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Karnataka High Court · body

2007 DIGILAW 296 (KAR)

BABAJAN v. STATE OF KARNATAKA

2007-04-19

SUBHASH B.ADI

body2007
ORDER The award dated 24-8-2006 passed by the Labour Court, Hubli in Reference No. 121 of 1996 is called in question by the petitioner. 2. Petitioner claims that, he was appointed by the respondent-management on 13-12-1982 on daily wage basis and was working to the satisfaction of the management till he was illegally terminated on 25-9-1986. It is alleged that the other workmen who were appointed with the petitioner have been retained in the service. It is also allege that he had completed 240 days of continuous service and his termination is illegal and in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and it amounts to retrenchment within the meaning of Section 2(00) of the Act. 3. Respondents filed counter inter alia denying that the petitioner had worked for 240 days and that there is no record to show that he had worked as a daily wager. Further, stated that the reference itself is stale and not maintainable. The Labour Court framed the following issues.- "(1) Whether the management of Assistant Executive Engineer, LI Sub-Division No.1 (Damasite), Munavalli, is justified in terminating its workman B.M. Hulkop with effect from 22-9-1986? (2) If not, to what reliefs the said workman is entitled?" The Labour Court held that the petitioner has not completed 240 days of service and rejected the reference. 4. Sri Vighneshwar S. Shastri, learned Counsel for the petitioner workman, submitted that the petitioner had produced Ex. W. 3 which is an endorsement issued by the Assistant Executive Engineer, Minor Irrigation, Sub-Division, Munavalli, which document, clearly shows that he had worked from 13-12-1982 to 25-9-1986 and submitted that, this evidence is not appreciated by the Labour Court. He also submitted that, the other documents like Exs. W. 4, 5 and 6 were also not considered by the Labour Court. 5. He also submitted that, the other documents like Exs. W. 4, 5 and 6 were also not considered by the Labour Court. 5. He further submitted that, earlier by award dated 17th August, 2001 petitioner was directed to be reinstated without back wages and the said award was called in question by the respondent in W.P. No. 36033 of 2002 and other connected matters and this Court by order dated 23rd June, 2005 set aside the award of reinstatement and directed the Labour Court to reconsider the matter once again by impleading Karnataka Neeravari Nigama Niyamitha, which was not a party earlier, and while remitting the matter, this Court by an interim order allowed the petitioner to continue in service. 6. Sri K Ramachandran, learned Counsel appearing on behalf of Sli M.R.C. Ravi, submitted that, a specific plea was raised before the Labour Court that, the petitioner has not completed 240 days and that the reference itself is stale and not maintainable and further submitted that, the alleged termination is in 1986 and the reference in 1996, there is delay of ten years. He further submitted that Ex. W. 3 is not an original document but is a carbon copy, neither the original nor any other document supporting the same is produced by the petitioner, to prove that he had worked for 240 days. Ex. W. 3 also does not prove that he had worked continuously for 240 days and referring to para 17 of the award, he pointed out that the Labour Court has rightly considered Ex. W. 3 produced by the petitioner and gave finding that the petitioner has not worked for 240 days. 7. In support of his contention, he relied on the judgment in the matter of Range Forest Officer v S.T. Hadimani and submitted that in order to show that where the workman's claimed that, he had worked for more than 240 days, the workman is required to prove the same by cogent evidence in terms of Section 25-B, unless the workman produces material evidence, the claim of the petitioner that he had worked for 240 days is not acceptable. 8. 8. On the question of delay, he relied on the judgment of the Apex Court in the matter of Nedungadi Bank Limited v K.P. Madhavankutty and Others and submitted that, though Section 10 of the Act does not provide for limitation however the workman cannot seek for reference of his dispute at any time, such a delayed reference are stale disputes and cause prejudice the management. In this regard he relied the following paras from the above Apex Court judgment: "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 the order dismissing the respondent from service. At the time reference was made no industrial dispute existed on 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". Relying on this passage, learned Counsel for the respondents submitted that in this case the connected records of the office, will not be available, if the dispute is raised or reference is made after 10 years and it would prejudice the case of the respondent. He further submitted that specific plea was raised by the respondent before the Labour Court, and the Labour Court framed the issue, however has not addressed the said issue, nor the petitioner has given any justifiable explanation for the delay. He also submitted that the State Government cannot in a mechanical fashion make a reference of the alleged dispute terming it as an industrial dispute. 9. In support of his contention, he also relied on the decision in the matter of Haryana State Co-operative Land Development Bank v Neelam1 and submitted that the Apex Court referring to Nedungadi Bank's case has reiterated as under: "It is trite that the Courts and Tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. In support of his contention, he also relied on the decision in the matter of Haryana State Co-operative Land Development Bank v Neelam1 and submitted that the Apex Court referring to Nedungadi Bank's case has reiterated as under: "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 Disputes 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". Relying on this, learned Counsel for the respondent submitted that as far as delay is concerned it is fatal to the facts and circumstances of the case and further relying on para 13 of the above judgment he submitted that though Court cannot import a period limitation when the statute does not prescribe the same, but it does not mean that, irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate Government while making a reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the Labour Court. He submitted that, the Labour Court cannot be compelled to accept a reference even without considering, whether the dispute is stale or not, whether it prejudices the case of the respondent or whether it will fatally affects the interest of the respondent. 10. In this regard he further relied on another decision in the matter of Uttar Pradesh State Road Transport Corporation v Babu Ram, particularly para 10 which reads as under: "It is to be noted that the High Court has very cryptically disposed of the writ petition. The workman has not placed any material to show that it had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. The workman has not placed any material to show that it had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. The High Court, on a hypothetical basis has assumed that the dispute might have been raised promptly but delayed by the State Government and he cannot be penalised for delay in finalising the conciliation proceedings and the reference. But neither the Labour Court nor the High Court has even noted the factual position. The conclusion was based on surmises and conjectures". and submitted that without the material placed by the workman the Labour Court could not have entertained the reference. In this regard, he referred to the decision of the Division Bench of this Court in W.A. No. 7318 of 2001 along with W.A. Nos. 3578 and 3838 of 2002, decided on 27th July, 2005 and referring to para 7, submitted 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 anytime 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. He further submitted that the Division Bench of this Court referring to various decisions of the Apex Court has held that, 51/2 years delay itself is fatal and referring to the said decision he further submitted that, in this case there is a delay of 10 years and condoning such delay would prejudice the interest of the respondent because of the change in the circumstances and destruction of relevant record. 11. Sri Jagadish Mundargi, learned Government Pleader, supported the contentions raised by the learned Counsel for respondent 3. In this case two issues fall for consideration: (1) Whether the workman has completed 240 days continuously in terms of Section 25-B of the Act? (2) Whether a stale claim can be entertained by the Labour Court? The only evidence produced by the petitioner to show that he had worked for 240 days is Ex. In this case two issues fall for consideration: (1) Whether the workman has completed 240 days continuously in terms of Section 25-B of the Act? (2) Whether a stale claim can be entertained by the Labour Court? The only evidence produced by the petitioner to show that he had worked for 240 days is Ex. W. 3 which is a carbon copy and the original has not been produced and the Labour Court has not relied on the same. Learned Counsel for the petitioner submitted that if an opportunity is given he would have produced the original and that should not be denied such opportunity. 12. It is seen that Ex. W. 3 is a carbon copy and no steps are taken by the petitioner even to summon the original document, if any, from the authority the initial burden is on the petitioner, to show that he had worked for 240 days and if that burden is not discharged by the petitioner, he will not be entitled for the relief under Section 25-F of the Act. 13. As far as delay is concerned as stated earlier, the Apex Court in the judgment referred to supra has held that the delay would become fatal to the respondent, if the Government entertains the dispute and refer the same after long delay and in such case respondent would not be in a position to place material before the Labour Court. If the respondent is likely to be prejudiced on account of delayed reference the State should consider as to whether the stale dispute could be referred or not. If the reference is entertained after a lapse of several years it is certainly a matter which will have an effect on the respondent as it will not be able to place materials and records of a stale dispute. 14. In this regard, it is useful to refer to the decision of this Court cited supra wherein this Court considering the decision of the Apex Court has found that, the delay would certainly prejudice the respondent and has held that will affect the respondent's right. The decision of the Division Bench at para 7 may be relevant. 14. In this regard, it is useful to refer to the decision of this Court cited supra wherein this Court considering the decision of the Apex Court has found that, the delay would certainly prejudice the respondent and has held that will affect the respondent's right. The decision of the Division Bench at para 7 may be relevant. It reads thus: "However, we are of the view that if the dispute is referred beyond a reasonable period in cases where the claim of the workman is that he has put in 240 days of continuous service prior to the date of termination, if the employer is likely to be prejudiced on account of not preserving the material or evidence to support his claim, the reference is required to be answered against the workman on the ground that the dispute raised has become stale and is non-existent. The Supreme Court in the case of Nedungadi Bank Limited v K.P. Madhavankutty, AIR 2000 SC 839 , has taken the view that if there is considerable delay in referring the dispute to the Labour Court, the Labour Court is required to reject the reference on that ground. At paragraph 6 of the said judgment, the Supreme Court has observed as follows.- "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after 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. 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". In the case of Assistant Executive Engineer, Karnataka v Shivalinga, (2002)10 SCC 167, at paragraph 6, the Supreme Court has observed as follows.- "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, AIR 1999 SC 1351 and Sapan Kumar Pandit v Uttar Pradesh State Electricity Board, AIR 2001 SC• 2562, 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 arid 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 decisions, 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 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". In our view, the decision of the Supreme Court in the case of S.M. Nilajkar v Telecom District Manager, Karnataka, AIR 2003 SC 3553 , relied upon by Sri Naik has no application to the facts of the present case. In the case of Nilajkar, the Supreme Court taking into account that the department was formulating a scheme to accommodate casual labourers, took the view that the workman in that case was justified in awaiting the. outcome of the scheme before he raised the dispute. However, in the said judgment, the Court has accepted the principle laid down by the Supreme Court in the case of Nedungadi Bank Limited and other decisions referred to in the said decision. It is useful to refer to the judgment at paragraph 17 of the judgment, which reads as hereunder: "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 Limited v Their Workmen, 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. We cannot agree. It is true, as held in Shalimar Works Limited v Their Workmen, 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 the most of the old workmen was held to be fatal in Shalimar Works Limited v Workmen. In Nedungadi Bank Limited v K.P. Madhavankutty, 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, AIR 1993 SC 2276 , 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 for any relief. Although the High CQurt 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 sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour Employees under P and T Department v Union of India, AIR 1987 SC 2342 , 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"". 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"". From the principles enunciated by the Apex Court on interpretation of Section 10 of the Act, it is clear that, though Section 10 does not provide for any limitation, however, the dispute is required to be raised within a reasonable time and inordinate delay in making the reference of a dispute without any justifiable reason, the Labour Court cannot blindly adjudicate the matter without considering the question regarding the delay in seeking reference of the dispute. The Apex Court while interpreting Section 10 has found that, entertaining of delayed dispute or reference would adversely affects the interest of the respondent-employer particularly when relevant material and records which are required to be placed before the Labour Court possibly would not be available and may prejudice the case of the employer. It is in this context the Labour Court is required to consider the question of delay in seeking reference or dispute and if there is no justifiable reason for the delay such disputes are required to be dismissed without going into the merit. Since in this case the Labour Court has utterly failed to address itself to the question of delay and also the question as to whether the petitioner has completed 240 days of continuous service in a year in terms of Section 25-B of the Act, I feel that this matter requires reconsideration. Hence, the Labour Court should consider the delay in the light of the principle enunciated by the Apex Court and this Court and also consider the case of the petitioner as to whether he has completed 240 days of continuous service in terms of Section 25-F of the Act by giving opportunity to produce the original of Ex.W. 3 and other documents. 15. Accordingly writ petition is allowed. The award dated 24th August, 2006 passed in Reference No. 121 of 1996 by the Additional Labour Court, Hubli is set aside. 15. Accordingly writ petition is allowed. The award dated 24th August, 2006 passed in Reference No. 121 of 1996 by the Additional Labour Court, Hubli is set aside. The Labour Court is directed to consider the question of delay in the light of the observations made by the Apex Court and if the Labour Court finds that there is justifiable reason to accept the reference it should proceed to hear the matter on merit and the Labour Court must decide, whether the petitioner has completed 240 days in terms of Section 25-B of the Act, in the light of principles enunciated by the Apex Court. 16. As far as employment of the petitioner is concerned, if he is continuing in the job he would be permitted to be continued till the disposal of the dispute.