JUDGMENT : Heard Mr. C. Barua, learned Sr. Counsel, assisted by Mr. D. Boro, learned counsel for the petitioner and Mr. D. Mazumdar, learned Sr. Counsel, assisted by Mr. R. Sarma, learned counsel for the respondent No. 2. 2. Petitioner is the management of Tingalibam Tea Estate and respondent No. 2 is the workman. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of award dated 29.06.2009 passed by the learned Labour Court, Dibrugarh in Reference Case No. 14/2006 answering the reference in favour of the workman and directing payment of backwages while declining reinstatement because of intervening superannuation. 4. Relevant facts of the case may be stated in a nutshell to have a proper perspective of the dispute raised in this proceeding. 5. Respondent No. 2 was a Computer Operator in the Tea Estate of the petitioner. On the charge of misappropriation of money, a domestic enquiry was held against respondent No. 2 following which he was dismissed from service on 05.02.1991. According to respondent No. 2, he was not served with a copy of the dismissal order and therefore he was unaware of such dismissal. At that time he was also on leave on account of illness. 6. In the meanwhile, he had instituted a proceeding before the Labour Court, Dibrugarh under Section 33 C (2) of the Industrial Disputes Act, 1947 (Act) claiming monetary benefit of Rs. 7,632.00 from the management. This application was registered as Misc. Case No. 1/1991. 7. On 25.03.1991 when respondent No. 2 had gone to the Tea Estate to rejoin duty after recovering from illness he was not allowed to join his duty by the management on the ground that he was already terminated from service. This led respondent No. 2 to file a petition under Section 33A of the Act before the Labour Court, Dibrugarh alleging alteration in his service condition during pendency of a subsisting reference. The second application was registered as Misc. Case No. 7/1991. 8. Misc. case No. 1/1991 was disposed of by the Labour Court by awarding claim of Rs.7,632.00 to be paid by the management to respondent No. 2 which was satisfied by the management. 9. Misc. The second application was registered as Misc. Case No. 7/1991. 8. Misc. case No. 1/1991 was disposed of by the Labour Court by awarding claim of Rs.7,632.00 to be paid by the management to respondent No. 2 which was satisfied by the management. 9. Misc. Case No. 7/1991 was thereafter allowed by the Labour Court on 23.07.1993 by holding that management had contravened the provisions of Section 33 of the Act and therefore the workman was required to be reinstated in service with all backwages. 10. Aggrieved by the aforesaid order of the Labour Court, management moved this Court by filing Civil Rule No. 2640/1993. This Court passed an interim order on 08.04.1994 directing the management to pay the last drawn wages to the workman during the pendency of the writ petition under Section 17 B of the Act. 11. Civil Rule No. 2640/1993 was allowed by this Court vide order dated 12.11.1997 quashing the award dated 23.07.1993 and remanding the matter back to the Labour Court for a fresh decision in accordance with law. 12. On remand, Labour Court passed order dated 05.11.2003 rejecting the petition filed by the workman under Section 33 A holding that the earlier petition filed under Section 33 C (2) was not a petition relating to a pending industrial dispute. 13. Thereafter, the workman approached the Assistant Labour Commissioner, Sivasagar on 29.01.2004 raising an industrial dispute and for conciliation of the same. Conciliation proceeding having failed, Assistant Labour Commissioner submitted failure report to the appropriate Government i.e. the Government of Assam in the Labour and Employment Department suggesting making of a reference to the Labour Court. 14. On 03.07.2006, Government of Assam in the Labour and Employment Department made a reference to the Labour Court, Dibrugarh under Section 10(1)(C) of the Act for adjudication of the industrial dispute as per schedule to the reference which reads as under:- “ 1. Whether the Management of Tingalibam Tea Estate is justified in dismissing their workman Shri Ananda Saikia with effect from 05.02.1991? 2. If not whether he is entitled for reinstatement with full wages and other benefits with retrospective effect?” 15. On receipt of the reference, the same was registered as Reference Case No. 14/2006. On receipt of notice, both the sides appeared and submitted written statement. 2. If not whether he is entitled for reinstatement with full wages and other benefits with retrospective effect?” 15. On receipt of the reference, the same was registered as Reference Case No. 14/2006. On receipt of notice, both the sides appeared and submitted written statement. After hearing the matter, Labour Court passed the award dated 29.06.2009 answering issue No. 1 in favour of the workman. However, it was found from the evidence on record that the workman had already attained the age of superannuation on 14.08.2006. Therefore re-instatement was ruled out. However, it was held that the workman would be entitled to receive the arrear backwages. It is against this award dated 29.06.2009 that the present writ petition has been filed. 16. Mr. Barua, learned Sr. Counsel for the management submits that first of all there was delay in making the reference. Burden was on the workman to explain the delay but the Labour Court unfairly placed the burden on the management and thereby committed a grave error which has vitiated the impugned award. Second limb of challenge of Mr. Barua is that the issue of dismissal of the workman was clearly barred by the principle of res-judicata as it was gone into by the Labour Court in the previous reference. He also submits that because of the delay, management could not produce the relevant evidence in support of its case and in such circumstances, delay can be said to have had a definite impact on the validity of the proceeding before the Labour Court. In support of his submissions, Mr. Barua has placed reliance on the following decisions:- (2005) 5 SCC 131 [Arvind Mohan Johri & Anr. Vs. State of UP & Anr.] (2005) 5 SCC 124 [Allahabad Jal Sansthan Vs. Daya Shankar Rai & Anr.] (2009) (2) SCC 288[Managing Director, Balasaheb Desai Sahakari S. K. Ltd. Vs. Kashinath Ganapati Kamble] 17. On the other hand, Mr. Mazumdar, learned Sr. Counsel for respondent No. 2 submits that there is no question of delay in raising the industrial dispute by the respondent No. 2. He submits that against the dismissal order dated 05.02.1991 petitioner had moved the Labour Court by filing a petition under Section 33 A of the Act on 25.03.1991. This petition was finally dismissed by the Labour Court on 05.11.2003. He submits that against the dismissal order dated 05.02.1991 petitioner had moved the Labour Court by filing a petition under Section 33 A of the Act on 25.03.1991. This petition was finally dismissed by the Labour Court on 05.11.2003. Thereafter, respondent No. 2 approached the Assistant Labour Commissioner on 29.01.2004 raising an industrial dispute and seeking conciliation. Therefore, as would be evident from the above, within a period of less than 90 days from the dismissal of the petition filed under Section 33 A of the Act by the Labour Court, respondent No. 2 had raised the industrial dispute. So there is no delay on the part of respondent No. 2 in raising the industrial dispute relating to his dismissal. On the question of res-judicata, he submits that scope of a petition under Section 33A and that of a reference under Section 10(1)(C) are entirely different. In the proceeding under Section 33 A, the Labour Court was primarily concerned with the complaint of the workman that his service condition was altered during the pendency of a subsisting proceeding. On the other hand, in the reference under Section 10(1)(C), it is the legality and validity of the dismissal of the workman which was under consideration. Therefore, there can be no question of any res-judicata on the adjudication of dismissal of respondent No. 2 by the Labour Court vide the impugned award. In support of his submissions, Mr. Mazumdar has placed reliance on the following decisions:- (2007) 9 SCC 109 [Dharappa Vs. Bijapur Corporation Milk Producers Societies Union Ltd.] (2014) 10 SCC 301 [Raghubir Singh Vs General Manager, Haryana Roadways, Hissar] 18. In his reply submissions, Mr. Barua, learned Sr. Counsel submits that even if challenge to the impugned award is negatived by the Court, considering the fact that the workman did not render any productive service to the management it may not be just and proper to direct payment of full backwages to the workman. In a case of this nature, directing payment of 50% of the backwages would be just, proper and adequate. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. Decisions cited at the Bar have also been considered. 20. Since Mr. Barua has primarily based his arguments on two grounds, those may be taken up at the outset. 21. Firstly, the issue of limitation may be taken up. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. Decisions cited at the Bar have also been considered. 20. Since Mr. Barua has primarily based his arguments on two grounds, those may be taken up at the outset. 21. Firstly, the issue of limitation may be taken up. The facts relating to making of the reference by the appropriate Government on 03.07.2006 have already been noticed. Though the petitioner was dismissed from service on 05.02.1991 the same was brought to the notice of the Labour Court on 25.03.1991 by the workman by filing a petition under Section 33 A of the Act. Initially the petition was allowed by the Labour Court but the same was set aside by this Court and the matter was remanded back to the Labour Court for a fresh decision whereafter the Labour Court dismissed the said petition on 05.11.2003. After such dismissal, respondent No. 2 approached the Assistant Labour Commissioner on 29.01.2004 raising an industrial dispute which ultimately led to making of the reference by the appropriate Government on 03.07.2006. Therefore, from the sequence of events as noticed above, it is evident that respondent No. 2 could not have raised parallel industrial dispute before the Assistant Labour Commissioner during the period when his petition under Section 33 A of the Act was pending adjudication before the Labour Court. It was only after dismissal of the said petition that he could approach the appropriate authority, in this case, the Assistant Labour Commissioner, raising an industrial dispute which he did on 29.01.2004. Thus, within 90 days, respondent No. 2 raised the industrial dispute before the appropriate forum. So, on the above factual premises, it cannot be said that there was delay and laches on the part of the workman in raising the industrial dispute. As noticed above, thereafter the appropriate Government made the reference on 03.07.2006. 22. A perusal of the provisions of Section 10(1) of the Act would show that existence of an industrial dispute or apprehension of an industrial dispute is the sine qua non for making of a reference under Section 10(1) of the Act. If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time make a reference. 23. If the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time make a reference. 23. This Court in the case of Secretary, Assam Tea Workers Union Vs Baghjan Tea Estate reported in 2014 (4) GLT 517 has held that if in the opinion of the appropriate Government an industrial dispute exists or is apprehended, delay becomes immaterial. The Hon’ble Supreme Court in the case of Raghubir Singh (supra) while examining the expression “at any time” occurring in Section 10(1) of the Act has held that provisions of the Limitation Act, 1963 have no application while making a reference for adjudicating an industrial dispute between the workman and the management. Delay cannot be a ground for denying relief to a workman as long as the industrial dispute does not become stale or because delay has resulted in loss or unavailability of materials evidence. Otherwise reference of industrial dispute to the Labour Court should not be declined. In any case, from the fact situation as narrated above, it is evident that there was no delay on the part of the workman in raising the industrial dispute. So this ground of attack of the petitioner stands repelled. 24. Coming to the ground of res-judicata, it may be mentioned that the earlier petition filed by the workman before the Labour Court was under Section 33 A of the Act. A perusal of the said provision would go to show that it is a special provision which can be invoked by the workman where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Labour Court, Tribunal etc. Section 33 provides that conditions of service etc. of a workman would remain unchanged during pendency of proceedings in connection with an industrial dispute. Initially the Labour Court had allowed such petition of the workman but following the intervention of this Court, such petition was subsequently rejected. Rejection of such petition would imply that service condition of the workman was not altered during the pendency of the subsisting proceeding or there was no contravention of Section 33. On the other hand, following raising of industrial dispute, reference was made by the appropriate Government to the Labour Court under Section 10(1) (C) of the Act on the question of validity of the dismissal of the workman from service. On the other hand, following raising of industrial dispute, reference was made by the appropriate Government to the Labour Court under Section 10(1) (C) of the Act on the question of validity of the dismissal of the workman from service. The nature of proceedings under both the provisions are significantly different. In the earlier proceeding the challenge to the dismissal order was on the ground of violation of Section 33 of the Act whereas in the later proceeding, the challenge to the dismissal order was on merit. In a situation such as this neither the principle of res-judicata nor that of constructive res-judicata can be said to be attracted. Accordingly, the challenge made to the impugned award on the ground of being hit by the principle of res-judicata is rejected. 25. From a perusal of the materials on record, it is seen that petitioner in the written statement did not categorically state that because of delay in the registration of the reference the material evidence had been lost or had become untraceable. Stand taken in the written statement was that those were presumed to have been lost. Therefore, it was only a presumption. No definite stand was taken that material evidence had been lost or had become untraceable. In fact, the Labour Court in the impugned award has held that the management had failed to adduce any evidence to prove that the domestic enquiry held by it leading to dismissal of the workman was valid. The charge-sheet, enquiry report etc. were not adduced as evidence before the Labour Court nor was the enquiry officer or any of the management witnesses presented. Therefore, the management could not justify validity of the domestic enquiry. On the basis of the materials on record the Labour Court held that the enquiry officer did not allow the workman to cross-examine some of the management witnesses during the domestic enquiry which was in violation of the principles of natural justice. Accordingly, the Labour Court held that management did not follow the principles of natural justice while conducting the domestic enquiry and hence the domestic enquiry was not valid. It is a settled proposition of law that any action which is in violation of the principles of natural justice would be void. Therefore, the domestic enquiry was rightly held to have been conducted in violation of the principles of natural justice by the Labour Court. 26. It is a settled proposition of law that any action which is in violation of the principles of natural justice would be void. Therefore, the domestic enquiry was rightly held to have been conducted in violation of the principles of natural justice by the Labour Court. 26. On the merit of the challenge to the order of dismissal, the management did not adduce any evidence. On the other hand, from the evidence adduced by the workman alongwith the stand taken in the written statement, the Labour Court found that there was no misappropriation of money belonging to the management by respondent No. 2. Some workman of the tea estate had opened recurring deposit accounts in the post office. Since they had difficulty in visiting the post office to deposit money, they had entrusted respondent No. 2 to make their deposits. So the question of misappropriation of money belonging to the management by respondent No. 2 did not arise. None of the workman had alleged that respondent No. 2 had defalcated their money. Accordingly, it was held that the management was not justified in dismissing the workman from his service. 27. On the question of re-instatement, it was found by the Labour Court that the workman had already attained the age of superannuation on 14.08.2006. Therefore, question of re-instatement in service did not arise. Having regard to the finding as regards the charge against respondent No. 2 and the evidence of the workman that he was paid the last drawn wages as per the order of this Court in Civil Rule No. 2640/1993, order for payment of arrear backwages was passed. Labour Court also recorded that there was nothing in the evidence to show that the workman was gainfully employed during the intervening period. 28. Mr. Mazumdar, learned counsel for respondent No. 2 submits that following order passed by this Court on 08.04.1994 in Civil Rule No. 2640/1993, respondent No. 2 continued to receive the last drawn wages from 13.04.1994 till 01.12.1997. 29. On the issue of payment of backwages on re-instatement in the context of an industrial dispute under the Act, the Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 observed as follows:- “ 22. 29. On the issue of payment of backwages on re-instatement in the context of an industrial dispute under the Act, the Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 observed as follows:- “ 22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 30. In view of the above, contention advanced on behalf of the petitioner that only 50% of the backwages should be allowed is wholly untenable and cannot be accepted. 31. In view of the above, contention advanced on behalf of the petitioner that only 50% of the backwages should be allowed is wholly untenable and cannot be accepted. 31. In the circumstances, Court is of the unhesitant view that the challenge to the impugned award is without any merit and deserves to be dismissed. Accordingly, the writ petition is dismissed but without any order as to cost.