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Himachal Pradesh High Court · body

2004 DIGILAW 222 (HP)

RAMESH CHAND v. UNION OF INDIA

2004-09-14

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J. (Oral): Petitioner has challenged Annexure PJ, dated 27.1.2000. Claim of the petitioner for referring the dispute for adjudication has been declined vide this annexure on the ground that the same has been raised after a lapse of more than 9 J years without any justification for the long delay. 2. At the time of hearing of this writ petition, it was not disputed that petitioner was engaged as a daily and rated mazdoor (labourer) by respondent No. 1. His services were terminated on 31.10.1988. Petitioner alleges that it was without following due process of law. According to respondents, petitioner was engaged for a particular purpose against a particular work. After the purpose/work came to an end, his services have been rightly and in accordance with law terminated. Therefore, neither Section 25-G nor 25-H of the Industrial Disputes Act, 1947 was attracted to the facts and circumstances of this case. 3. Petitioner further claims that in the year 1994, respondents reengaged services of 5 workmen. He represented to the authorities for his re-engagement also in March and November, 1995, but without any consequence. His further case is that more than 100 workers were re-engaged by the respondents, but petitioner remained where he was, i.e. out of job. In this background, a legal notice was got served by him through his Advocate on the Chief General Manager (Telecom), Telecommunication Circle, H.P., Shimla, as well as on Telecom District Manager, Hamirpur District, Hamirpur vide Annexure PG. This also did not yield any result. Thereafter, conciliation proceedings were undertaken by Assistant Labour Commissioner (C) II, Chandigarh. He submitted his conciliation-cum-failure report to the Secretary, Government of India, Ministry of Labour, New Delhi, vide Annexure PH, on 15.9.1999. Instead of matter being referred for adjudication in accordance with law, reference was declined vide Annexure PJ as noted hereinabove. 4. Respondents when put to notice, resisted the claim of the petitioner and as already observed, their stand was that reference has been rightly rejected, therefore, this writ merits dismissal. Another reason given in the reply while resisting the claim of the petitioner was that the re-engaged persons were sponsored by the concerned employment exchanges, whereas the petitioners name was not sponsored. However, the question arises, if work was available with the respondents, were they not required to follow the letter, of law i.e. Sections 25-G and 25-H supra. 5. Another reason given in the reply while resisting the claim of the petitioner was that the re-engaged persons were sponsored by the concerned employment exchanges, whereas the petitioners name was not sponsored. However, the question arises, if work was available with the respondents, were they not required to follow the letter, of law i.e. Sections 25-G and 25-H supra. 5. In the facts and circumstances of this case, plea urged on behalf of the respondents that name of the petitioner was not sponsored has been raised simply to be rejected. Reason being that as per petitioner, his name was sponsored by the employment exchange in the year 1985, when he was initially engaged, therefore, there was no occasion for his name being sponsored for the second time. As such, this is an additional ground to reject the plea urged on behalf of the respondents that his name was not sponsored by the concerned employment exchange. 6. Could the reference be declined by respondent No. 1 on the ground of delay? If answer to this question is in the affirmative, this Court has no option but to reject this writ petition, and if the answer is in the negative, then this writ petition has to be allowed. 7. Whether belated claim is to be referred to the Labour Court or not, had been attending the attention of the Honble Supreme Court. Reference to some decisions is made herein below. 8. In M/s. Western India Match Co. Ltd. v. The Western India Match Co. Workers Union and others, 1970(1) Supreme Court Cases 225, a three Judge Bench while dealing with .the effect of lapse of time in making the reference as also what Is meant by "at any time" under the U.P. Industrial Dispute Act, negatived the plea of the management that claim was belated and could not have been referred to. 9. In Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. and another, 1999(6) SCC 82 : 1999(2) Cur.L.J. (Services) SC 132, this question was directly considered by the Honble Supreme Court and what was observed and is relevant for the purpose of the present case, is extracted herein below :- "4. It is not in dispute that the services -of the workman were terminated on 16.7.1974 and he had issued the notice of demand only on 8.12.1981. It is not in dispute that the services -of the workman were terminated on 16.7.1974 and he had issued the notice of demand only on 8.12.1981. It is not disputed that no plea regarding delay appears to have been taken by the management before the Labour Court. It is also acknowledged that Article 137 of the Limitation Act has not been specifically made applicable to the proceedings under the Act seeking reference of industrial disputes to the Labour Court. This Court, in no case, has so far held that either Article 137 of the Limitation Act or the principle incorporated therein is applicable to the proceedings under the Act. 5. Before appreciating the- rival contentions urged on behalf of the parties, it has to be noticed as to under what circumstances the Act was enacted and what were the objectives sought to be ^ achieved by its legislation. It cannot be disputed that the Act was brought on the statute book with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between ,the parties. It is a piece of legislation providing and regulating the service conditions of the workers. The object of the Act is to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country in its turn helps to improve the conditions of labour (Hindustan Antibiotics Ltd. v. The Workman), AIR 1967 SC 948. The Act is intended not only to make provision for investigation and settlement of industrial disputes but also to serve industrial peace so that it may result In more production and improve the national economy. In the present socio-political economic system, it is intended to achieve co-operation between the capital and labour which has been deemed to be essential for maintenance of increased production and industrial peace. The Act provides to ensure fair terms to workman and to prevent disputes between the employer and the employees so that the large interests of the public may not suffer. The Act provides to ensure fair terms to workman and to prevent disputes between the employer and the employees so that the large interests of the public may not suffer. The provisions of the Act have to, be interpreted in a manner which advances the object of the Legislature contemplated in the statement of objects and reasons. While interpreting different provisions of the Act, attempt should be made to void industrial unrest, secure industrial peace and to provide machinery to secure the end. Conciliation is the most important and desirable way to secure that end. In dealing with industrial disputes, the courts have always, emphasized the doctrine of social justice, which is founded on the basic ideal of socio-economic equality as enshrined in the preamble of our Constitution. While construing the provisions of the Act, the Courts have to give them a construction which should help in achieving the object of the Act. 6. The history of the legislation with respect to the industrial disputes would show that for the first time in the year 1920 the Trade Disputes Act was enacted which provided for Courts of Inquiry and Conciliation Boards and forbade strikes in public utility service without a statutory notice in writing. The Act did not make provision for any machinery for settling of industrial disputes. The said Act was repealed and replaced by the Trade Disputes Act, 1929 which started the State intervention in the settlement of industrial disputes and armed the Government with the power which could be used whenever considered fit to intervene in industrial disputes. This Act was, amended in the year 1938 authorizing the Central and Provincial Governments to appoint conciliation officers for mediating in or promoting the settlement of industrial disputes. Shortly thereafter the Government of India promulgated the Defence of India Rules to meet the exigency created by the Second World War, Rule 81-A gave powers to the Government to intervene in industrial disputes and was intended to provide speedy remedies for industrial disputes by referring them compulsorily to conciliation or adjudication by making the awards legally binding on the parties and by prohibiting strikes or lock-outs during the pendency of the conciliation or adjudication proceedings. The Industrial Employment (Standing orders) Act, 1946 was enacted which made provision for framing and certifying of standing orders covering various aspects of service conditions in the industry. The Industrial Employment (Standing orders) Act, 1946 was enacted which made provision for framing and certifying of standing orders covering various aspects of service conditions in the industry. The Industrial Disputes Bill was introduced in the Central Legislative Assembly on 8.10.1945 which embodied the essential principles of Rule 81-A of the Defence of India Rules and also certain provisions of Trade Disputes Act, 1929 concerning industrial disputes. The Bill was passed by the Assembly in March, 1947 and became the law w.e.f. 1.4.1947. The present Act was enacted with the objects as referred to hereinabove and provided machinery and forum for the investigation of industrial disputes, their settlement for purposes of analogous and incidental thereto. The emergence of the concept of a welfare State implies an end to the exploitation of workman and as a corollary to that collective bargaining came into its own. The legislature had intended to protect workmen against victimization and exploitation by the employer art to ensure termination of industrial disputes in a peaceful manner. 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 the life-blood of a developing society. The Act provides machinery for investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorized courts which are not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negations, conciliation and adjudication as per the need of the society keeping in view the facts changing social norms of the developing country like India. It appears to us that the High Court has adopted a usual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act." 10. After following this decision in Gurmail Singh v. Principal Govt. College of Education and others, 2000(9) SCC 496, it was held as under :- "3. It appears to us that the High Court has adopted a usual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act." 10. After following this decision in Gurmail Singh v. Principal Govt. College of Education and others, 2000(9) SCC 496, it was held as under :- "3. Having heard learned Counsel for the parties we find that the Labour Court having held in case of the appellant whose services were terminated on 30.9.1981, that Section 25-F of the Industrial Act was violated, was in error in dismissing the reference on the ground of delay as the termination was of 1981 and the dispute was raised in 1989. Similarly, the High Court in the impugned judgment committed the same error in confirming the said decision. The reason is obvious. As laid down by this Court in the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. and another, 1996(6) SCC 82 : 1999(2) Cur.L.J. (Services) SC 132, if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High Court as well as the Labour Court are, set aside. The termination of the appellant on 30.9.1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. But so far as the back wages are concerned, he will not be entitled to any back wages from 30.9.1981 till 27.2.1989 as he had not raised any dispute during that time. Thereafter from 1.3.1989 till the date of reinstatement of the present appellant, on the facts and circumstances of the case, the respondents are directed to pay 50 per cent of the back wages towards full and final satisfaction of appellants claim, regarding back wages. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs." 11. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs." 11. Again in Sapan Kumar Pandit v. U.P. State Electricity Board and others, 2001 (6) SCC 222, similar view was taken. 12. Shri Sood, on the other hand, placed reliance on a decision of the Supreme Court in The Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, AIR 2000 SC 839 and urged that merely because no time limit is prescribed, does not mean that the power is exercisable at any point of time, as according to him, claim of the petitioner in this case is stale, therefore, Annexure PJ suffers from no infirmity, calling for interference in these proceedings. 13. Keeping in view the ratio laid down in 1970(1) Supreme Court Cases 225, (supra) and 2001(6) SCC 222 (supra), no benefit can be delivered by the respondents from the decisions in The Nedungadi Bank Ltd. v. K.P. Madhavankutty and others. 14. No other point is urged. 15. In view of the aforesaid discussion, this writ petition deserves to be allowed and it is ordered accordingly. As a result of it, Annexure PJ is quashed and set aside. Respondent No 1 is now directed to refer the dispute between the parties on the basis of failure report submitted by Assistant Labour Commissioner (C) II, Chandigarh. Needful will be done by the said respondent by or before 17th December, 2004. Parties are left to bear their own costs. 16. After doing the needful, said respondent is directed to file affidavit reporting compliance with this direction of the Court and for this limited purpose, the case is ordered to be listed in Court on 17.12.2004. Certified copy of this order will be made available to the learned Counsel for the parties within one week from today. 17. Before parting with this case, it hardly needs to be clarified that since respondent No. 2 has been converted into a wholly government owned company i.e. Bharat Sanchar Nigam Limited, directions issued in this judgment shall also bind the said Nigam as well. Because all assets and liabilities of the erstwhile Telecommunication Department have vested in the said Nigam. 17. Before parting with this case, it hardly needs to be clarified that since respondent No. 2 has been converted into a wholly government owned company i.e. Bharat Sanchar Nigam Limited, directions issued in this judgment shall also bind the said Nigam as well. Because all assets and liabilities of the erstwhile Telecommunication Department have vested in the said Nigam. Learned Additional Central Government Standing Counsel, who in as also the standing counsel for the said Nigam is directed to make one Photostat copy of this order available to the Nigam for compliance at its end with a view to ensure that this judgment is carried out in its letter and spirit.