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2010 DIGILAW 831 (JHR)

BOC India Ltd. v. Concerned Workman Shibani Ghosh

2010-08-26

PRADEEP KUMAR

body2010
Order Heard learned counsel for the parties. 2. Learned counsel for the petitioner submitted that he has challenged the impugned order passed by the Presiding Officer, Labour Court, Jamshedpur in Reference Case No. 23/2004, whereby he was asked to decide an issue as to whether reference is bad under Section 2(k) of the Industrial Disputes Act, 1947 because the wife of the deceased workman was never in the employment of the management, hence, no industrial dispute exists, and as such, the reference is not maintainable. The second point, which was urged, was that the reference was made after a long delay, as the workman died in the year 1985, the dispute was raised on 25.1 .2002 and the reference was made in 2004 and in that view of the matter, the dispute is stale and the reference is bad. 3. Learned counsel for the petitioner has relied upon a decision in the case of Nedungadi Bank Ltd. vs. K.P. Madhavankutty, reported in 2000(2) SCC 445, wherein it was held that although the Tribunal is to decide as to whether the dispute is stale but the High Court can look into the same. Learned counsel also relied upon a decision in the case of State of Jammu and Kashmir vs. Sajad Ahmed Mir, reported in 2006(5) SCC 766 , wherein it was held that 15 years had passed from the date of the death of the applicant's father and the prayer for appointment on compassionate ground was refused. 4. On the other hand, learned counsel appearing for the respondent-workman, submitted that since reference has already been made by the Government and by the impugned order the learned Labour Court, relying on a judgment of the Supreme Court in the case of D.P. Maheshwari vs. Delhi Advocate & Ors. reported in 1983 Lab. I.C.1629 as also a judgment of the Supreme Court, reported in 2004 (1) JLJR 141 , rejected the petition of the management. reported in 1983 Lab. I.C.1629 as also a judgment of the Supreme Court, reported in 2004 (1) JLJR 141 , rejected the petition of the management. It is submitted by the learned counsel that in the instant case there is no delay, since immediately after the death of the workman T.K. Ghosh in 1985, the management, by its letter dated 15th January, 1985, which has been annexed in this writ petition as Annexure-5, has stated as under: "This confirms my discussions with you on 15 January, 1985 when I assured you that our Company will provide employment to one of the sons of late Mr. Tapan Kumar Ghosh on attaining the age of 18 years, subject to medical fitness and suitability." 5. Learned counsel for the respondent workman further submitted that accepting that offer the deceased workman's widow Mrs. Shibani Ghosh made an application for appointment of her son, who attained the age of 18 years in 1988, and as such, the demand in 2002 is not belated and that matter cannot be decided as a preliminary issue. Now the learned counsel for the respondent summited that it is a well demand, since it is a demand made by the management itself. He has also relied upon a decision in the case of Director, Fisheries Terminal Department vs. Bhikubhai Meghajibhai Chavda, reported in 2010(1) SCC 47 , wherein the Hon'ble Supreme Court has held that the matter cannot be said to be stale, when a demand is made in time. 6. After hearing both the parties and considering the case, I find that an offer was made by the employer. immediately after the death of the workman T.K. Ghosh 011 15th January, 1985 that they will provide service to one of the sons of T.K. Ghosh on attaining the age of 18 years and in that view of the matter, if after attaining the age of 18 years, the widow of T.K. Ghosh made a demand for appointment of her son in 2002, it cannot be said to be stale and it has to be decided in the reference itself. 7. In that view of the matter, I find no merit in this writ petition and the same is, accordingly, dismissed. .