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2015 DIGILAW 354 (HP)

State of Himachal Pradesh v. Kripal Singh

2015-04-17

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The petitioners have questioned the award, dated 22.02.2011, passed by the learned Industrial Tribunal-cum-Labour Court, Dharamshala, H.P. mainly on two grounds which are: (a) limitation; and (b) application of Section 25-G of the Industrial Disputes Act, 1947. 2. Brief facts may be noticed. The respondent-workman worked as a Beldar intermittently from July 1997 up to April 2000 and thereafter was not permitted to join duties, though his juniors were retained. This position was disputed by the petitioners, who alleged that the respondent-workman abandoned the job of his own. The learned Industrial Tribunal-cum-Labour Court on the basis of the evidence produced on record, come to a conclusion that the services of the respondent had been wrongly terminated while his juniors had been retained. In this manner, the petitioners had violated the provisions of Section 25-G of the Industrial Disputes Act (for short ‘the Act’), which inter alia postulates the principle of “Last Come First Go”. The contention of the petitioners that the respondent had abandoned the job did not find favour with the Tribunal and consequently, the reference was partly allowed by holding the disengagement of the respondent to be illegal and he was directed to be reengaged forthwith. He was also held entitled to seniority and continuity of service from the date of his termination, but without back wages. 3. Mr. J.S. Rana, learned Assistant Advocate General has vehemently argued that the learned Tribunal below failed to take into consideration that the respondent was no longer in the service of the petitioners since April 2000, whereas he approached the learned Industrial Tribunal-cum-Labour Court only in the year 2006 and, therefore, his claim ought to have been dismissed on the ground of its being delayed and stale. 4. This contention of the petitioners cannot be accepted for the simple reason that it was in the year 2006 that the reference had been sent to the Court and no reference can be sent to the Court unless prior to the same there has been conciliation proceedings. Obviously the conciliation proceedings must also have taken time. Be that as it may, the provisions of the Limitation Act do not apply to such proceedings and, therefore, the question of delay in such circumstances hardly arises for consideration. In taking this view, I am fortified by the latest judgment of the Hon’ble Supreme Court in Raghubir Singh Vs. Obviously the conciliation proceedings must also have taken time. Be that as it may, the provisions of the Limitation Act do not apply to such proceedings and, therefore, the question of delay in such circumstances hardly arises for consideration. In taking this view, I am fortified by the latest judgment of the Hon’ble Supreme Court in Raghubir Singh Vs. General Manager, Haryana Roadways, Hissar (2014)10 Supreme Court Cases 301, wherein the Hon’ble Supreme Court had held as under: “10. The learned Additional Advocate General for the State of Haryana, Mr. Narender Hooda has vehemently contended that the Labour Court was right in rejecting the reference of the industrial dispute being on the ground that it was barred by limitation by answering the additional issue No. 2 by placing reliance upon the decision of this Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota v. Mohan Lal[1] wherein this Court has held as under:- “19. We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the Industrial Disputes Act, 1947, but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Assistant Engineer, Rajasthan Development Corporation and Anr. v. Gitam Singh (2013) 5 SCC 136 that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.” 11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate government ‘at any time’ may refer an industrial dispute for adjudication, if it is of the opinion that such an industrial dispute between the workman & the employer exists or is apprehended. Section 10(1) reads as follows: “10 Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute , whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication.” Thus, it is necessary for us to carefully observe the phrase ‘at any time’ used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant. 12. This Court in Avon Services Production Agencies (Pvt.) Ltd. v. Industrial Tribunal, Haryana & Ors.[2], after interpreting the phrases ‘at any time’ rendered in Section 10(1) of the Act, held thus:- “7…….Section 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.……The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.……The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function…” Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10(1) of the Act has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer. 13. Further, in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors.[3], it is held by this Court as under:- “15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section4K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.” (Emphasis laid by the court) 14. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.” (Emphasis laid by the court) 14. Therefore, in our considered view, the observations made by this Court in the Rajasthan State Agriculture Marketing Board case (supra) upon which the learned Additional Advocate General for the State of Haryana has placed reliance cannot be applied to the fact situation of the case on hand, for the reason that the Labour Court has erroneously rejected the reference without judiciously considering all the relevant factors of the case particularly the points of dispute referred to it and answered the 2nd issue regarding the reference being barred by limitation but not on the merits of the case. The said decision has no application to the fact situation and also for the reason the catena of decisions of this Court referred to supra, wherein this Court has categorically held that the provisions of Limitation Act under Article 137 has no application to make reference by the appropriate government to the Labour Court/Industrial Tribunal for adjudication of existing industrial dispute between workmen and the employer. 15. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra. 16. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra. 16. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager, Karnataka[4] it was held by this Court as follows- “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...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors. (supra)1993 AIR SCW 2214, 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.....” (Emphasis laid by the Court). 17. In view of the legal principles laid down by this Court in the above judgment, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute between the parties was made within a reasonable time, considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer. 18. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer. 18. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the workman merely on the ground of delay, stating that:- “10. 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 and that the relief under it cannot 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 and 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 in 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.....” (Emphasis laid by the Court) 19. Hence, we are of the opinion, having regard to the fact and circumstances of the case that there is no delay or latches on the part of the workman from the date of his acquittal in the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance given to the workman that he would be reinstated after his acquittal from the criminal case, the workman approached the conciliation officer and the State Government to make a reference to the Labour Court for adjudication of the dispute with regard to the order of dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant and the date on which he approached the conciliation officer by raising the dispute, since the respondent had not adhered to its assurance, the State Government had rightly referred the dispute for its adjudication. Keeping in mind the date of acquittal of the appellant and the date on which he approached the conciliation officer by raising the dispute, since the respondent had not adhered to its assurance, the State Government had rightly referred the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part of the appellant in raising the dispute and getting it referred to the Labour Court by the State Government.” 5. Now, in so far as the question of applicability of Section 25-G of the Act is concerned, it would be seen that in records produced by the petitioners themselves, it was established that one Lal Singh was appointed as Beldar on 10.01.2000 while Shaunu Ram was appointed on 01.09.2000, which was much after the respondent had been engaged by the petitioner. Admittedly, the services of these two workmen had not been disengaged at the time when the services of the respondent had been disengaged. Therefore, I see no infirmity in the award passed by the learned Tribunal below, whereby it invoked the provisions of Section 25-G of the Act and directed the reengagement of the respondent. 6. In view of the aforesaid discussions, there is no merit in this petition and the same is dismissed leaving the parties the bear their own costs.