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2014 DIGILAW 537 (ORI)

Narendra Kumar Barik v. State of Orissa

2014-08-27

C.R.DASH

body2014
JUDGMENT : C.R. DASH, J. The award dated 17.12.1998 passed in 1.0. Case NO.96 of 1994 by the Learned Labour Court, Bhubaneswar in dismissing the claim of the Petitioner on the ground of limitation alone is impugned in this Writ Petition. 2. The Petitioner workman was working as Store Keeper on NMR basis continuously from 01.05.1982 to 01.04.1984 under Executive Engineer, Mayurbhanj Irrigation Division, Baripada, District-Mayurbpanj, Opp. Party No.2. The management without complying with the provisions of Section 25-F of the Industrial Disputes Act ("Act" for short) illegally terminated his service. The workman approached the management on several occasions but in vein. Ultimately he raised dispute before the Labour Officer & attempt for conciliation having failed, failure report was submitted. By a reference under clause (c) of sub-Section (1) of Section 10 road with sub-Section (5) of Section 12 of the Industrial Disputes Act 1947, the matter was referred by the appropriate government in Labour & Employment Department vide their Memo No.5902 (4) dated 12.05.1994 to the Presiding Officer, Labour Court, Bhubaneswar for adjudication. Industrial Disputes Act 3. Before the Labour Court the management, Opp. Party NO.2 filed written statement contending that the claim of the workman is barred by law of limitation. It was also urged that the claim of the workman is not tenable in the eye of law as he was retrenched for closure of the work with due prior notice. 4. Learned Labour Court on consideration of the materials on record & evidence adduced held specifically that admittedly the workman had worked under the management Opp. Party No.2 as Store Keeper on NMR basis from 01.05.1982 to 01.04.1984. On the basis of evidence, it was further held that during his termination on 01.04.1984 no compensation or notice pay was paid to the workman. Such a fact of non-payment of compensation/notice pay was also admitted by Management Witness No.1 in his cross-examination & it was also an admitted fact that the workman held worked for more than 240 days. From the evidence on record, Learned Labour Court came to further specific finding that the management did not comply with the provisions of Section 25-F of the I.D. Act. 5. From the evidence on record, Learned Labour Court came to further specific finding that the management did not comply with the provisions of Section 25-F of the I.D. Act. 5. In spite of such finding, as alleged by Learned Counsel for the Petitioner, Learned Labour Court without moulding the relief so far as payment of back wages is concerned, jumped to take up the issue of limitation raised by the management & answered the reference in negative by dismissing the claim of the Petitioner. In dismissing the claim of the Petitioner on the point of limitation, Learned Labour Court relied on a decision of the Hon'ble Supreme Court, reported in AIR 1959 SC 1217 & some decisions of other High Courts. 6. Learned Counsel for the Petitioner submits that it would have been proper on the part of the Learned Labour Court to mould the relief so far as payment of back wages is concerned, without dismissing the claim of the Petitioner on the ground of limitation alone. He relies on the case of Mahavir Singh vrs. U.P. State Electricity Board & others, (1999) 9 SCC 178 , Gurmail Singh vrs. Principal, Government College of Education & ors, (2000) 9 SCC 496 & Benudhar Swain vrs. Presiding Officer, Labour Court, 2009 (Supp.l) OLR (NOC) 786 to substantiate his contention. . 7. Mr. Somanath. Mishra, Learned Addt. Government Advocate on the other hand relies on the case of Nedungadi Bank Ltd. vrs. K.P. Madhavankutty & ors, (2000) 2 SCC 455 & Haryana State Co- operative Land Development Bank vrs. Neelam, (2005) 2 Supreme 314 to substantiate his contention to the effect that on the ground of limitation alone claim of a workman can be dismissed if such claim has become stale. 8. Hon'ble Supreme Court in the case of Mis. Shalimar Works Limited vrs. Their Workmen, AIR 1959 SC 1217 , was in seisin over the matter pertaining to issue of discharge of workmen coming within the mischief of Section 33 of the Act wherein remedy under Section 33-A was available to the workmen. In paragraph-13 of the Judgment, Hon'ble Supreme Court observed thus: "There is no doubt that strictly speaking the order of the company discharging its workmen on 06.04.1948, when a dispute was admittedly pending was a breach of Section 33; (see. In paragraph-13 of the Judgment, Hon'ble Supreme Court observed thus: "There is no doubt that strictly speaking the order of the company discharging its workmen on 06.04.1948, when a dispute was admittedly pending was a breach of Section 33; (see. Punjab National Bank Ltd. v. Employees of the Bank, 1953 SCR 686 : ( AIR 1953 SC 296 ). The remedy for such a breach is provided in Section 33-A & it can be availed of by an individual workman. If therefore it was felt by the workmen who were discharged on April 6, 1948, that there was breach of Section 33 by the company, they should have applied individually or collectively to the tribunal under Section 33-A. None of them did this. It is true that some kind of letter was written to the Assistant Labour Commissioner in November 1949, but that was also very late & nothing seems to have happened thereafter for almost another three years, till the first reference was made on 7.10.1952. It is true that there is no limitation prescribed for reference of disputes to an Industrial Tribunal even so it is only reasonable that disputes should be referred as soon as possible after they have arisen & after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carryon & if for any reason there has been a wholesale discharge of workmen & closure of the industry followed by its reopening & fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under Section 33-A in this case; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry & that is the correct order to make." 9. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry & that is the correct order to make." 9. The context for making the aforesaid observation by Hon'ble Supreme Court came up while dealing with the scope of Section 33-A of the 1.0. Act for reinstatement, of 250 workmen even after re-engagement of old workers who were discharged. The management had given two notices to the discharged workers to apply for re-engagement, & ultimately in the second notice, it was also said that up-to July 21st 1948, the company would only consider engagement of former employees & no fresh labour would be recruited till that date. Thereafter the majority of the old workmen applied for being re-taken in service & everyone who applied up-to July 21st was reengaged. Thereafter the company refused to re- engage the old employees a few of whom are said to have applied in November & December 1948, August 1951, February 1952 & January 1953. 10. Section 33-A is a special provision for adjudication as to whether conditions of service have been changed by an employer during pendency of conciliation or other adjudicatory processes. An aggrieved person in such situation is given the right to make a complaint in writing to one of the authorities mentioned in the Section. The complaint should therefore be made within a reasonable time to avoid dislocation of the industry as the Industrial Disputes .Act is a piece of legislation with the object to ensure social justice to both the employer & employees & advance the progress of industry by bringing about the existence of peace & cordial relationship between the parties. The context in the present case is however different from the context in which the aforesaid observation of Hon'ble Supreme Court came to be given. The present case deals with a reference under Section 10 (1)(c) read with Section 12(5) of the Act wherein the question of dislocation of the industry which is a Government department may not be an issue as the question of reinstatement of only one workman is in question. 11. Hon'ble Supreme Court in the case of Ajaib Singh vrs. The present case deals with a reference under Section 10 (1)(c) read with Section 12(5) of the Act wherein the question of dislocation of the industry which is a Government department may not be an issue as the question of reinstatement of only one workman is in question. 11. Hon'ble Supreme Court in the case of Ajaib Singh vrs. The Sirhind Co-operative Marketing-cum• Processing Service Society Ltd. & anr, AIR 1999 SC 1351 , in para 10 of the Judgment has held thus : "It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act & that the relief under it can not be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice & not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages." 12. In the case of Jai Bhagawan vrs. Management of the Ambala Central Co-operative Banks Ltd., AIR 1984 SC 286 , Hon'ble Supreme Court declined to set aside the order of reinstatement of the workman who was shown to have approached the Court after a prolonged delay. However, in the circumstances of the case, Hon'ble Supreme Court directed the workman to be reinstated in service with continuity from the date on which his services were terminated but having regard to the fact that he had raised the industrial dispute after a considerable delay without doing anything in the meanwhile, he was not awarded the back wages. The grant of half back wages from the date of termination of service until the date of order & full, back wages from that date till his reinstatement was found in the circumstances to meet the ends of justice. In H.M.T. Ltd. vrs. The grant of half back wages from the date of termination of service until the date of order & full, back wages from that date till his reinstatement was found in the circumstances to meet the ends of justice. In H.M.T. Ltd. vrs. Labour Court, Ernakulam, 1994 Lab LR 720 (SC), there was a delay of 14 years in invoking the jurisdiction of the Court, Hon'ble Supreme Court found that instead of full back wages the grant of.60% of the back wages upon the reinstatement of the workman would meet the ends of justice. In the case of Mahabir Singh vrs. U.P. State Electricity Board & others (1999) 9 SCC 178 there wage a delay of six years. In the case the Labour Court held the termination of service of the workman to be illegal but declined to give full back wages & awarded 50% of the back wages all through out from the date of termination till reinstatement. The High Court held that due to delay in raising the Industrial dispute the entire reference was incompetent. Hon'ble Supreme Court in appeal restored the order of the Labour Court by holding that the aspect of delay having been taken care of by the Labour Court by curtailing the quantum of back wages, the Labour Court's order was neither uncalled for nor illegal. In the case of Gurmail Singh V. Principal, Government College of Education & ors (2000) 9 SCC 496 , Hon'ble Supreme Court referred to Ajaib Singh (supra) & held that mere delay in challenging the termination would not be a bar to the adjudication of the matter but could only deprive the Appellant of his back wages for the period of delay in raising the termination issue. 13. In the case of Sapan Kumar Pandit -vrs.- U.P. State Electricity Board & ors, AIR 2001 SC 2562 , H0n'ble Supreme Court was dealing with the scope of Section 4-K of the U.P. Industrial Disputes Act. In that case it was held that the reference under Section 4-K of the U.P. Industrial Disputes Act could not be quashed merely on the ground of delay & of course the longer delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief & that is a different matter altogether. 14. In that case it was held that the reference under Section 4-K of the U.P. Industrial Disputes Act could not be quashed merely on the ground of delay & of course the longer delay for making the adjudication could be considered by the adjudicating authorities while moulding its relief & that is a different matter altogether. 14. In the case of Nedungadi Bank Ltd., AIR 2000 SC 839 (supra), Hon'ble Supreme Court in para 6 of the Judgment held thus- "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 & to revive matters which had since been settled. Power is to be exercised reasonably & in a rational manner. There appears to us to be no rational basis on Which the Central Government has exercised powers 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 & 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 & subsequently reinstated is nowhere mentioned. Demand raised by the Respondent for raising industrial dispute was ex facie bad & incompetent." 15. So far as the decision of Ajaib Singh (supra) is concerned, Hon'ble Supreme Court In Haryana State Co-operative Land Development Bank vrs. Neelam (2005) 2 Supreme 314 (supra) has held thus: "12. The decision of Ajaib Singh (supra) must be held to have been rendered in the fact situation obtaining therein & no ratio of universal application can be culled out therefrom. Neelam (2005) 2 Supreme 314 (supra) has held thus: "12. The decision of Ajaib Singh (supra) must be held to have been rendered in the fact situation obtaining therein & no ratio of universal application can be culled out therefrom. A decision, as is well-known, is an authority of what it Jecides & not what can logically be deducted there from Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, JT 2005 (1) SC 303, & Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anrs. Para 42 (2005) 1 SCALE 385 ." 16. In Balbir Singh vrs. Punjab Roadways & Anr, (2001) 1 SCC 133 referring to decision of Ajaib Singh (supra), this Court observes thus: "5. The Learned Counsel for the Petitioner strenuously urged that the Tribunal committed error in denying relief to the workman merely on the ground of delay. The Learned Counsel submitted that in industrial dispute delay should not be taken as a ground for denying relief to the workman if the order/orders under challenge are found to be unsustainable in law. He placed reliance on the decision of this Court in the case of Ajaib Singh v. Sin hind Coop. Marketing-cum-Processing Service Society Ltd. (1999) 6 SCC 82 : 1999 SCC (L&S) 1054 : JT (1999) 3 SC 38). 6. We have carefully considered the contentions raised by the Learned Counsel for the Petitioner. We have also perused the aforementioned decision. We do no find that any general principle as contended by the Learned Counsel for the Petitioner has been laid down in that decision. The decision was rendered on the facts & circumstances of the case, particularly the fact that the plea of delay was not taken by the management in the proceeding before the Tribunal. In the case on hand the plea of delay was raised & was accepted by the Tribunal. Therefore, the decision cited is of little help in the present case. Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts & circumstances pf the case. No doubt the discretion is to be exercised Judicially." 17. Again in Assistant-Executive Engineer, Karnataka vrs. Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts & circumstances pf the case. No doubt the discretion is to be exercised Judicially." 17. Again in Assistant-Executive Engineer, Karnataka vrs. Shivalinga; (2002) 10 SCC 167, a bench of Hon'ble Supreme Court on decision of Ajaib Singh & Sapan Kumar Pandit (supra) observed thus: "Learned Counsel for the Appellant strongly relied on the reasoning of the Labour Court & 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 vs. Sirhind Coop. Marketing-cum- Processing Service Society Ltd. (1999) 6 SCC 82 & Sapan Kumar Pandit vs. U. P. SEB (2001) 6 SCC 222 to contend that there is no period of limitation prescribed under the Industrial Disputes Act to raise the dispute & it is open to a party to approach the Court even belatedly & 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 tile 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 to relationship between the parties as employer & employee. In cases where there is a serious dispute, or doubt in such relationship & 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." 18. Hon'ble Supreme Court in the case of Haryana State Co- operative Land Development Bank vrs. 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." 18. Hon'ble Supreme Court in the case of Haryana State Co- operative Land Development Bank vrs. Neelam, (supra), after discussing a, number of Judgments held that although Court cannot import a period of limitation when statute does not provide the same but it does not mean that irrespective of fact & circumstances of the case, a stale claim must be entertained closing eyes to procedural law like estoppel, waiver & acquiescence. Hon'ble Court emphatically stressed that procedural law like estoppel, waiver & acquiescence are equally applicable to industrial proceedings. 19. In the aforesaid case the Respondent named Neelam was appointed as a Typist on an adhoc basis for a period of 89 days from 6.1.1985. She was given extensions of 89 days from time to time from 6.1.1985. The said period of 89 days eventually came to an end on 30.05.1986. Her services were not continued thereafter. No order of termination, however, was issued. She allegedly made a representation to the appropriate authority for continuing her in service. Undisputedly, she thereafter joined the services of Haryana Urban Development Authority (HUDA) on or about 10.08.1988. Some other employees similarly situated raised an industrial dispute which was referred by the appropriate Government for adjudication before an industrial Court. The said employees got some relief in the said industrial adjudication. Presumably, because reliefs were granted by the Court to the other workmen, the aforesaid Respondent Neelam moved the High Court first, got the Writ Petition withdrawn & moved for reference of the matter for industrial adjudication in 1993. 20. Taking into consideration the facts & circumstances of the case, Hon'ble Supreme Court in the aforesaid case (Haryana State Co- operative Land Development Bank vs. Neelam) held thus: "It is true that the Courts & tribunal having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim & 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 he entitled to relief. The procedural laws like estoppel, waiver & acquiescence are equally applicable to the industrial proceedings. The aim & 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 he entitled to relief. The procedural laws like estoppel, waiver & 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 10.08.1988." 21. So far as the present case is concerned, there is no evidence to the effect that the Petitioner has accepted an alternative employment or he has been gainfully employed anywhere else in the meantime after his termination. It is the positive finding 01 the Learned Labour Court that the Petitioner had worked for more than 240 days; he was not paid any notice pay & there has been violation of Section 25-F of the Act by the management. The ratio of the aforesaid case therefore can be distinguished so far as the present case is concerned. 22. The position that emerges from the discussions of the aforesaid decision may be summed up thus: (i) There is no limitation prescribed for reference of dispute to Labour Court & the Court cannot import a period of limitation when statute does not provide the same (ii) Although the Court cannot import a period of limitation when statute does not provide the same, it does not mean that irrespective of facts & circumstances .of the case, a stale claim must be entertained. (iii) The plea of delay raised by the employer/management is required .to be proved as a matter of fact by showing the real prejudice & not as a merely hypothetical defence. (iv) The prejudice on the part of the employer/management for impossibility on its part to produce record because of the delay: may make the dispute raised by the workman, a stale claim, especially when there is serious dispute or doubt regarding the relationship of employer & employee between the parties. (iv) The prejudice on the part of the employer/management for impossibility on its part to produce record because of the delay: may make the dispute raised by the workman, a stale claim, especially when there is serious dispute or doubt regarding the relationship of employer & employee between the parties. (v) Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts & circumstances of the case. No doubt the discretion is to be exercised judicially. (vi) Procedural law like estoppel, waiver & acquiescence are applicable to industrial proceedings & defence of delay can be substantiated on the ground of procedural law like estoppel, waiver & acquiescence. (vii) An industry has to carryon & if for any reason there has been a wholesale discharge of workmen & closure of the industry followed by its reopening & fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time in order to save the Industry from dislocation. 23. In the present case, Learned Labour Court has returned, positive finding to the effect that the Petitioner had worked continuously as a Store Keeper on N.M.R. basis under Opp. Party" No.2 management from 01.05.1982 to 01.04.1984; he had worked for more than 240 days by the time of his termination 01:1 01.04.1984; no compensation or notice pay was paid to him & there has been breach of provisions of Section 25- F of the Act by the management. Inspite of such positive findings, Learned Labour Court has dismissed the claim of the Petitioner on the ground of delay. In the present case, Opp. Party NO.2 management though raised the issue of limitation as a defence, said plea was a hypothetical plea & no substantive evidence is seemed to have been led & discussed by the Learned Labour Court to accept the plea of delay. The engagement of the Petitioner by Opp. Party No.2 management being an admitted fact & there being no material or evidence to show that because of delay records are not available with Opp. The engagement of the Petitioner by Opp. Party No.2 management being an admitted fact & there being no material or evidence to show that because of delay records are not available with Opp. Party NO.2 management to throw light so far as the engagement of the Petitioner is concerned, the claim of the Petitioner 'cannot be said to be a stale claim especially when reference was made on the ground of existence of a dispute. Regard being had to the position of law as discussed supra & the facts & circumstances of the case, the impugned award becomes vulnerable & is liable to be set aside. 24. In the fitness of things I would have remanded the metter back for disposal, afresh by the Learned, Labour Court but taking into consideration the plight of the poor workman & the time which has already been Consume a by adjudicative process, I deem it proper & in the ends of the justice to decide the matter hereby moulding the relief. In the result, the impugned order is set aside & direction is issued to the Opp. Party/ management to reinstate, the Petitioner without any back wages from 01.04.1984 till 24.09.1991 the date on which the dispute was raised. From 25.09.1991 till the date of reinstatement the Petitioner is entitled to get 50% of the back wages from the Opp. Party/management. The Writ Petition is accordingly disposed of.