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2005 DIGILAW 692 (KAR)

Taluka Panchayath Athani v. State of Karnataka

2005-10-17

H.G.RAMESH, P.VISHWANATHA SHETTY

body2005
JUDGMENT P. Vishwanatha Shetty, J.—The Appellant in this appeal is the Taluka Panchayat, Athani, Belgaum District. In this appeal, the Appellant has called in question the correctness of the order dated 21st August, 2000 made in W.P. No. 19437 of 2000 c/w W.P. No. 8756 of 2000 passed by the learned Single Judge and also the award dated 17th August, 1999 made in Reference No. 49 of 1997 by the Court of the Additional Labour Court, Hubli. 2. The facts in brief may be stated as hereunder: The fourth Respondent - workman (hereinafter referred to as 'the workman') raised an industrial dispute before the Labour Court inter-alia contending that he had worked as a Work Inspector in the Appellant-Taluka Panchayat (hereinafter referred to as 'the Panchayat') during the period from 26th September, 1983 to 3rd March, 1984, in all for a period of 266 days and he was removed from service by the Appellant w.e.f. 3rd March, 1984 without complying with the provisions of Section 25-F and O of the Industrial Disputes Act (hereinafter referred to as 'the Act'). Before the Labour Court, the Panchayat was not made as a party; instead, the Block Development Officer (hereinafter referred to as 'the B.D.O.') was made as the sole Respondent . The B.D.O. though had engaged a Government Pleader, did not file any statement of objections disputing the claim made by the workman. However, the Government Pleader cross-examined the workman with regard to his assertion that he has put in 266 days of service in the establishment of Appellant. The trend of the cross- examination indicates that the workman had voluntarily left the service and he was not removed from service. 3. The Labour Court on consideration of the evidence on record made an award dated 17th August, 1999 setting aside the termination of service of the workman w.e.f. 21st June, 1984 and directed the Panchayat to reinstate the workman into service with continuity of service and 50% of backwages/daily wages from the date of the award till the date of reinstatement. However, it denied the backwages for the period from 21st June, 1984 till the date of award. Aggrieved by the award passed by the Labour Court, the Executive Officer of the Panchayat filed W.P. No. 8756 of 2000. The workman also filed W.P. No. 19437 of 2000 seeking for a direction to implement the award passed by the Labour Court. However, it denied the backwages for the period from 21st June, 1984 till the date of award. Aggrieved by the award passed by the Labour Court, the Executive Officer of the Panchayat filed W.P. No. 8756 of 2000. The workman also filed W.P. No. 19437 of 2000 seeking for a direction to implement the award passed by the Labour Court. The learned Single Judge heard both the writ petitions together and passed the impugned order. In the impugned order, the learned Single Judge while dismissing W.P. No. 8756 of 2000 filed by the Executing Officer of Taluka Panchayat, allowed the writ petition filed by the workman and made an order awarding full backwages to the workman from the date of the award passed by the Labour Court till the date of reinstatement as against 50% of backwages awarded by the Labour Court. 4. Sri Ramachandra Mali, learned Counsel appearing for the Appellant challenging the correctness of the award as well as the order passed by the learned Single Judge made four submissions. Firstly, he submitted that since the Labour Court as well as the learned Single Judge have found on facts that there is 13 years of delay in raising the dispute, the Labour Court should have dismissed the dispute raised by the workman on the ground that there was no industrial dispute existing between the parties and the dispute raised was stale dispute. In support of the submission, learned Counsel relied upon a decision of the Supreme Court in the case of The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, AIR 2000 SC 839 and drew our attention to paragraph-6 of the judgment. He also relied upon the judgment rendered by this Court in W.A. No. 3578 of 2002 disposed of on 27th July, 2005 wherein this Court had taken the view that if the claim made by the workman is held to be stale, such claim is required to be rejected on the ground that there was no industrial dispute existing between the parties. Secondly, he submitted that since the Panchayat was not made as a party and it is only the B.D.O. was made as a party to the proceedings before the Tribunal, the award passed by the Labour Court as also order passed by the learned Single Judge are liable to be set aside in the light of the judgment of this Court in The Assistant Executive Engineer Vs. J. Mahadevaiah and Another, ILR (2004) KAR 225 . Thirdly, he submitted that the finding recorded by the Labour Court that the workman has put in 266 days of service is totally erroneous in law. Learned Counsel further pointed out that the Labour Court has seriously erred in law in relying upon the document Ex.W1 - certificate dated 3.3.1984 stated to have been issued by the B.D.O. According to the learned Counsel, since the said certificate makes it clear to the naked eye that the signature put in the certificate is not clearly visible and no seal is also put on the said certificate, the Labour Court should not have acted upon the said certificate. It is his submission that since the Panchayat was not made as a party to the proceedings before the Labour Court, non-filing of the objection statement by the B.D.O., should not have been taken into account by the Labour Court to accept the claim of the workman. Finally, he submitted that since the relief sought for by the workman was with regard to a direction to implement the award passed by the Labour Court, the learned Single Judge should not have modified the award made by the Labour Court granting 50% of backwages from the date of award till the date of reinstatement and granted full backwages from the date of award till the date of reinstatement. Sri Shivakumar, learned Additional Government Advocate appearing for the State strongly supported the submission of the learned Counsel for the Appellant. Sri Shivakumar, learned Additional Government Advocate appearing for the State strongly supported the submission of the learned Counsel for the Appellant. However, Sri S.V. Desai, learned Counsel appearing for the workman while strongly supporting the award passed by the Labour Court as well as the order passed by the learned Single Judge pointed out that even if it is held that there was delay in raising the dispute, having regard to the facts and circumstances of the case the only order that can be made is to delay the backwages to the workman and his claim for reinstatement into service cannot be denied. In support of this submission, he relied upon a judgment of the Supreme Court in the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, AIR 1999 SC 1351 ; in the case of K. Vidya Sagar v. State of U.P. and Ors. reported in (2005) 5 SCC 590 ; and in the case of Lal Singh Ram Singh Rajput Vs. The Assistant Executive Engineer, AIR 2005 SC 2175 . He further relied upon an unreported decision of this Court in W.A. No. 1500 of 2005 disposed of on 2nd August, 2005. 5. Having elaborately heard the rival contentions advanced by the learned Counsel appearing for the parties, the only question that would emerge for consideration is as to whether the impugned order passed by the learned Single Judge as well as the award passed by the Labour Court calls for interference? 6. Even according to the workman, he was prevented from continuing in service w.e.f. 21st June, 1984. It is also not in dispute that the dispute was referred to the Labour Court by the Government on 29.4.1997. The Labour Court while considering the claim made by the workman for backwages and in support of its conclusion that the workman is not entitled to claim backwages till the date of award, has recorded a categorical finding that there has been 13 years of delay in raising the dispute. It is useful to extract the said observation made by the Labour Court, which reads as hereunder: 6. It is the evidence of the claimant, he had approached the daily wage federation for redressal and he has also submitted an application to the said Federation and thereafter he had approached the conciliation officer for raising the dispute. It is useful to extract the said observation made by the Labour Court, which reads as hereunder: 6. It is the evidence of the claimant, he had approached the daily wage federation for redressal and he has also submitted an application to the said Federation and thereafter he had approached the conciliation officer for raising the dispute. However the claimant has not placed any oral evidence when exactly the industrial dispute lons menied before the concerned Labour Authorities. The present reference was made on 29.4.1997. On perusing the records it reveals the claimants has raised the industrial dispute during the year 1997. There is no any acceptable reason for the delay or for the latches on part of the claimant in not approaching the appropriate authority ever since March, 1984. The claimant without any just reasons had slept over the matter for 13 long years. Such delay has not been explained by any good cause. It is well founded that there is no specific period of limitation stipulated to refer the said dispute to the Labour Court for adjudication. However, such delay in not raising the industrial dispute can be taken into cognizance in granting or denying backwages. In my opinion it is not a fit case to grant backwages to the claimant for the period from 3.3.1984 till the date of award.... The learned Single Judge at paragraph-6 of the impugned order has also recorded a finding that the workman had approached the Labour Court after lapse of 13 long years. Sri Desai, learned Counsel appearing for the workman is also unable to dispute that the said finding recorded by the Labour Court as also the learned Single Judge does not suffer from any error. Therefore, we are required to proceed on the basis that there was delay of 13 years on the part of the workman in raising the dispute. The Supreme Court in the case of Nedungadi Bank (supra) has taken a view that if there is inordinate delay in raising the dispute, such a stale dispute cannot be referred under Section 10 of the Act to the Industrial Court and that it must be held that there is no dispute existing between the parties. In this connection, it is useful to refer to the observation made by the Supreme Court at paragraph-6 of the judgment, which reads as hereunder: 6. In this connection, it is useful to refer to the observation made by the Supreme Court at paragraph-6 of the judgment, which reads as hereunder: 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 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. 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 industrial dispute was ex facie bad and incompetent. This Court in W.A. No. 4786 of 2002 disposed of on 25th February, 2005 following the judgment in the case of Nedungadi Bank has taken the view that if there is inordinate delay in raising the dispute, the reference made in such dispute is required to be rejected by the Labour Court on the ground that there is no industrial dispute existing between the parties. It is useful to refer to the observation made in the said judgment, which reads as follows: 10. Even according to the Respondent, his services came to be terminated with effect from 26th July, 1987. The reference was made by the State Government in the year 1999 to the Labour Court. It is useful to refer to the observation made in the said judgment, which reads as follows: 10. Even according to the Respondent, his services came to be terminated with effect from 26th July, 1987. The reference was made by the State Government in the year 1999 to the Labour Court. The Supreme Court in the case of Nedungadi Bank (supra) where there was 7 years delay, has taken the view that such a stale reference cannot be entertained by the Labour Court. The Supreme Court has taken the view in that context that there was no industrial dispute between the parties. It is useful to refer to the observations made by the Supreme Court at paragraph-7 of the judgment, which reads as hereunder: 7. In the present appeal it is not the case of the Respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the Respondent . Whenever a workman raises some dispute it does not become industrial dispute and appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purposes of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question. In the case of Assistant Executive Engineer Karnataka v. Shivalinga, 2003 SCC 87, the Supreme Court has held that long period of delay would impair the maintenance of the records. It is useful to refer to paragraph-6 of the judgment, which reads as hereunder: 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. It is useful to refer to paragraph-6 of the judgment, which reads as hereunder: 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. Sirhind Co-operative Marketing-cum- Processing Service Society Limited and Sapan Kumar Pandit v. U.P. SEB to contend that there is no period of limitation prescribed under the Industrial Disputes Act 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 the aforesaid two decision, 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 that 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 the 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 the writ proceedings, therefore, shall stand set aside and the award made by the Labour Court shall stand restored. The appeal is allowed accordingly. The law laid down by the Supreme Court in the decisions referred to above, in our view, fully applies to the facts of the present case. Therefore, we are of the view that the decision relied upon by Sri Desai in the case of Ajaib Singh (supra) and the judgment of the Supreme Court in the case of Shahaji Vs. The law laid down by the Supreme Court in the decisions referred to above, in our view, fully applies to the facts of the present case. Therefore, we are of the view that the decision relied upon by Sri Desai in the case of Ajaib Singh (supra) and the judgment of the Supreme Court in the case of Shahaji Vs. Executive Engineer, P.W.D., (2005) 3 LLJ 522 SC has no application to the facts of the present case. As noticed by us earlier, the Labour Court as well as the learned Single Judge have found on the basis of the evidence on record that the workman has not given any acceptable explanation for the inordinate delay of 13 years. Therefore, as noticed by the Supreme Court in the case of Shivalinga (supra), if a dispute is raised after expiry of a reasonable period, the Management would be seriously prejudiced in contesting the claim made by the workman. In the instant case, the Appellant is the Taluka Panchayat. In the course of the proceedings before the Labour Court, the Taluka Panchayat was not made as a party; it is only the Block Development Officer, who was made as a party. We are not impressed with the submission of Sri Desai that merely because the objection statement was not filed, it is not permissible for the Appellant-Panchayat to contend that the reference made is liable to be rejected on the ground that there was no industrial dispute existing between the parties on the date of reference. The serious question in this appeal is as to whether the workman had, as a matter of fact, worked for 266 days as contended by him and as to whether he had abandoned the service? The Taluka Panchayat functions through its members, who are representatives of the people and also its officials. Under these circumstances, we are of the view that on account of the inordinate delay caused in raising the dispute and making a reference, the Taluka Panchayat would be seriously prejudiced in countering the claim made by the workman. Under these circumstances, we are of the view that it is a case where the Labour Court should have made an order rejecting the reference made. Under these circumstances, we are of the view that it is a case where the Labour Court should have made an order rejecting the reference made. The Supreme Court in the case of Haryana State Co-operative Land Development Bank v. Neelam, AIR 2005 SCW 1439 has taken the view that the Courts and the tribunals having plenary jurisdiction have discretionary power to grant appropriate relief of the parties depending upon the facts and circumstances of the case. In the said decision, while considering the similar question, the Supreme Court after reviewing the earlier decision of the Supreme Court including the case of Ajab Singh strongly relied upon by Sri Desai, has taken the view that it is permissible for the Courts and Tribunals depending upon the facts and circumstances of the case to reject the reference on the ground of delay. It is useful to extract the observation made at paragraph-18 of the judgment, which reads as under: 18. It is trite that the Courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Dispute Act may be to impart social justice to the workman but 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.... As noticed by us earlier, the Respondent No. 4 - workman has not been in service since 21.6.1984. Even according to the learned Counsel for the workman, the workman is now aged 42 years. It is the case of the Appellant-Panchayat that there is no sanctioned post of Work Inspector in the Panchayat. If these matters are taken into consideration, we are of the view that there is absolutely no justification to sustain the award passed by the Labour Court directing reinstatement of the workman. This is not a case where the Court can exercise its discretion in favour of the workman directing reinstatement while denying him only backwages. If these matters are taken into consideration, we are of the view that there is absolutely no justification to sustain the award passed by the Labour Court directing reinstatement of the workman. This is not a case where the Court can exercise its discretion in favour of the workman directing reinstatement while denying him only backwages. Therefore, in the light of the discussion made above, we are of the view that the award passed by the Labour Court, which is affirmed by the learned Single Judge, is liable to be set aside on the short ground that the reference made by the Government to the Labour Court was a stale reference as there was no industrial dispute existing between the parties. 7. The next question requires to be considered is since the Appellant-Panchayat was not made as a party to the proceedings before the Labour Court, whether the workman is entitled for the relief sought for? Before the Labour Court it was only the B.D.O., who was made as a party to the proceedings and the Panchayat was not made as a party to the proceedings. The B.D.O. has nothing to do with the Taluka Panchayat. Further, Ex.W1 dated 3.3.1984 relied upon by the workman was given by him only. No doubt, the contention that the Taluka Panchayat was not made as a party was not raised either in the memorandum of writ petition or in the memorandum of appeal. However, the said contention being a legal contention, we permitted the Counsel for the Appellant to urge the said contention. This Court in the case of J. Mahadevaiah (supra) has taken the view that if either the State or the Zilla Panchayat was not made a party, the workman is not entitled for any relief. It is useful to extract paragraphs-6 and 7 of the judgment, which read as hereunder: 6. Section 2(g) of the Act defines 'employer' meaning in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in that behalf, or where no authority is prescribed, the Head of the Department, and in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of such local authority. The State or the Local Authority is put to a great disadvantage, where the departmental head or Chief Executive Officer is not made a party, and a claim is prosecuted against an Assistant Executive Engineer or a Junior Engineer in some project or division. In view of the periodical transfers of such officers, if a claim is made six or seven years later, or for the matter even three years after the alleged termination, the incumbent of the office will have no knowledge about the matter. If the appointment was for a short period, purely ad-hoc or stop gap, no records will be available. Many a time, service certificates are produced without examining the person who issued the certificate and those certificates are acted upon as proof of the employee having served for such period. Instances are legion where there has been collusion leading to issue of false service certificates. This results in a large number of back door entries into Government service, apart from exposing the Government to heavy expenditure by way of back wages. Though Supreme Court has repeatedly held that short daily wage employment will not entitle the daily wage employees to regularisation, the Labour Court have been ordering reinstatement with continuity of service after 10 to 12 years, on the basis that the employee had served for 240 days. Grant of such continuity of service in tern spawns claims for regularisation. 7. Having regard to Section 2(g) of the Act, if any person claiming to be a workman seeks reference of any dispute to adjudication or where a reference is made under Section 10(1) (c) or (d) of the Act, it is necessary that the prescribed authority or the Head of the Department should be made the party, if the claim is against the State Government, and the "Chief Executive Officer" should be made the party if the claim is against a local authority. If the 'employers' as defined is not impleaded and only a subordinate who is not authorised to represent the State/Local Authority is impleaded, the State/Local Authority will be entitled to challenge the award as not binding on them as they did not have an effective opportunity to defend the claim, and in some cases, they may also contend that the Award is not executable against them. In that event the Union or the workman concerned may have to establish that the concerned Authority authorised to represent the State/Local Authority had notice and knowledge of the proceedings and had in fact contested the matter before the Labour Court, through the person impleaded as party. Be that as it may. Therefore, the law laid down in the said case fully applies to the facts of the present case. The B.D.O., who has given the certificate Ex.W1, is only made as a party; the Taluka Panchayat was not made as party and even the Executive Officer was not made as a party to the proceedings. Further, the B.D.O has also not filed the statement of objections. Therefore, on this ground also, the award passed by the Labour Court is liable to be set aside. 8. The other question that would arise for consideration is as to whether the Labour Court was justified in taking the view that the workman has put in 266 days of service? 9. We have gone through the award passed by the Labour Court and the evidence of the workman, who had examined himself as WW-1 and also the certificate Ex.W1 relied upon by the workman in support of his claim that he has put in 266 days of service. The certificate Ex.W1 shows that the workman had worked on daily wage basis from 20th June, 1983 to 3rd March, 1984 i.e., 256 days. However, it is necessary to point out that it is the case of the workman that he continued to be in service on daily wage basis from 20h June, 1983 till 20th June, 1984. In this connection, it is useful to refer to paragraph-2 of the claim statement, which reads as follows: 2. That the claimant has joined on dated 20.6.1983 on daily wages as Work Inspector. He has been terminated on 21.6.1984 and at the time of termination he has drawn the salary of Rs. 300/- p.m. (Three Hundred Rupees Only). 10. Therefore, while it is the case of the workman in the claim petition that he continued to be in service from 20th June, 1983 till 20th June, 1984, the certificate Ex.W1 shows that the workman was in service from 20th June, 1983 to 3rd March, 1984. As noticed by us earlier, the certificate Ex.W1 does not bear the seal. It is dated 3rd March, 1984. As noticed by us earlier, the certificate Ex.W1 does not bear the seal. It is dated 3rd March, 1984. If the workman is continued to be in service till 21st June, 1984, as claimed by him, we are unable to understand as to what prompted the B.D.O., who was made a party to the proceedings, to give the certificate Ex.W1 to the workman stating that the workman was in service from 20th June, 1983 to 3rd March, 1984. Though normally this Court will not interfere with the finding of fact recorded by the Labour Court, however, if the finding recorded is perverse or suffers from an error apparent on the face of the record and such error results in serious injustice, this Court, in our view, should not hesitate to interfere against such finding. We are satisfied that the certificate Ex.W1, which is made as a basis for the conclusion reached by the Labour Court, cannot be acted upon at all. Since the Panchayat was not made as a party to the proceedings, the Panchayat could not seriously contest the proceedings. Therefore, we are of the view that the finding recorded by the Labour Court that the workman has put in 266 days of service is liable to be set aside. 11. Further, we also find considerable force in the contention of the learned Counsel appearing for the Appellant that in the writ petition filed by the workman seeking a direction to implement the award passed by the Labour Court, the learned Single Judge could not have modified the award made by the Labour Court wherein he has granted only 50% of backwages from the date of the award till the date of reinstatement and awarded full backwages from the date of award till the date of reinstatement. 12. In the light of the discussion made above, the award dated 17th August, 1999 made in Reference No. 49 of 1997 by the Court of the Additional Labour Court, Hubli as well as the order dated 21.8.2000 passed in W.P. No. 19437 of 2000 and W.P. No. 8756 of 2000 by the learned Single Judge are hereby set aside. 13. In terms stated above, this appeal is allowed and disposed of. However, no order is made as to costs.