wages. It is contended on behalf of the petitioner that manual record of casual labourers is not retained beyond a period of 5 years and therefore, it is difficult for the petitioner to verify the claim of the respondent/employee.
25. The Labour Court has held that termination of the respondent's services was illegal and granted the benefit of reinstatement to the former post with continuity of service. It is contention on behalf of the petitioner that reference was made after unexplained long delay of more than 10 years and the Labour Court erred to entertain the stale claim. The petitioner has failed to produce the record the employment as well as seniority list for the relevant period in respect of the respondent on the ground that the record for more than five years is not maintained. It is submitted that the Labour Court ought to have appreciated the evidence of witness for the petitioner in the trial Court that the name of the ::: Downloaded on - 02/08/2014 23:50:00 ::: 19 wp5401.06.odt respondent was not recommended from the Employment Exchange Officer.
26. The Industrial Disputes Act does not prescribe the period of limitation for raising the dispute under the provisions of the Act, but it is essential that it must not end in inequitable results. It is open for the Labour Court to decline relief if the workman has been negligent and cannot offer reasonable explanation for the delay caused in raising the dispute. Delay need to be satisfactorily explained by the workman at whose instance the reference is made. If relief of reinstatement with full back wages is granted in favour of the dormant and lethargic workman who slept over his rights for a long time, it would result in miscarriage of justice.
27. At the same time, it must be borne in mind - in view of the ruling in the case of Mahavirsingh vs. State of U.P State electricity Board & Others reported in 1999 (82) FLR 169 that when termination of the workman is held to be ::: Downloaded on - 02/08/2014 23:50:00 ::: 20 wp5401.06.odt illegal, the whole reference ought not to be rejected merely on the ground of delay, otherwise it would lead to inequitable result. Hence the Labour Court had, considering the facts and circumstances of the case in hand, granted the benefit of reinstatement to his former post with continuity of service.
28. In the facts and circumstance, when demand notice was sent on 31.3.1997 (Exh.13), the respondent had also filed the case for conciliation before the Conciliation Officer and the muster roll was demanded regarding the tenure of respondent's service. Notice to produce documents was not replied. The petitioner contended that the record of the respondent/employee was not retained by the employer including the seniority record of the relevant period, hence an adverse inference could be raised against the employer.
There was no evidence to believe that the respondent was a daily rated employee and was not appointed against any post and considering the principle stated above, the relief of reinstatement with continuity of service was awarded;
::: Downloaded on - 02/08/2014 23:50:00 :::21 wp5401.06.odt however, back wages was rightly refused. The principle of "no work no pay" is attracted. The impugned Award passed by the Labour Court is well reasoned and balanced one and need no interference in exercise of the extra-ordinary writ jurisdiction. Hence, the Writ Petition is found without merits and it is dismissed with costs.
ig JUDGE
jaiswal
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