Allahabad High Court
Executive Engineer E.Dist. Division ... vs Presiding Officer Labour Court And 2 ... on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1628, 2020 (1) ALJ 721 (2019) 12 ADJ 554 (ALL), (2019) 12 ADJ 554 (ALL)
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Reserved AFR Case :- WRIT - C No. - 48556 of 2014 Petitioner :- Executive Engineer E.Dist. Division And 2 Others Respondent :- Presiding Officer Labour Court And 2 Others Counsel for Petitioner :- Ms. Usha Kiran Counsel for Respondent :- C.S.C.,A.B. Vidyarthi,Dilip Kumar Yadav,R.B.Vidhtarthi Hon'ble J.J. Munir,J.
1. The Chairman of the U.P. Power Corporation Limited and two of its Executive Engineers have petitioned this Court under Article 226 of the Constitution seeking to quash an award, dated 25.09.2013 (published on 15.04.2014) made in Adjudication Case No.57 of 2011, between these petitioners and their workman, Mohd. Abrar, respondent no.2. The said award that is hereinafter referred to as the 'impugned award', has declared termination of services of Mohd. Abrar, respondent no.2, by the petitioners illegal with a further direction to reinstate the second respondent with continuity of service and back wages.
2. Heard Ms. Usha Kiran, learned counsel for the petitioners and Sri Dilip Kumar Yadav, learned counsel appearing for the workman-respondent no.2.
3. For the facility of reference, the three petitioners shall be hereinafter called the 'employers', whereas respondent no.2, Mohd. Abrar shall be referred to as the 'workman'.
4. It is the employers' case that they were earlier organized and called the U.P. State Electricity Board and are now known as the U.P. State Power Corporation. The employers owe their present altered legal existence to a notification dated 14.01.2000, issued under Section 13 of the U.P. Electricity Reforms Act. It is the further case of the employers that the workman raised an industrial dispute by moving the Deputy Labour Commissioner, Moradabad through an application under Section 2-A of the U.P. Industrial Disputes Act, 1947 (for short the 'Act'). On the basis of the said application, the Deputy Labour Commissioner, Moradabad Region, Moradabad made a reference under Section 2-K of the Act, in the following terms (translated into english from hindi vernacular):
"Whether the act of the employers in terminating the services of their workman Mohd. Abrar S/o Gulzar Ali, Class IV employee/lineman with effect from 31.03.1990 is proper and lawful? If not, to what benefit/ relief is the workman entitled, and with what particulars?"
5. On the basis of the aforesaid reference Adjudication Case No.57 of 2011 was registered on the file of the Presiding Officer, Labour Court, U.P. Rampur between employers and the workman. It is common ground between parties that before the Labour Court, both sides put in their written statements and rejoinder statements. Also, that the employer and the workman led their respective evidence, both documentary and oral.
6. The workman's case is to the effect that he was retained as a Lineman by the former U.P. State Electricity Board from 01.01.1978 to 31.05.1978. As a workman borne on the muster roll, his services during the said period were satisfactory. He was retained, as aforesaid, by the employers in the Electricity Distribution Division, Chandausi, District Moradabad. He was detailed to duty at the Electricity Distribution Sub Division-II, Bilari, District Moradabad. It is then said by the Workman that from 01.04.1989 to 30.3.1990, he again served the employers as a Lineman in the Electricity Distribution Division-III. The workman has put in 240 days during every year and more of continuous and regular work. The employers without adhering to requirements of service of notice mandatory under the law, have removed him from service with effect from 31.3.1990. It is further claimed by the workman that he has put in a total of 609 days with the employers as a Lineman.
7. It is the workman's further case that other workmen, junior to him, are still in service with the employers. He has substantiated the last plea with particulars, nominating those junior workmen retained in service as: (1) Madhurendra Singh son of Sri Layak Singh, (2) Indrabhan Singh son of Sri Chandrabhan Singh, (3) Atul Babu son of Sri Ramesh Chandra, besides others. It is also asserted that the above named workmen have been retained in service, though juniors to the workman, by an Office Memo No. 4399/S-1 O.P., dated 17.08.2004 but the workman was not offered opportunity to join. To the contrary, the workman was informed through a letter dated 02.05.1999, issued by the employers that there was a ban on regular employment, and, that whenever the restriction, as aforesaid, is lifted, he would be taken back in. It is also said that despite a lapse of a period of 12 years, he has not received any information from the employers or has he been called back to work. It is also pleaded that the petitioner had filed a Special Appeal before this Court (presumably after losing his writ petition before the learned Single Judge), where this Court, vide judgment and order dated 30.11.2010, is said to have observed that it is open to the workman that like other workmen, similarly situate, he may also approach the Labour Court. It is thus, according to that course of action left open to him by this Court, by the judgment rendered in Special Appeal aforesaid, that the petitioner has raised the present industrial dispute, asking for reinstatement together with all consequential benefits.
8. The employers contested the aforesaid claim by filing their written statement before the Labour Court. A copy of their written statement is on record as Annexure no. 2 to this petition. The stand of the employers is that the former U.P. State Electricity Board through their B.O. No.147-G/ SC-10-1979, dated 17.01.1979 had prohibited engagement of employees in their establishment, borne on the muster roll. There were further clear instructions carried in the aforesaid Board Order, that services of all muster roll employees be dispensed with and a seniority list of all such retrenched workmen be drawn up. It was pleaded that this ban was still in force and has not been withdrawn by any subsequent order of the employers.
9. It is the further case of the employers that upon an inspection of all available records, including the seniority list and other records, relating to muster roll employees/workmen, did not show that any workman going by the name of Mohd. Abrar son of Gulzar Ali was borne on the muster roll. There is a plea specifically carried in paragraph 5 of the written statement of the employers, to the effect that owing to the ban on employment of muster roll employees after January, 1979, the workman could not have been engaged as a muster roll employee after January, 1979. It is then pleaded that the workman is put to strict proof about his employment as a muster roll employee with the predecessor-Board, or the employers. It is then further pleaded that the documents, if any, put in by the workman regarding his employment had to be forged and fictitious, drawn up by his father Gulzar Ali, who was a Lineman with the employers . It is, particularly, urged that the workman has not come forward with clean hands. He has played fraud with the Court by concealing material facts from the Conciliation Officer, Moradabad, and also from this Court, in writ proceedings that he brought here.
10. It was pleaded that suppressing material facts, the workman caused the present reference to be made. About what are those facts that have been suppressed, it is pointed out by the employers that the workman initially filed a conciliation case before the Conciliation Officer/Assistant Labour Commissioner, Moradabad in the year 1999, with a plea that he was appointed on 01.01.1978 and his services were unlawfully terminated on 01.09.1978, while working as a muster roll employee. This case was filed after 21 years of his alleged termination, along with an application for condonation of delay. The Conciliation Officer, finding that no sufficient cause has been shown for this inordinate delay, rejected the application for condonation, as aforesaid, vide order dated 11.11.1999, and consigned the case to record. The workman did not assail the order of the Conciliation Officer, dated 11.11.1999 by which he declined to make a reference, relative to the petitioner's case regarding unlawful termination of service by the employers, with effect from 01.09.1978. Thus, the aforesaid order dated 11.11.1978, declining to make a reference, became final between the parties.
11. It is then pleaded that at this stage, he invoked the jurisdiction of this Court under Article 226 of the Constitution, and that too, about five years after the Conciliation Officer declined to make a reference, vide order dated 11.11.1999. He brought Civil Misc. Writ Petition no.22508 of 2004 with a prayer for the issue of a Mandamus or direction to appoint him as a class IV employee on a regular basis. This claim was based on the same cause of action as the one on the basis of which he unsuccessfully attempted to persuade the Conciliation Officer to raise an industrial dispute. In the writ petition, he did not disclose the proceedings that he had taken under the Act, unsuccessfully before the Conciliation Officer. Nevertheless, the learned Judge of this Court dismissed the writ petition aforesaid vide judgment and order dated 10.02.2005, holding that the delay of 14 years has nowhere been explained. It was also held that working for limited periods in two spells, does not entitle the workman to regular employment in the establishment of the employers. It was also held that the workman has an alternative remedy to raise an industrial dispute.
12. It is submitted by the learned counsel for the petitioner that this finding of the learned Judge clearly shows that the fact that the workman had earlier invoked his remedy unsuccessfully under the Act, was suppressed in the writ petition. The workman assailed the order of the learned Single Judge through a special appeal being Special Appeal No.405 of 2005, which too came to be dismissed vide judgment and order dated 30.11.2010. However, in the judgment rendered in appeal, their Lordships of the Division Bench remarked that looking to the controversy involved, it is a case that requires adjudication on the basis of oral and documentary evidence for which the Labour Court was the appropriate forum, also noticing there that thirteen employees who were working along with the workman, had already approached the Labour Court. It is pleaded that taking cue from this observation of their Lordships of the Division Bench, the workman once again switched back to the Forum under the Act. On occasion, he moved an application under Section 2-A of the Act before the Conciliation Officer, Moradabad that was registered as Case No. 14 of 2011. Here, he came up with a case of termination based on a new date, that is to say, 31.03.1990. He is said to have suppressed the fact from the Conciliation Officer that he had earlier applied for a reference of his claim based on the first spell of engagement, ending on 01.09.1978 and had failed before the Conciliation Officer on 11.11.1999, an order that he never challenged. The workman was successful in persuading the Conciliation Officer to make a reference to the Labour Court this time, where in the present Adjudication Case, the impugned award, has been rendered. The Labour Court, in adjudicating the dispute, after elaborately setting out the case of parties and the evidence which they have relied, besides a paraphrased account of their respective submissions, went into the evidence of the Employer's witness, Prabhakar Singh. It is remarked about this witness that he acknowledged in his cross examination that from 01.03.1978 to 31.03.1990 he was not posted as the Executive Engineer. It is further noticed that he had said that he did not file a list of muster roll employees, removed in the year 1979. It is remarked by the Labour Court that this fact that he did not file a copy of the removed muster roll employees of the year 1979, makes it clear that the workman's name would be there in that list. It is also remarked by the Labour Court that the workman has filed a certificate of service from January 1978 to 31.08.1978 which he has proved but the Sub Divisional Officer, in his deposition in Court, has not dispelled the same. It is also recorded by the Labour Court that the workman has proved his certificate of service from 01.04.1989 to 31.03.1990, issued by the then Sub Divisional Officer, B.P. Singh, which too has not been refuted or dispelled by the Sub Divisional Officer in his deposition in the witness box.
13. It is also recorded by the Labour Court that the workman has also proved by his testimony in Court, a letter written by his learned Counsel to the Executive Engineer, Chandausi, Moradabad that was in the form of a questionnaire, and on record, marked Exhibit W-5. In relation to this document, the Labour Court has observed that in this questionnaire it has been acknowledged that other workman circumstanced as the workman, have been re-employed with effect from 17.08.2004. The Labour Court has drawn an inference here to conclude that this fact shows that the services of the workman have been terminated in an unlawful manner.
14. The Labour Court has recorded a further finding to the effect that the workmen junior to the present workman are still in employment. The Labour Court has then taken note of a document marked as Exhibit E-2, proved by the Employers witness, about which the witness has said that the document carries the name of one Mohd. Akhtar, but does not mention the name of the workman (Mohd. Abrar). The Labour Court has moved on to remark that the workman's document, Exhibit W-2, the certificate of service issued by the Sub Divisional Officer, B.P. Singh indicates that the workman had remained in employment from 01.04.1989 to 31.03.1990. From this, again the Labour Court has concluded, that it goes to show that the workman had put in 240 days or more of service.
15. A further finding is recorded that before he was removed, the workman was not served with notice as required by the law or wages in lieu of notice or retrenchment compensation. The Labour Court concludes that in these circumstances, the workman was entitled to be reinstated with continuity in service and back wages. It is this award, which the Employers seek to assail through the present petition.
16. Ms. Usha Kiran, learned counsel for the petitioner submits that the impugned award passed by the Labour Court is based on perverse conclusions drawn from the evidence on record, or conclusions that are entirely misdirected. It is submitted that the finding regarding juniors to the workman being retained in service ignores from consideration material evidence, which is to the effect that the men who have been re-engaged, vide order dated 17.08.2004 have been so permitted in compliance of an interim order of this Court, passed in their favour, in Civil Misc. Writ Petition No.55554 of 2003, dated 17.12.2003. She submits that the impugned award, does not at all take this feature into account. It is her contention that in case the Labour Court had taken due note of the interim order of this Court, passed in favour of three other workmen, dated 17.08.2004, be they junior or not to the workman, the Labour Court would have concluded to the contrary. It is so as no rights can be based on a plea of discrimination, drawn on the basis of an act that is done in compliance of a judicial order. It is further argued on behalf of the petitioner that the finding of the Labour Court that Exhibit E-2 issued by the then S.D.O., which mentions name of a certain workman called Mohd. Akhtar, actually bears reference to the workman (Mohd. Abrar), is a perverse finding that has no basis to it. It is further submitted that there is absolutely no record or other evidence to show that the workman indeed worked as a muster roll employee from 01.04.1989 to 13.03.1990, completing 240 days and more of service in a year, so as to entitle him to the benefit of Section 6-N of the Act.
17. The Labour Court, in particular, ignored from consideration the fact that according to the workman's case, he worked in two spells, one from 01.01.1978 to 31.08.1978, and, in the second spell, from 01.04.1989 to 31.03.1990; and that basing his claim on the earlier period of engagement from 01.01.1979 to 31.08.1978, he had approached the Conciliation Officer in the year 1999, under Section 2-A of the Act, seeking to raise an industrial dispute, which has been declined by the Conciliation Officer vide order dated 11.11.1989, holding it to be highly belated, and one made after 21 years.
18. Learned counsel for the Employers has also pointed out that after attempting to seek a remedy before this Court on the writ side, and failing in that endeavour, the present application has been made to the Conciliation Officer, leading to the reference, now in hand. It includes the two different periods of engagement claimed by the workman, as the basis of raising a dispute, that is to say, the period from 01.01.1978 to 31.08.1978 and 01.04.1989 to 31.03.1990, where he had concealed his earlier failure, with regard to the period of his claim, based on engagement in the year 1978.
19. Learned counsel for the Employers also pointed out that when the workman first approached the Conciliation Officer seeking to raise an industrial dispute, both periods of engagement, that have been alleged, now on the second application under Section 2-A of the Act, were available, but in the first application, engagement in the year 1978 alone was made basis to raise the dispute. This according to Ms. Usha Kiran, learned counsel for the Employers shows that the subsequent claim put forward in the second application, and also in writ proceedings before this Court, is a claim that is based on fabrication with not a grain of truth to it. It is for this reason that the workman could not produce any evidence about either of the two stretches of time, during which he claims to have worked for the Employers. It is for the same reason that in all the relevant documents available with the Employers' establishment, that have been examined by them, and produced in Court, the name of the workman does not figure. It is submitted by her that these aspects have been completely overlooked by the Labour Court while rendering the impugned award. It is also argued by Ms. Usha Kiran that apart from all other facts, the workman's claim, on admitted facts, relates to a termination dating back to 31.03.1990, and the application under Section 2-A of the Act seeking to raise the industrial dispute was made in the year 2011, that is to say, after a period of 21 years. This makes the workman's claim ex facie stale where it is difficult to say whether any industrial dispute, indeed, survives, if at all ever there was one. The Labour Court has not at all bestowed consideration to the aforesaid feature about the workman's case, which according to the learned counsel for the Employers, if considered, might have led him to discard the workman's claim on ground of being highly belated and stale.
20. Sri Dilip Kumar Yadav, learned counsel appearing for the workman refuting the submissions made on behalf of the Employers has come up with a case that the workman was engaged from 01.01.1978 to 31.08.1978 as a lineman, borne on the muster roll. He was given a certificate of service for that period, which accounts more than 243 days where he performed well, and was appreciated. Thereafter, he was again re-engaged for the same work of a lineman from 01.04.1989 to 31.03.1990 in the Vidyut Vitran Khand, Moradabad. For this stint of his engagement, he was issued a certificate by the S.D.O.-III, of which the Labour Court has taken due note in the impugned award. The Labour Court has found it to be a validly proved document by the workman in his evidence, which the Employers Witnesses have not dispelled.
21. Learned counsel for the workman submits that these are findings of fact recorded by the Labour Court, in which this Court in exercise of its powers under Article 226, or for that matter 227, cannot interfere. It is submitted that the Labour Court has found for a fact that the services of the workman were terminated in breach of the procedure prescribed under the Act, without service of notice for the requisite period, or paying him wages for the period of notice as required by law, rendering the termination of his services unlawful. The said finding also is based on the edifice of the earlier finding regarding the workman's engagement from 01.04.1978 to 31.08.1978, that far exceeds 240 days; it is also, therefore, a finding of fact, which cannot be disturbed by this Court. He has also urged that similarly circumstanced workmen, to wit, Rajesh Kumar, Mahendra Singh, Indrapal Singh and Atul Babu, who were also removed like the workman, have been reinstated in service by an order of the Executive Engineer, Electricity Distribution Division, Chandausi, District Moradabad, dated 17.01.2004, but the Employers have not reinstated the workman in like manner. According to the learned counsel for the workman, this amounts to hostile discrimination between similarly circumstanced workmen, by the Employers, who are after all, the State.
22. Learned counsel for the Employers has come up with a plea that the earlier application moved before the Conciliation Officer, that was rejected vide order dated 11.11.1999 by the Conciliation Officer/ Assistant Labour Commissioner, was not made by him. He had not filed any application prior to Case no.57 of 2011 before the Conciliation Officer, that was decided in his favour on 25.09.2011.
23. In the next breadth, learned counsel for the workman says that it is true that the workman had erroneously moved the Assistant Labour Commissioner, Moradabad instead of moving the Labour Court, U.P. at Rampur, but that application was illegally dismissed on ground of laches. The order there was never communicated to the workman. About the delay in the matter of approaching the Labour Court, Sri Dilip Kumar Yadav, learned counsel for the workman says that delay in itself is no disentitling parameter. He has placed reliance in support of the aforesaid contention of his on a decision of the Supreme Court in Chief Engineer, Ranjit Sagar Dam and another vs. Sham Lal, (2006) 9 SCC 124, where on the issue of delay in raising an industrial dispute, it has been held by their Lordships thus:
"9. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on the facts of each individual case.
10. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283] it was noted at para 6 as follows: (SCC pp. 459-60) "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."
11. In S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] the position was reiterated as follows (SCC at pp. 39-40, para 17):
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. 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 as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] . In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283] a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India [1993 Supp (4) SCC 67 : 1994 SCC (L&S) 182 : (1994) 26 ATC 228] it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated some time in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228] the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay."
The above position was highlighted recently in Sudamdih Colliery of Bharat Coking Coal Ltd. v. Workmen [(2006) 2 SCC 329 : 2006 SCC (L&S) 306 : (2006) 1 Supreme 282."
24. A careful examination of the matter does indicate that the present reference, where the industrial dispute was raised in the year 2011 through an application made to the Conciliation Officer by the workman, relates to a termination of services made on 31.03.1990, going by the terms of the reference and nothing more. More or less, reckoned from the latter of the two stints that the workman had, in the Employers establishment as a muster roll borne lineman, the dispute has been raised after a delay of 21 years. It is true that going by the law, no limitation is prescribed, but stale claims where the industrial dispute may no longer actually exist,would be something upon which the law would frown. It is trite to say that what time period would constitute disentitling delay, would depend on the facts and circumstances of each case, as indicated in the decision of the Supreme Court in Chief Engineer, Ranjit Sagar Dam and another (supra). But, delay is certainly a very relevant factor to be considered by the Labour Court, in cases that are brought after lapse of a relatively long period of time, going by the short period of human life, and the still shorter productive period of it. The two decisions of their Lordships of the Supreme Court, that have been referred to with approval in Chief Engineer, Ranjit Sagar Dam and another (supra), are eloquent on various facets how delay would work to bar stale claims, notwithstanding the fact that a specified period of limitation is not prescribed by the statute to raise an industrial dispute. Various factors that have to be taken into consideration, are well illustrated there, and serve as a guiding hand in various matters where the issue arises.
25. Again, the Supreme Court in Kuldeep Singh vs. Instrument Design Development & Facilities Centre, (2010) 14 SCC 176, following two earlier decisions of their Lordships in Sapan Kumar Pandit vs. U.P. State Electricity Board and others, (2001) 6 SCC 222 and a three Judge Bench of their Lordships in Western India Match Co. Ltd. vs. Western India Match Co. Workers Union and others, (1970) 1 SCC 225, that had been followed in Sapan Kumar Pandit (supra) held on the question of stale industrial disputes in Kuldeep Singh (supra), thus:
"30. In view of the above, law can be summarised that there is no prescribed time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government "at any time" refer the dispute to a board or court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference.
31. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or forum for adjudication.
32. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the management or by the State Government.
(Emphasis by Court)
26. A perusal of the impugned award in this case would show that the Labour Court, before whom this plea about the grossly belated claim had been raised vide paragraph 14 of the written statement, did not at all advert to the aforesaid aspect, that indeed was required to be addressed by the Labour Court looking to the 21 years that stood between the date of termination from service of the workman and the time when the industrial dispute was raised, leading to the adjudication case before the Labour Court. If it had been only this issue about non-examination of the plea regarding the prima facie stale industrial dispute, which the Labour Court has failed to examine, it would have merited a remand of the matter to the Labour Court, and nothing more. But, here there are other issues to which the attention of the Labour Court has been drawn, and conclusions reached one way about those.
27. Most important of these is the fact that the workman has suppressed from the Conciliation Officer, when he made the present reference, and also from the Labour Court, the fact that the workman had earlier moved the Conciliation Officer in the year 1999, under Section 2-A of the Act, where he had cited the period of his engagement with the Employers as 01.01.1978 to 31.08.1978. There, he had mentioned that his services were unlawfully terminated on 01.09.1978, and that he was borne on the muster roll during the period of his retention by the Employers. There is on record a Memo, dated 09.12.1999, which indicates that the aforesaid reference was declined as time barred by the Conciliation Officer vide an order, dated 05.07.1999 (the Employer has indicated that date to be 11.11.1999 in the writ petition and elsewhere). The letter of the Conciliation Officer-cum-Assistant Labour Commissioner, Moradabad, is on record as Annexure no.4 to the writ petition. There is also on record a detailed note submitted by the Conciliation Officer, dated 11.11.1999 to the Deputy Labour Commissioner bearing a detailed reference to the case put up before him for conciliation and requesting a reference of an industrial dispute to be made, that he found to be stale with a delay of 21 years. A perusal of the said report dated 11.11.1999, that has been referred to by the Employers as an order, indicates that the matter was submitted for approval to the Deputy Labour Commissioner, who was, to all seeming, the Authority, delegated with powers to make a reference under Section 4-K of the Act by the State Government. The orders passed by the Conciliation Officer on 05.07.1999, and submitted to the Deputy Labour Commissioner for approval on 11.11.1999, which in due course, must be presumed to have been approved, were not challenged anywhere by the workman, and attained finality.
28. In between, the workman also tried to secure relief in substance, directed to ensure his reinstatement by the Employers through Civil Misc. Writ Petition no.22508 of 2004, that came to be dismissed vide order dated 10.02.2005. A Special Appeal from the said order of the learned Single Judge being Special Appeal no.405 of 2005, was also dismissed by the Division Bench, vide judgment and order dated 30.11.2010. At this juncture, the workman in the following year, that is to say 2011, suppressing all proceedings earlier taken before the Conciliation Officer in the year 1999, unsuccessfully to secure a reference of the industrial dispute to adjudication, and also all proceedings taken before this Court on the writ side, moved the Conciliation Officer again through an application under Section 2-A of the Act. The application made under Section 2-A of the Act in the year 2011, on the basis of which the present reference has been made, is on record as Annexure no.1 to the writ petition. It does not show anywhere even the slightest reference to the earlier efforts in the year 1999 before the Conciliation Officer, made by the workman unsuccessfully to secure a reference, and also before this Court on the writ side to seek relief of reinstatement in service, again unsuccessfully.
29. The suppression of these facts constitute material which if there before the State Government or its delegate, who exercised power to make the present reference under Section 4-K of the Act, in strong probability, would have swayed the subjective satisfaction of the Authority the other way. This plea about suppression of this fact of an earlier failed attempt to secure a reference was eloquently raised by the Employers in their written statement, vide paragraphs 8, 9, 10, 11, 12 & 13 thereof, which is on record of the writ petition, as Annexure no.2. A perusal of the impugned award, however, shows that the Labour Court has not at all looked into the aforesaid plea, about which there is evidence as well, documentary in nature, filed before it, to show that the present reference arose in consequence of the workman seeking it a second time on almost the same facts, and suppressing the result of earlier proceedings before the Referring Authority. The Labour Court, has given a short shift to this plea and all the evidence in support of it, that has remained absolutely unconsidered by it while rendering the impugned award.
30. Much more on the substantial side of it is one striking feature, that cannot be lost sight of. A perusal of the report submitted by the Conciliation Officer-cum-Assistant Labour Commissioner, dated 11.11.1999 to the Deputy Labour Commissioner for the approval of its order proposing rejection of the workman's claim to a reference of the industrial dispute shows that in the earlier application seeking a reference, the period of engagement mentioned by the workman as a muster roll employee is 01.01.1978 to 31.08.1978, the date of unlawful termination mentioned being 01.09.1978. This application under Section 2-A of the Act was made in the year 1999. Now, in the present application, that has been made a second time, almost on the same facts, there is an added period of claimed service rendered by the workman with the Employers on the muster roll, that was allegedly the time between 01.04.1989 to 31.03.1990. Again, in the present application, it has been made different to be a case of working for the Employers in two stints, one from 01.01.1978 to 31.08.1978, and subsequently from 01.04.1989 to 31.03.1990. Peculiarly, there is no mention of this period of retention/ engagement by the Employers from 01.04.1989 to 31.03.1990 by the workman in his earlier application made to the Conciliation Officer in the year 1999 seeking to raise an industrial dispute. If the workman had, indeed, worked in two stints as he now claims, there is no reason why in the year 1999 the workman would not have put forth a claim based on the second stint from 01.04.1989 to 31.03.1990. This omission in the first application made to the Conciliation Officer is so telltale, that it leaves no manner of doubt in this Court's mind that the workman's case is founded on utter falsehood apparent on record. The Labour Court in ignoring this fact has committed a manifest error of law.
31. There is one strange finding, of course, manifestly illegal, that the Labour Court has recorded. It is about the Employers' documents exhibited as Ex. E-2, that appears to be the list of retrenched employees on the muster roll. In relation to the said document, the Labour Court has referred to the testimony of an Employers' witness, who appeared to prove the document, and stated that in the said document the name of one Mohd. Akhtar figures, but not of Mohd. Abrar. The Labour Court has remarked about it that the said document which mentions the name of Mohd. Akhtar, in fact relates to the workman, Mohd. Abrar, which corroborates the certificate of service issued to him by the S.D.O., B.P. Singh for the period 01.04.1989 to 31.03.1990. This certificate has been challenged as a forged document by the Employers. The question of forgery apart, there is absolutely no reasoning behind the inference of the Labour Court that the name of Mohd. Akhtar which figures in the document Ex. E-2, refers to the workman, Mohd. Abrar. The said finding is no more than the most wild conjecture. In the opinion of this Court, the said finding is manifestly illegal, also.
32. The Labour Court has also recorded a finding inferring illegal termination of the workman's services from the fact that in answer to a letter from the workman's counsel to the Employers/ Executive Engineer, Chandausi, Moradabad, about reinstatement of similarly circumstanced named workmen, the Employers have acknowledged through a memo dated 17.08.2004, that they have been reinstated. Now, about this finding, it has been pointed out that the workmen under reference have been reinstated under a judicial order, being an interim order passed by this Court, dated 17.12.2003 in Civil Misc. Writ Petition no.55554 of 2003. This fact has been specifically mentioned in paragraph 25 of the writ petition, about which there is an evasive denial in paragraph 16 of the counter affidavit, which reads thus:
"16. That the contents of paragraphs 25 and 26 of the writ petition are not correct, hence denied."
The finding of the Labour, therefore, that similarly circumstanced workmen have been reinstated in service, is absolutely without basis, inasmuch as, reinstatement in that case is founded on a judicial order passed by this Court in a wriit petition. No plea of discrimination or differential treatment by the workman can be raised where the Employers have acted to reinstate some other workmen, claimed to be similarly situate, in compliance of a judicial order. That is no act of the Employers. The case of the workman is inherently unbelievable and incredible which the Labour Court ought to have noticed.
33. It is well settled that an award of the Labour Court, that is perverse or manifestly illegal, ought to be quashed by this Court in exercise of its jurisdiction under Article 226 of the Constitution.
34. The present case squarely falls in the category where the award has been rendered drawing perverse conclusions from evidence on record, ignoring material evidence and looking into irrelevant evidence. In the background also, there is this unignoreable plea of a stale claim, that has been raised after 21 years with no explanation forthcoming on the workman's part. The explanation, if at all there is one, is all about the workman invoking remedies earlier to the same end unsuccessfully; a fact that he has suppressed from the inception of these proceedings.
35. Under the circumstances, the award apart from being manifestly illegal, is also liable to be quashed in the interest of justice.
36. In the result, the writ petition succeeds and is allowed with costs. The impugned award dated 25.09.2013 (published on 15.04.2014) passed in Adjudication Case No.57 of 2011 by the Presiding Officer, Labour Court, Uttar Pradesh, Rampur, is hereby quashed.
Order Date :- 19.8.2019 Anoop/ Deepak