JUDGMENT 1. - This petition has been filed against the award dated 19.10.2000, passed by the learned Industrial Dispute and Labour Judge, Kota holding that an employee employer relationship existed between the petitioner-Rajasthan State Road Transport Corporation (hereinafter 'RSRTC') and the respondent even prior to the respondent joining service of RSRTC under its conditional office order dated 09.03.1987 as a conductor on a daily wages of Rs. 20/-. The learned labour court held that the respondent ought to be treated in employment with RSRTC effective 10.04.1987 when he tried to join service and RSRTC having wrongfully denied permission to the respondent to join its service was liable to pay special compensation of Rs. 50,000/- to the respondent. 2. The facts of the case are that the respondent, Hazari Lal Khatik, applied to be considered for appointment as a conductor with the RSRTC on daily wages of Rs. 20/- in pursuance to an advertisement for the purpose which provided that prospective applicants apply for training to be appointed as conductor on RSRTC's buses and those applicants, who were successful in the one week's training would be appointed as conductors. It was however made clear that no stipend or any other payment of whatsoever nature would be payable to the applicants during the training period. It appears that the respondent, Hazari Lal Khatik, applied for consideration and successfully trained for a period of one week. RSRTC issued a conditional order of appointment on the post of conductor on daily wages @ Rs. 20/- on 09.03.1987 on certain terms and conditions of which condition No.9 provided that in the event the successful candidates did not join their duties by 13.03.1987, the order of appointment would stand cancelled. It is important to note that the said condition is not under challenge before this Court. 3. Admittedly the respondent failed to join service in terms of the letter of appointment dated 09.03.1987 by 13.03.1987. In the circumstances as obtaining, the offer made by RSRTC to the respondent under its office order dated 09.03.1987 went abegging and stood cancelled. The respondent however appears to have expressed his desire to join service with RSRTC in terms of the now cancelled order dated 09.03.1987 qua him on or about 10.04.1987. RSRTC on its part refused to allow the respondent to join service as a conductor on its buses on daily wages of Rs. 20/-. 4. The respondent however appears to have expressed his desire to join service with RSRTC in terms of the now cancelled order dated 09.03.1987 qua him on or about 10.04.1987. RSRTC on its part refused to allow the respondent to join service as a conductor on its buses on daily wages of Rs. 20/-. 4. That it then appears that some time in the year 1996, a dispute was raised by the respondent under the provisions of the Industrial Dispute Act, 1947. The State Government in its wisdom vide order dated 28.02.1996 made a belated reference to the Industrial Tribunal & Labour Court, Kota for adjudication of the claim of the respondent with regard to the purported illegality of RSRTC in refusing to allow the respondent to join service as a conductor in terms of the office order dated 09.03.1987 and the consequent entitlement of the respondent to be declared in employment of RSRTC effective 10.04.1987. 5. In the claim then filed before the labour court by the respondent, it was stated that in terms of the letter of appointment dated 09.03.1987 as the respondent was directed to deposit a sum of Rs. 500/- before joining, he went to his village to collect the said amount. It was stated that the respondent however fell ill on 10.03.1987 itself while on the village visit and was thereafter diagnosed as suffering from typhoid. It was stated that RSRTC was informed of the unavoidable reason owing to which the respondent was not being able to join service as conductor by 13.03.1987. The case of the respondent was that this information was sent to the RSRTC under a postal certificate on 11.03.1987. In reply to the claim petition, RSRTC submitted before the labour court that for one the labour court had no jurisdiction to entertain the reference inasmuch as there was no employee employer relationship between RSRTC and the respondent. The respondent admittedly had not joined services with RSRTC pursuant to the office order dated 09.03.1987 by 13.03.1987. The office order stood withdrawn / cancelled. Thus, no cause of action was made out attributable to any illegality by RSRTC which required in law to be adjudicated. No industrial dispute between an employer and its workman was made out in the facts of the case. The office order stood withdrawn / cancelled. Thus, no cause of action was made out attributable to any illegality by RSRTC which required in law to be adjudicated. No industrial dispute between an employer and its workman was made out in the facts of the case. On the merit of the matter, it was submitted that the purported letter sent under postal certificate on 11.03.1987 was never received. RSRTC and the respondent thereafter submitted their respective evidences both oral and documentary before the labour court. The learned labour court thereupon adjudicated the claim petition, negatived the case of it lacking jurisdiction as agitated by RSRTC, overlooked the self-limiting terms and conditions of the office order dated 09.03.1987 more particularly condition No.9 thereof providing that in the event of non-joining of the candidates by 13.03.1987 on the post of conductor with RSRTC, the offer would cease to be operative and would stand withdrawn and held that RSRTC had acted illegally in failing to allow the respondent to join as conductor when has reported for joining on 10.04.1987. The labour court consequently directed that the respondent should be treated in the employment of the RSRTC effective 10.04.1987 when he allegedly offered to join and for the mental trauma occasioned by the purported illegality of RSRTC in refusing joining permission, the respondent should be compensated with an amount of Rs. 50,000/- as special damages. Aggrieved of the judgment and award dated 19.10.2000, this petition has been filed. 6. Mr. Ashok Bansal, appearing for the petitioner-RSRTC, has submitted that the labour court, Kota had no jurisdiction to address the dispute as laid before it, for admittedly on the date of the filing of the claim as also on the date of making of reference by the State Government, the respondent was not in the employment of RSRTC. He has submitted that the office order dated 09.03.1987 was self-limiting, where the respondent could join service only upto 13.03.1987 as conductor on the RSRTC's buses on a daily wages of Rs. 20/- in strict compliance with the terms and conditions detailed therein. It was submitted that the normal incidents of contract under the Indian Contract Act, 1872 apply with equal force to contracts of employment. 20/- in strict compliance with the terms and conditions detailed therein. It was submitted that the normal incidents of contract under the Indian Contract Act, 1872 apply with equal force to contracts of employment. In this regard reference has been made to the judgment of the Hon'ble Supreme Court in the case of Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors., (2006) 4 SCC 327 and Bank of India & Ors. v. O.P. Swarnakar & Ors., (2003) 2 SCC 721 . Counsel has also referred to a judgment of the Madras High Court in the case of Odeon Cinema v. Workers of Sagar Talkies, AIR 1954 Madras 1045 , wherein the Hon'ble Madras High Court has held that in a case where the employment has not commenced, but was merely at the stage of a contract in making, no industrial dispute could arise between the employer and the person whom the employer agreed to take in service, but who had not joined service. It was held that in such situations a reference under the provisions of the Industrial Dispute Act, 1947 was not maintainable. The Madras High Court further held that any dispute between the parties to an executory contract prior to an employee joining the industry concerned would be a subject matter to be resolved by ordinary legal processes inter alia by way of an appropriate suit for damages. Mr. Bansal has submitted that the labour court however did not address the aforesaid issue. Instead it misdirected itself and clutching at jurisdiction not available in law wrongly held that the contingent appointment preceded by one week's training under the office order dated 09.03.1987 tantamounted to the commencement of the employment of the respondent with RSRTC. Counsel has further submitted that aside of the aforesaid, even otherwise reference made to the labour court in respect of a dispute admittedly arising from the office order dated 09.03.1987 in the year 1996 (28.02.1996) was grossly delayed and ought not to have been entertained also on this ground - agitated by RSRTC but left unaddressed by the labour court. It was submitted that the Hon'ble Supreme Court in the cases of M/s. Shalimar Works Ltd v. Their Workmen, AIR 1959 SC 1217 ; Ratan Chandra Sammanta & Ors. It was submitted that the Hon'ble Supreme Court in the cases of M/s. Shalimar Works Ltd v. Their Workmen, AIR 1959 SC 1217 ; Ratan Chandra Sammanta & Ors. v. Union of India & Ors., 1993 Supp (4) SCC 67 and Nedungadi Bank Ltd. v. K.P. Madhavankutty & Ors., (2000) 2 SCC 455 : 2000 I CLR 671 SC has held that a reference delayed by several years was of no avail and no relief thereon ought to be allowed. It has been submitted that even though the question of delay in making the reference was indeed raised before the learned labour court, yet the objection was not considered by the learned labour court more particularly when no serious attempt had been made by the respondent to explain as to why the dispute was belatedly raised after a period of about nine years. It was submitted that on this count also the impugned judgment and award dated 19.10.2000, passed by the labour court is liable to be quashed and set aside. Counsel finally submitted that the office order dated 09.03.1987 was only for appointment as a conductor on the RSRTC's buses on daily wages of Rs. 20/-. He submits that assuming without admitting that the reference was maintainable and / or that action of the RSRTC was illegal and contrary to law, yet in the context of the facts of the case, the learned labour court ought not to have issued a direction in the year 2000 (13 years later) for employment of the respondent as a conductor with RSRTC's buses and for payment of special compensation of Rs. 50,000/- as it would have entailed employment over 13 years after the requirement of RSRTC on a post not necessarily vacant and outgo of public funds without good cause. 7. Mr. Ajatshatru Mina, appearing for the respondent, would submits that in terms of the Rajasthan State Road Transport Workers & Workshop Employees Standing Orders, 1965 (hereinafter 'Standing Orders'), a trainee is also an employee of the RSRTC. He submits that the standing orders define duty under clause 4(4) inter alia to mean service rendered as a probationer as also including the period of joining time. Reference has also been made to sub-clause (b) of clause 4(4) of the standing orders to submit that the time spent in any training sponsored by the Corporation is also a part of duty. Reference has also been made to sub-clause (b) of clause 4(4) of the standing orders to submit that the time spent in any training sponsored by the Corporation is also a part of duty. It was further submitted that Clause 7 of the standing orders provides that a motor transport worker has been classified either as a probationer or permanent or temporary employee or apprentice. Counsel submits that in view of the provisions of standing orders, the respondent, who had trained for a period of one week with the RSRTC and on successful completion was appointed under the office order dated 09.03.1987, was an employee of RSRTC and consequently a reference on the dispute raised was maintainable before the Industrial Tribunal & Labour Court. It was further submitted that the office order dated 09.03.1987 was received by the respondent on 10.03.1987, but thereafter the respondent suddenly took ill and suffered from typhoid consequent to which he could not join service by 13.03.1987. It was submitted that intimation of the respondent's illness was sent on 11.03.1987 to the RSRTC under certificate of posting and RSRTC yet acted illegal in refusing to allow the respondent to join service on his reporting on 10.04.1987. It was submitted that on illegality in the action of RSRTC being found, the matter lay in the realm / discretion of the learned labour court to grant appropriate relief and it is not for this Court to interfere therewith without good cause under its writ jurisdiction under Article 226/227 of the Constitution of India. 8. I have heard the counsel for the petitioner-RSRTC and the respondent and perused the impugned award.In my considered opinion, in the facts of the case, a reference before the learned labour court was not maintainable. It is trite that employment is fundamentally contractual and no doubt when propped up by statutory provisions confers status and protection from the rule of hire and fire. In the instant case, in terms of the advertisement for appointment to the post of conductor with RSRTC, it was provided that the interested applicants would be required to undertake one week's training and only those successful in the training would be offered appointment. The respondent did indeed participate in the training programme was found successful and offered appointment on the post of conductor on RSRTC's buses on daily wages of Rs. 20/- under the office order dated 09.03.1987. The respondent did indeed participate in the training programme was found successful and offered appointment on the post of conductor on RSRTC's buses on daily wages of Rs. 20/- under the office order dated 09.03.1987. It is on record that several of the applicants were unsuccessful at the training and were not offered appointment. The employment cannot thus in any situation relate back to the date of commencement of training. The office order dated 09.03.1987 provided that the selected candidates join by 13.03.1987 or the offer would elapse and stand withdrawn. Admittedly the respondent received the office order dated 09.03.1987 on 10.03.1987. However he did not join thereafter on or before 13.03.1987 for the putative reason that he had taken ill when he went to his village. The case of the respondent is that he had sent intimation of his illness to the Depot Manager, RSRTC. Admittedly the information of the respondent's alleged illness was not sent by registered post. It is claimed to have been sent by UPC. Aside of courts lending little and no probative worth to claims of letter sent by UPC, it is well settled that the postal department cannot be held to be the agent of the sender. In any event the assertion of the purported letter dated 11.03.1987 sent by the respondent has been negatived in evidence by the witnesses of the RSRTC before the labour court. This witness remained unshaken. No reliance can thus be placed on the assertion of the respondent in regard to the letter of 11.03.1987. The bottom line is thus that the respondent not having joined service by 13.03.1987 pursuance to the office order dated 09.03.1987, no employee employer relationship was formed between the RSRTC and the respondent. In this view of the matter, as specifically held by the Hon'ble Madras High Court in the case of Odeon Cinema (Supra), a reference under the provisions of the Industrial Dispute Act, 1947 was thus not maintainable. Further the learned labour court also failed to exercise its jurisdiction in not addressing the specific objection of RSRTC that the claim laid by the respondent before it ought not to be entertained and be dismissed as it was a grossly belated claim about nine years since the purported cause of action of 10.04.1987. Further the learned labour court also failed to exercise its jurisdiction in not addressing the specific objection of RSRTC that the claim laid by the respondent before it ought not to be entertained and be dismissed as it was a grossly belated claim about nine years since the purported cause of action of 10.04.1987. The labour court was bound by the conditions in the letter dated 09.03.1987 and had no jurisdiction to find a case contrary thereto and hold that even though the respondent did not join service on or before 13.03.1987, he was to be considered in the employment of RSRTC with effect from the date of his joining training. In this, the labour court had misconstrued the office order dated 09.03.1987 and overlooked the specific condition that non-joining by a candidate by 13.03.1987 would entail the withdrawal of the order of appointment as conductor. The labour court being a creature of statute had no plenary power. It had to decide the dispute on the material before it religiously adhearing to the terms of the office order dated 09.03.1987. The labour has instead sought to make out a new contract between RSRTC and the respondent by misapplying RSRTC's standing orders issued under the Industrial Employment (Standing Orders) Act, 1946. The 'Standing Orders' would apply to an employee only on an employer employee relationship being established. This as has been held was not established between RSRTC and the respondent. 9. In my considered opinion, therefore the judgment and award dated 19.10.2000, passed by the labour court is without reference to the facts of the case and law, wholly perverse and suffers from an apparent excess of jurisdiction. Conversely, it is without jurisdiction.Consequently, the writ petition is allowed. The judgment and award dated 19.10.2000 is set aside.Writ Petition allowed. *******