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2020 DIGILAW 200 (ALL)

Shanti Devi Tripathi v. State of U. P.

2020-01-18

MANOJ KUMAR GUPTA

body2020
JUDGMENT : Manoj Kumar Gupta, J. 1. The petitioner has called in question an order dated 16.9.2009 in C.P. Case No. 14 of 2004, and another dated 15.10.2016 contained in Letter No. 4966/PiP-I.R./16 by Deputy Labour Commissioner, Mirzapur Division, Pipri, Sonebhadra. He has also prayed for a mandamus commanding the Deputy Labour Commissioner to refer the dispute between the parties for adjudication by Labour Court. 2. The background facts leading to the instant petition are that Ramjag Tripathi, late husband of the petitioner (hereinafter referred to as the 'workman'), was a Clerk on probation in Primary section of Hindalco Primary School, Renukoot. The said Institution is run by a separate Management, distinct from Hindalco Industries Limited, which is a company incorporated under the Indian Companies Act. By order dated 15.9.1975, the Management of the Institution informed him that his services were no more required since after 20th September, 1975. Oh 4.1.2003, after a gap of 28 years, the workman made an application to the President, Hindalco, alleging that he had made repeated representations to the authorities regarding illegal retrenchment of his service, but no heed was paid. In the meantime, he had attained the age of superannuation, i.e. 60 years and consequently, he should be deemed to have retired. It was also claimed that since his retrenchment was illegal, therefore, all his dues be paid, treating him to have retired on the date of superannuation. The workman thereafter filed Writ Petition No. 2035 of 2003 before this Court, which was dismissed by order dated 1.5.2003, holding that he had alternative remedy of approaching the Labour Court. The workman thereafter filed an application dated 31.5.2003, alleging illegal retrenchment at the hand of the Management. It was admitted in the application that the retrenchment was made on 15.9.1975 and there was delay of 27 years 18 days in approaching the authorities under the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the 'the Act'), but the said delay was sought to be explained by alleging that in the meantime he had been making repeated written and oral representations to the Employer to reinstate him in service and they also kept assuring him of the same. However, when he could not get any relief from the Management, he had approached the authorities. However, when he could not get any relief from the Management, he had approached the authorities. It seems that upon filing of the said application, a case was registered before the Conciliation Officer, bearing C.P. Case No. 14 of 2004. The respondent-company filed objection contending that the claim made by the workman in his application was totally false, fabricated and devoid of correct facts. He had approached the authorities after 28 years of his alleged retrenchment. After lapse of such long time, the Management was not retaining any record or evidence. The delay was fatal and accordingly the matter be consigned to record. In other words, the objection was that there was no live dispute in existence in the year 2003 about alleged illegal retrenchment done in the year 1975. 3. On 3.7.2004, the Conciliation Officer passed order to the effect that the delay in approaching the authorities under the Act is condoned and fixed 17.7.2004 for producing evidence by the parties. The Company sought to challenge the said order by filing an appeal before Labour Commissioner, Kanpur, contending that the order dated 3.7.2004 condoning delay was wholly illegal, as there was no live dispute in existence. It is noteworthy that the appeal filed by the Management was more in the shape of representation to higher authority as under law, no appeal against such order is contemplated. Thereafter, it seems that the matter remained pending before the Conciliation Officer and ultimately on 16.9.2009 the Assistant Labour Commissioner (Conciliation Officer) vide letter dated 16.9.2009 (impugned herein) held that there is no evidence before him to explain such long delay of 28 years and in his opinion, the matter should be consigned to record. The State Government accepted the recommendation made by the Conciliation Officer and passed an order on 8th October, 2009, declining to make reference of the alleged dispute to the Labour Court. The reason disclosed in the order is gross delay of 27 years on the part of the workman in raising the dispute. The petitioner, who is widow of the deceased workman, filed an application dated 23.9.2016, once again making request for reference of the dispute to the Labour Court. The reason disclosed in the order is gross delay of 27 years on the part of the workman in raising the dispute. The petitioner, who is widow of the deceased workman, filed an application dated 23.9.2016, once again making request for reference of the dispute to the Labour Court. The Deputy Labour Commissioner, Mirzapur Region, Pipri, Sonebhadra vide impugned letter dated 15.10.2016 informed the petitioner that C.P. Case No. 14 of 2004 had been consigned to record and the request for reference of dispute was declined long back and the same was also duly communicated vide letter dated 8.10.2019 through the Deputy Labour Commissioner. Consequently, it was not possible to accept the request contained in the application dated 23.9.2016. 4. Learned Counsel for the petitioner submitted that the stand taken by the authorities in declining to make reference to the Labour Court is not sustainable in law, inasmuch as there is no limitation prescribed under the Act for raising the dispute. It is submitted that expression "at any time" employed in section 4-K of the Act is conclusive of the legislative intent. In support of his submission, he has placed reliance on a judgment of Supreme Court in Sapan Kumar Pandit v. Uttar Pradesh Electricity Board 2001(90) FLR 754 (SC) He further submitted that initially the Conciliation Officer passed a specific order condoning the delay and therefore, after holding the conciliation proceedings for number of years, it was not open to the Conciliation Officer to make recommendation against the workman. It is also submitted that the State Government erred in acting upon the recommendation made by the Conciliation Officer in declining to make reference. 5. On the other hand, learned Counsel for respondent No. 6 submitted that the Institution, nor the Committee of Management of the Institution was made party to the conciliation proceedings, nor even before this Court and on this ground alone, the claim now sought to be agitated ought to be rejected. He further submitted that there was gross delay on part of the workman in approaching the authorities under the Act. In between, there was never any representation from the workman, nor any such evidence was filed before the authorities. It is submitted that the only written representation received by the Management was dated 4.1.2003, which 'he workman made after he attained the age of 60 years, praying for release of his dues. In between, there was never any representation from the workman, nor any such evidence was filed before the authorities. It is submitted that the only written representation received by the Management was dated 4.1.2003, which 'he workman made after he attained the age of 60 years, praying for release of his dues. It is further submitted that in the aforesaid background, the Institution did not retain record of a workman who was engaged on probationary basis and whose service was later dispensed with within a short period. This is an additional ground for rightly not accepting the claim of the workman for reference of dispute to the Labour Court at such distance of time. He has placed reliance on judgment of Supreme Court in Prabhakar v. Joint Director, Sericulture Department and another, 2015 (147) FLR 341 (SC) and various judgments of this Court. 6. The facts are not much in dispute. The workman was working as a Clerk in Primary section of Hindalco Primary School, Renukoot. He was informed by letter dated 15.9.1975 that his services were no more required since after 20th September, 1975. Although it is the case of the workman that he made several representations, as well as oral requests to the Management for his reinstatement, but not a single written representation, as allegedly made by him, has been brought on record. The only representation is dated 4.1.2003, which he made to the President, Hindalco, alleging that he was wrongly retrenched from service in the year 1975 and now since he had attained the age of superannuation, his dues be paid. It was followed by filing of Writ Petition No. 2035 of 2003, resulting in dismissal on 1.5.2003. The workman thereafter moved application dated 31.5.2003 before the Assistant Labour Commissioner, raising the dispute, on basis of which C.P. Case No. 14 of 2004 was registered. It is evidently clear that the matter was agitated by the workman by approaching the Management and then this Hon'ble Court by way of a writ petition, followed by application before Deputy Labour Commissioner, resulting in registration of C.P. Case No. 14 of 2004 for the first time in the year 2003. During this long 28 years which passed in between, there is no explanation worth accepting so as to hold that the workman had been continuously agitating against his alleged retrenchment. During this long 28 years which passed in between, there is no explanation worth accepting so as to hold that the workman had been continuously agitating against his alleged retrenchment. Moreover,-there is also no evidence to show that during this period, the Management ever gave any assurance to him for his reinstatement in service. Learned Counsel for the respondent rightly pointed out that the workman filed application dated 4.1.2003 after he attained 60 years of age as he was only interested in wages and not in working in the Institution. It seems that for such reason, he maintained complete silence until he attained the age of superannuation and then started agitating the matter. It is also nowhere asserted that during this period he remained idle or was not gainfully employed. 7. In Prabhakar, the Supreme Court after considering various previous decisions, summarized the legal position in paragraph-42 of the Law Report as under:-- "42. On the basis of aforesaid discussion, we summarise the legal position as under: 42.1 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 2-A 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. 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. 42.2 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. 42.3 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 seized 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. 42.4 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. 42.4 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 2-A 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. 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. 42.5 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. 42.6 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 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." 8. Although it is clear that there is no limitation prescribed for seeking reference of a dispute to Labour Court, but it is also a sine qua non for referring any dispute to Labour Court that on the date of reference, industrial dispute should be in existence. The workman by maintaining complete silence for 28 years had unequivocally given up his alleged claim, if any. The Management was also right in taking a stand that serious prejudice would be caused to it in case reference is made at this distance of time, inasmuch as it had not been in possession of any record of an employee who remained in service on probationary basis for a short period and who never agitated the issue after dispensation of his services. Even before this Court, as noted above, no material has been placed to show that there was any representation in writing by the workman to the Management, complaining about his alleged illegal retrenchment. The alleged dispute therefore ceased to exist and the claim sought to be raised by the workman in the year 2003 was a dead claim, a stale one, not worthy of reference to the Labour Court and this Court finds no illegality in the stand taken by the respondent authorities in declining to refer the matter to the Labour Court. 9. The proceedings before the Conciliation Officer are administrative in nature and are not judicial proceedings. He only has the power to facilitate reconciliation between the parties. He does not possess adjudicatory powers. The initial order passed by the Conciliation Officer on the application of the workman that delay is condoned and thereafter notice is issued, calling upon the parties to file their evidence, was not an order which could operate as res judicata, so as to prevent the Conciliation Officer, after the parties had led evidence, to arrive at the conclusion that the dispute is not a live one, worthy of being referred to the Labour Court. Thus, this Court finds no force in the submission of learned Counsel for the petitioner that once the Conciliation Officer at initial stage condoned the delay in approaching him, he could not have made an adverse recommendation to the State Government for not referring the dispute to Labour Court on ground of delay. Even otherwise, the State Government is not bound by the recommendation made by the Conciliation Officer. It is competent to take its own independent view as to whether on basis of material brought before it, there exists any dispute in praesenti, worthy of reference to the Labour Court and if it comes to the conclusion that there is no such material, it is fully competent in declining to make reference, as in the instant case. Consequently, this Courts finds no illegality in the impugned orders to warrant interference in exercise of writ jurisdiction under Article 226 of the Constitution. 10. The petition lacks merit and is dismissed.