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Madhya Pradesh High Court · body

2016 DIGILAW 687 (MP)

Dilip v. Commissioner M. P. Housing Board

2016-08-11

SANJAY YADAV

body2016
ORDER : Sanjay Yadav, J. 1. As common issues are involved in these batch of writ petitions under Article 227 of the Constitution of India, being directed against the Award passed by Labour Court, they are analogously heard and decided by this common order. 2. It being not in dispute that the workmen in these writ petitions were engaged with the Madhya Pradesh Housing Board in the year 1995 on daily wages. Their services were dispensed with in the year 2000. At the time of disengagement, the workmen were paid one month salary and the compensation computed as per the provisions contained under Section 25F of the Industrial Disputes Act, 1947 (for short 1947 Act'). It is also not in dispute that each of the workmen received the amount though paid through cheque. 3. It is also borne out from record that these workmen brought some proceedings against their disengagement in the year 2004, but did not pursue the same and withdrew the proceedings. That, after eight years from withdrawing the proceedings, these workmen raise industrial dispute on 26.5.2012 before the Labour Commission, wherein, with the failure of conciliation proceedings, the matter was referred to for adjudication before the Labour Court in 2013 vide order:: 4 :: dated 13.3.2013 passed by the State Government as to whether the dispensation of workmen was legal and if not, what relief they are entitled for. 4. The Labour Court after taking into consideration the admitted facts and after recording a finding that there is no plausible explanation tendered by the workmen of initiating the reference proceedings after eight years (This finding is borne out from paragraph 14 of the Award wherein the Labour Court records " 14 vfHkys[k ls ;g izdV gksrk gS fd vkosnd us o"kZ 2004 esa ekeyk okfil ysus ds mijkar yxHkx 8 o"kZ dk le; O;rhr gks tkus ds mijakr fn0 26-05-12 dks iqu% Jek;qDr ds le{k dk;Zokgh izkjaHk dh gS ,oa mDr 8 o"kksZ ds foyEc dk dksbZ Hkh larks"ktud dkj.k Hkh ugha crk;k x;k gSA " 5. The Labour Court also recorded the finding in paragraph 13 of the Award that the workmen having received the retrenchment compensation were to deposit 20% thereof to avail the benefit of State Government Circular dated 19.4.2014 so that their reinstatement can be considered; however, did not deposit the same. 6. The Labour Court also recorded the finding in paragraph 13 of the Award that the workmen having received the retrenchment compensation were to deposit 20% thereof to avail the benefit of State Government Circular dated 19.4.2014 so that their reinstatement can be considered; however, did not deposit the same. 6. The Labour Court, however, on a finding that the provisions of Section 25N of 1947 Act having not been complied with, directed for payment of compensation, instead of reinstatement and back-wages. 7. Both the workmen and the employer have filed the writ petitions. 8. The grievance raised on behalf of workmen is that the illegal termination being protected under the provisions of Sections 25F and 25N of 1947 Act, the Labour Court ought not to have confined the relief only to the extent of compensation. It is urged, that the Labour Court ought to have directed for their reinstatement with back-wages as they had worked for over 4½ years. 9. The employer, on its turn, seeks setting aside of the Award on the ground that the Labour Court having returned a finding of unexplained delay of eight years and that the retrenchment compensation was paid to respective workmen. And, the workmen having not deposited 20% of amount received in lieu of compensation to avail benefit of the instructions issued by the State Government, the Labour Court, it is urged, ought to have answered the reference against respective workmen. It is also urged that being not an industrial establishment under Section 25L of 1947 Act, the provisions contained under Chapter VB of 1947 Act are not applicable to the Madhya Pradesh Housing Board, therefore, the findings that Section 25N of 1947 Act has not been complied with, besides being perverse, will have no adverse effect, as the provisions of Section 25F was duly complied with. 10. Considered the rival submissions. 11. As to the applicability of Section 25N under Chapter VB which relates to "Special Provisions Relating to Lay-off, Retrenchment and Closure In Certain Establishment", Section 25L defines "industrial establishment" in the following terms : "25L. 10. Considered the rival submissions. 11. As to the applicability of Section 25N under Chapter VB which relates to "Special Provisions Relating to Lay-off, Retrenchment and Closure In Certain Establishment", Section 25L defines "industrial establishment" in the following terms : "25L. Definitions.- For the purposes of this Chapter, - (a) "industrial establishment" means dash; (i) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948); (ii) a mine as defined in clause (j) of sub-section (1) of Section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); (b) notwithstanding anything contained in sub-clause (ii) of clause (a) of Section 2,- (i) in relation to any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or (ii) in relation to any corporation not being a corporation referred to in sub-clause (i) of clause (a) of section 2 established by or under any law made by Parliament, the Central Government shall be the appropriate Government." 12. The Madhya Pradesh Housing Board is a body corporate constituted under the provisions of the Madhya Pradesh Griha Nirman Mandal Adhiniyam, 1972 (presently the organization is known as 'Madhya Pradesh Griha Nirman Evam Adhosanrachana Vikas Mandal Adhiniyam, 1972') and is neither a 'factory' as defined under the Factories Act, 1948, nor 'mines' as defined under the Mines Act, 1952, nor 'plantation' as defined under the Plantations Labour Act, 1951 as would attract the provisions of Section 25N or any of the provisions contained under Chapter VB of 1947 Act. Therefore, the conclusions arrived at by Labour Court as to non-compliance of Section 25N is of no consequence, so far as the Madhya Pradesh Housing Board is concerned and therefore, cannot be given the stamp of approval. 13. Next question is as to whether the delay of eight years in raising the dispute which the Labour Court finds unexplained, would justify the Award of compensation. In other words, whether an unexplained delay of eight years would lead to an inference whether an industrial dispute is alive at such a distant date. 14. 13. Next question is as to whether the delay of eight years in raising the dispute which the Labour Court finds unexplained, would justify the Award of compensation. In other words, whether an unexplained delay of eight years would lead to an inference whether an industrial dispute is alive at such a distant date. 14. The issue came up for consideration before the Supreme Court in Prabhakar v. Joint Director, Sericulture Department : Special Leave Petition (Civil) No.27080/2015 (Arising out of SLP(C) No.CC 16129 of 2015) dated 7.9.2015, wherein their Lordships were pleased to observe : "40. On the basis of aforesaid discussion, we summarise the legal position as under: An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. The words 'industrial dispute exists' are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre - condition. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre - condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti . For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute ceased to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted. 41. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 42. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 42. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry." 15. When the matter in hand is examined in the light of the principle laid down in Prabhakar (supra) and the finding by the Labour Court that the workmen have failed to givecogent and convincing explanation for the delay of eight years in raising the dispute and the fact that retrenchment compensation was duly paid and accepted by respective workmen. And, that the provisions of Section 25N of 1947 Act are not applicable to the Madhya Pradesh Housing Board, the impugned Award cannot be upheld and, therefore, set aside. 16. Consequently, WP-6214-2016, WP-6218-2016, WP- 6922-2016, WP-6927-2016, WP-10170-2016 and WP-10171- 2016 preferred by the respective workmen, are dismissed. Whereas, WP-9102-2016, WP-9105-2016, WP-9106-2016, WP- 9107-2016, WP-9108-2016 and WP-9109-2016 filed by the Employer, are allowed in above terms. There shall be no costs. Let a copy of this order be retained in these batch of writ petitions.