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2023 DIGILAW 1383 (ALL)

Baij Nath Misra v. State Of U. P.

2023-05-22

ALOK MATHUR

body2023
JUDGMENT : 1. Heard Sri Ashish Kumar, Advocate holding brief of Sri Rahul Mishra, learned counsel for the petitioner as well as learned Standing Counsel for the State respondents and Sri P.K. Mishra, Advocate holding brief of Sri Sunil Kumar Misra, learned counsel for respondent no. 3. 2. By means of present writ petition the petitioner has challenged the judgment and award dated 07.11.2001, passed by the Labour Court, Allahabad which was published on 06.07.2002. 3. It has been submitted by learned counsel for the petitioner that petitioner was posted and working as Conductor in Mirzapur Depot and disciplinary proceedings were initiated by the respondent -U.P. State Road Transport Corporation, Rajapur, Allahabad (hereinafter referred to as "the U.P.S.R.T.C.") against petitioner and by means of order dated 16.07.1981, he was placed under suspension and on 21.08.1981, charge sheet was issued to him. The petitioner submitted reply which was not found satisfactory by the respondents and thereafter domestic enquiry was commenced and after giving opportunity of hearing to the petitioner an order for removal of his services was passed against petitioner on 18.09.1981 by Assistant Regional Manager. 4. Aggrieved by order dated 18.09.1981, petitioner preferred appeal before the Regional Manager, U.P.S.R.T.C. which was rejected. The petitioner being further aggrieved, by the appellate order, preferred second appeal before the Zonal Manager, East Zone, U.P.S.R.T.C., Varanasi who by means of order dated 30.05.1992, set aside the order of removal and reinstated the petitioner in service, but forfeited the wages during period of petitioner's unemployment. 5. The petitioner being aggrieved by the order of punishment dated 30.05.1992, raised industrial dispute through his Union before the Conciliation Officer, Allahabad alongwith delay condonation application. After hearing the parties, the delay was condoned by the Conciliation Officer by order dated 21.04.1994, but no settlement can be arrived at and failure report was submitted and reference was made which was registered as Case No. 7 of 1985. 6. The petitioner filed his claim and notices were issued to the U.P.S.R.T.C. who had put in appearance and opposed the claim of petitioner. Claim of petitioner was contested mainly on the ground of delay. 6. The petitioner filed his claim and notices were issued to the U.P.S.R.T.C. who had put in appearance and opposed the claim of petitioner. Claim of petitioner was contested mainly on the ground of delay. It was stated that petitioner was removed from service by means of order dated 30.09.1981 and subsequently second appeal filed by the petitioner was allowed by Chief General Manager on 30.05.1992, but the reference has been made only in 1995 and hence it is unreasonably long period of time for which petitioner's claim was barred by delay and laches and accordingly the Labour Court should reject the claim out rightly. 7. The Labour Court finding favour with the objection raised by the employer and also considering the fact that according to relevant provisions no time period is prescribed in the Industrial Disputes Act for raising an industrial dispute but three years time would be substantial period within which a claim can be made and petitioner has approached the Labour Court beyond period of three years hence the claim was barred by delay and laches. 8. Apart from rejecting claim of petitioner, the labour Cout has recorded that in the alleged facts stated by the workman in his claim, same cannot be accepted. In sum and substance claim of workman was rejected on the ground of limitation as well as merits though merit of the case was not even dealt with or discussed any where in the award. 9. Learned counsel for the petitioner submits that the impugned award is illegal and arbitrary inasmuch as there is no time frame within which reference can be made before the Labour Court and submits that otherwise also there was no delay on the part of petitioner in approaching the Labour Court. The petitioner preferred first and second appeal, the second appeal of petitioner was considered and allowed by the Zonal manager only in the year 1992. The Labour Court did not consider the fact that petitioner had participated in conciliation proceedings in 1994 itself and no settlement was arrived at and consequently reference was made to the State Government under Section 4K of the Industrial Disputes Act. It is submitted by learned counsel for the petitioner that had the Labour Court considered the aforesaid facts in right perspective, petitioner's claim could not have been rejected on the ground of limitation. It is submitted by learned counsel for the petitioner that had the Labour Court considered the aforesaid facts in right perspective, petitioner's claim could not have been rejected on the ground of limitation. He has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Sapan Kumar Pandit Vs. U.P. State Electricity Board (2001) 6 SCC 222 , where claim was made beyond the period of fifteen years and the Apex Court in such circumstances had set aside the order of Labour Court by observing the following :- "8. The above section is almost in tune with Section 10 of the Industrial Disputes Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time limit is fixed for making the reference for a dispute for adjudication, could any State Government revive a dispute which had submerged in stupor by long lapse of time and re-kindled by making a reference of it to adjudication? The words at any time as used in the section are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this sub-section itself to indicate that the time has some circumscription. The words where the Government is of opinion that any industrial dispute exists or is apprehended have to be read in conjunction with the words at any time. They are, in a way, complimentary to each other. The Governments power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression at any time terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference. 9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Governments power to make a reference would have extinguished. 9. Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Governments power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which lapsed since the inception of the dispute. That apart, a decision of the government in this regard cannot be listed on the possibility of what another party would think whether any dispute existed or not. The section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the government. If the government decides to make the reference there is a presumption that in the opinion of the government there existed such a dispute. 10. In considering the factual position whether the dispute did exist on the date of reference the Government could take into account factors, inter alia, such as the subsistence of conciliation proceedings. It is of no consequence that conciliation proceedings were commenced after a long period. But such conciliation proceedings are evidence of the existence of the industrial dispute. It is an admitted fact that on the date of reference in this case the conciliation proceedings were not concluded. If so, it cannot be said that the dispute did not exist on that day. 11. The High Court relied on the following observations of the decision of this Court in M/s Shalimar Works Ltd. vs. Their Workmen ( AIR 1959 SC 1217 ): It is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that dispute should be referred as soon as possible after they have arisen and particularly so when disputes relate to discharge of workmen wholesale, as in this case. 12. The context for making the said observations is while dealing with the scope of Section 33 A of the ID Act. It is a special provision for adjudication as to whether conditions of service have been changed by an employer during the pendency of conciliation or other adjudicatory proceedings. 12. The context for making the said observations is while dealing with the scope of Section 33 A of the ID Act. It is a special provision for adjudication as to whether conditions of service have been changed by an employer during the pendency of conciliation or other adjudicatory proceedings. 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. Evidently the context is different and hence the observations made by this Court in that context are not apposite so far as this case is concerned. 13. Learned counsel for the Board invited our attention to a recent decision of a two Judge Bench of this Court in Nedungadi Bank Ltd. vs. K.P. Madhavankutty and ors. { 2000 (2) SCC 455 }. No doubt in the said decision it is said that the power of the Government under Section 10 of the ID Act cannot be exercised at any point of time or for reviving the matters which have already been settled although law does not prescribe any time limit. The crux of the observations in the said decision is the following: A dispute which is stale could not be the subject matter of reference under Section 10 of the ID Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. 14. It is useful to refer to a three Judge Bench decision of this Court as it related to the scope of the very same provision i.e. Section 4K of the U.P. Act. In M/s. Western India Watch Co. Ltd. vs. The Western India Watch Co. Workers Union ( AIR 1970 SC 1205 ) learned Judges made the following observations: Therefore, the expression at any time, though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can at any time, i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. But the Government need not wait until such a procedure has been completed. In an urgent case, it can at any time, i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression at any time thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression at any time in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjourned or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence. 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 Section 4K 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. For the aforesaid reasons we allow this appeal and set aside the impugned judgment." 10. Learned counsel for the petitioner has also relied upon the judgment of Apex Court in the case of Ajaib Singh Vs. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Another, 1999 (82) FLR 137 (SC), where the Court in para 9 and 11 has observed/held as follows :- "9. Learned counsel for the petitioner has also relied upon the judgment of Apex Court in the case of Ajaib Singh Vs. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Another, 1999 (82) FLR 137 (SC), where the Court in para 9 and 11 has observed/held as follows :- "9. 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 hot 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. Reliance of the learned counsel for the respondent-management on the full bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, (1999) 1 SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases." However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate government to labour tribunals will be five years after which the government can refuse to make a reference on the ground of delay and latches if there is no explanation to the delay." We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 37-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the Legislature in its wisdom had, though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the Legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act. 10. In the instant case, the respondent-management is not shown to have taken any plea regarding delay as is evident from the issues framed by the labour court. The only plea raised in defence was that the labour court had not jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by High Court in writ proceedings, even without pleadings were, therefore, unjustified. The high Court was also not justified in holding that the courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. The high Court was also not justified in holding that the courts were bound to render an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the Act. Even after noticing mat "it is true that a fight between the workman and the management is not a just fight between equals," the court was not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the labour court which was not permissible in proceedings under Articles 226/227 of the Constitution. 11. We are, however, of the opinion that on account of the admitted delay, the labour court ought to have appropriately moulded the relief by denying the appellant-workman some part of the back wages. In the circumstances, the appeal is allowed, the impugned judgment is set aside by upholding the award of the labour court with modification that upon his reinstatement the appellant would be entitled to continuity of service, but back wages to the extent of 60 per cent with effect from 8.12,1981 when he raised the demand for Justice till the date of award of the labour court i.e 16.4.1986 and full back wages thereafter till his reinstatement would be payable to him. The appellant is also held entitled to the costs of litigation assessed at Rs. 5.000 to be paid by the respondent-management." 11. Considering the aforesaid judgment it is clear that no time period has been prescribed for making reference to the Labour Court but general principle of law pertaining to delay and laches would be complied with. 12. In the present case it is noticed that grievance of petitioner was redressed by filing second appeal which was allowed in 1992. Though petitioner was re-instated in service but his back wages were forfeited apart from certain other service benefits were also denied. 12. In the present case it is noticed that grievance of petitioner was redressed by filing second appeal which was allowed in 1992. Though petitioner was re-instated in service but his back wages were forfeited apart from certain other service benefits were also denied. The dispute was kept alive till the decision was taken in second appeal filed by the workman. The workman continuously contested his termination and there was no lapse on his part so as to presume latches on his part in approaching the Labour Court. 13. In the peculiar facts and circumstances of the present case, it cannot be said that there was any delay in approaching the Labour Court and accordingly considering the case law as referred herein above, the findings recorded by the Apex Court, the order of Labour Court is clearly illegal and arbitrary and is accordingly set aside. 14. Matter is remitted to the Labour Court for deciding claim of petitioner afresh on merits. 15. Considering that much time has lapsed since filing of reference, the Labour Court is directed to decide the case expeditiously and also considering the fact that all the material and evidence is already on record, let the matter be decided within a period of three months from the date of production of certified copy of this order. 16. All the parties shall cooperate in the proceedings before the Labour Court and shall not seek any unnecessary adjournments. 17. The writ petition stands allowed.