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2023 DIGILAW 213 (CAL)

General Manager v. R. Alangaram

2023-02-09

RABINDRANATH SAMANTA, SUBRATA TALUKDAR

body2023
JUDGMENT : SUBRATA TALUKDAR, J. 1. This appeal arises out of the Order of the Hon’ble Single Bench dated 17th of December, 2019 in WP No. 268 of 2019. By the said impugned order, the Hon’ble Single Bench permitted the present respondents, who are employees of Andaman & Nicobar Island Integrated Development Corporation Limited (for short the ANIIDCO), to receive the benefit of the Office Memorandum dated 7th June, 1988 entitling the respondents to receive their arrear benefits for the period between 1994 to 2000 during which they worked as casual labour (at the rate of 1/30th of the minimum pay scale plus dearness allowance) before being subsequently regularised by ANIIDCO w.e.f. 2000. 2. The primary question which arises in this appeal and also arose before the Hon’ble Single Bench is whether the claim of the present respondents, as stated above, is barred by delay and/or is stale. A related question also arises in this appeal as to whether the present respondents are fence-sitters and hence not eligible to the relief as claimed under the Memo dated 7th of June, 1988. 3. Ms. Anjili Nag, Learned Counsel appearing for the appellants, the General Manager, ANIIDCO Limited, would submit that the present respondents waited till 2012 for the adjudication of a similar issue to be concluded right upto the Hon’ble Apex Court. It is submitted that a section of casual employees under ANIIDCO first brought a reference under the Industrial Disputes Act, 1947 (for short, the 1947 Act) before the Learned Labour Court, Andaman & Nicobar Islands at Port Blair. The parties to the First Reference were 33 employees and they claimed payment of the 1/30th of the minimum pay of the relevant pay scale plus dearness allowance under the Memo dated 7th of June, 1988. 4. Ms. Nag submits that the said Reference, hereinafter called the First Reference, was decided by the Learned Labour Court on the 19th of September, 2008 in favour of the workmen. The same was challenged before the Hon’ble Single Bench of the High Court sitting in Circuit at Port Blair in WP No. 081 of 2009. By the Judgment and Order dated 17th June, 2011, the Hon’ble Single Bench decided the writ petition in favour of the respondents/the workmen. 5. The matter was carried upward by the employer ANIIDCO represented by its General Manager before the Hon’ble Division Bench in FMA 005 of 2011. By the Judgment and Order dated 17th June, 2011, the Hon’ble Single Bench decided the writ petition in favour of the respondents/the workmen. 5. The matter was carried upward by the employer ANIIDCO represented by its General Manager before the Hon’ble Division Bench in FMA 005 of 2011. By the Judgment and Final Order dated 3rd February, 2012, the Hon’ble Division Bench again decided in favour of the respondents/the workmen. However, the Hon’ble Division Bench was pleased to clarify that the Award of the Learned Labour Court dated the 19th of September, 2008 (supra) shall be confined only to the respondents/the workmen who were represented before the Learned Labour Court and hence were also before the Hon’ble Single Bench and the Hon’ble Division Bench. Accordingly, the benefit of 1/30th of the minimum pay scale plus dearness allowance stood extended only to the said workmen whose cause was espoused by the Union before the Learned Labour Tribunal by declaring the same not to be in the nature of a precedent. 6. Ms. Nag would submit that following the decision of the Hon’ble Division Bench (supra) by subsequent administrative orders dated 9th May, 2012, 6th June, 2012 and 28th August, 2012, the benefit of 1/30th of minimum pay scale plus dearness allowance was extended in favour of the concerned workmen who were before the Learned Labour Court by way of the First Reference. 7. It is submitted that the present respondents/the workmen woke up in 2014 and claimed equal benefits of 1/30th of the minimum pay scale plus dearness allowance as conferred by the Memorandum dated 7th June, 1988. Upon the refusal of the Board of Directors of ANIIDCO to extend the benefits to the present respondents/the workmen at its 122nd Meeting dated 24th of July, 2014, an industrial dispute was raised resulting in a Conciliation Proceeding held on 9th of January, 2013. The Conciliation Proceeding was held between the Management of ANIIDCO and ANIIDCO Employees Solidarity Union representing the present respondents/the workmen. 8. Since the Conciliation Proceeding ended in failure, the matter arrived by way of a Reference (hereinafter referred to as the Second Reference) before the Learned Presiding Officer, Labour Court, Andaman & Nicobar Islands at Port Blair in ID Case No. 07 of 2014. 8. Since the Conciliation Proceeding ended in failure, the matter arrived by way of a Reference (hereinafter referred to as the Second Reference) before the Learned Presiding Officer, Labour Court, Andaman & Nicobar Islands at Port Blair in ID Case No. 07 of 2014. The Learned Presiding Officer by Award dated 25th September, 2019 decided the Second Reference in favour of the present respondents/the workmen holding, inter alia, that the First Reference in ID Case No. 9 of 2004 as decided by the Judgment and Award dated 19th September, 2008 is pari materia to the facts and circumstances of the present Second Reference. The Learned Labour Court also held that the present respondents/workmen were initially appointed on casual/contract/temporary basis through a selection process and subsequently were regularised by ANIIDCO. Since their regularisation they are receiving pay and other benefits at par with the regular employees of ANIIDCO. 9. The judgment and Award of the Learned Labour Court dated the 25th of September, 2019 was affirmed by the Hon’ble Single Bench by its impugned Judgment and Order dated 17th December, 2019. The Hon’ble Single Bench, inter alia, noticed the decision reported in Prabhakar vs. Joint Director Sericulture Department and Another, (2015) 15 SCC 1 . The Hon’ble Single Bench found that In Re: Prabhakar has considered the aspect of delay in making a reference under the ID Act of 1947. The Hon’ble Single Bench noticed the discussion In Re: Prabhakar (supra) to hold that the words ‘at any time’ used in Section 10 of the ID Act would support the contention that there is no period of limitation specified for making a reference. However, at the same time, the appropriate Government has to keep in mind the fact whether the dispute under reference is still subsisting or, in other words, is a live dispute and has not become a stale claim, in which case the reference can be refused. 10. The Hon’ble Single Bench was also pleased to notice the proposition In Re: Prabhakar (supra) that one of the factors to consider whether a dispute is live or, has become stale, is to consider when the concerned workmen approached the appropriate Government. 10. The Hon’ble Single Bench was also pleased to notice the proposition In Re: Prabhakar (supra) that one of the factors to consider whether a dispute is live or, has become stale, is to consider when the concerned workmen approached the appropriate Government. However again, the approach of the appropriate Government inviting industrial reference will have to be considered in the facts and circumstances of each case and there cannot be an inflexible rule connected to the time for making the order of reference. 11. Referring to other decisions respectively on the point of a reasonable and rational exercise of power by the appropriate Government in a reference under Section 10 of the ID Act [Nadungadi Bank Ltd. vs. K.P. Madhavankhutty and Others, (2000) 2 SCC 455 , In Re: Ravi Kumar, (2009) 13 SCC 746 , State of Karnataka and Another vs. Ravi Kumar and In Re: Dhan Kunward, (2006) 6 SCC 481 with U.P. State Road Transport Corporation vs. Babu Ram, 2006) 5 SCC 433], the Hon’ble Single Bench concluded that the present respondents/workmen were not barred by the principles of delay to claim their entitlement to 1/30th of the minimum pay scale plus dearness allowance from the date of their initial appointments. 12. Accordingly, the Award impugned dated 25th of September, 2019 was affirmed. It is the Order of the Hon’ble Single Bench dated 17th December, 2019 which is under challenge in this appeal. 13. Ms. Nag, Learned Counsel, has submitted that the Hon’ble Single Bench erred by not holding that the present respondents/the workmen constituted a classic case of fence-sitters. Since admittedly the present respondents/workmen waited for the final decision in the First Reference and, only after the final decision ended by confining the benefit of the Award only to the 33 workmen who were part of the First Reference, did the present respondents/the workmen approach the Learned Labour Court in the year 2014. It is submitted that thereby a delay of almost 15 years has arisen from the date the present respondents/the workmen claim to be paid their dues in terms of the Memo dated 7th June, 1988. In view of such delay and laches on the part of the present respondents/the workmen they are not entitled to any relief at this stage. 14. Ms. In view of such delay and laches on the part of the present respondents/the workmen they are not entitled to any relief at this stage. 14. Ms. Nag would submit that the Hon’ble Apex Court has in no uncertain terms decided that fence-sitters who woke up after lapse of considerable length of time cannot be granted relief. This is the ratio of State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347 . 15. It is submitted by Learned Counsel for the appellants that the onus is on the respondents/ the workmen to show that an industrial dispute has been filed within reasonable time following the ratio of the judgment of the Hon’ble Apex Court In Re: Baburam (supra). It is argued that on the basis of the records available before ANIIDCO, it cannot be verified that the present respondents/ the workmen were similarly employed as the 33 workmen who are the beneficiaries of the First Reference for the period between 1994 to 2000. In the absence of the records it would not be possible for ANIIDCO to ascertain their exact terms of engagement and thereby settle their claim to 1/30th of the basic minimum pay plus dearness allowance treating them to be in casual service between 1994 to 2000. 16. It is submitted that no details of their engagement could not be furnished by their representative, PW1, in the Second Reference being ID case No. 07 of 2014. Mrs. Nag refers to the cross-examination of PW1, one Shri Nahid Ali, wherein it is admitted by the said PW1 as follows: “I do not have any idea whether ANIIDCO rules is applicable in my case or not. My claim is for the period 1994 to 2001. I raise this claim for the first time after 15 years. Not a fact that I have filed a false case. Not a fact that I am not entitle to the claim made.” 17. Mrs. Nag would therefore argue that even the deponent before the Learned Labour Court in the Second Reference, PW1 (supra), could not conclusively state about the terms of employment which he claims to be from 1994. It is submitted that PW1 in the Second Reference has admitted the fact that the Second Reference has been brought after a period of 15 years. 18. It is submitted that PW1 in the Second Reference has admitted the fact that the Second Reference has been brought after a period of 15 years. 18. Accordingly, Learned Counsel for the appellants/ANIIDCO points out that it would be a waste of the public exchequer and iniquitous upon the State to now recognize a stale claim and pay the present respondents/workmen in terms of the Memo. dated 7th of June 1988. 19. Mrs. Nag further relies on the decision reported in 2000) 2 SCC 455 (at Paragraph 8) to reiterate the point that the High Court has the jurisdiction to examine whether an industrial reference could have been validly made or not. In view of the cross-examination of PW1 (supra), Learned Counsel takes the legal position that in the absence of any material conclusively showing the appointment of the present respondents/ the workmen for the period 1994 to 2000, the appellant/ANIIDCO is entitled to take the specific plea that the case of the respondents/the workmen is not identical to that of the workmen in the First Reference. In support of such contention, Learned Counsel relies on the Judgment reported in (2002) 10 SCC 167 at Paragraph 6. 20. Finally, Mrs. Nag takes the point that in view of the factual and legal position as submitted above, the present respondents/ the workmen cannot claim to be victims of a continuous wrong. 21. Per Contra, Mr. Gopala Binnu Kumar, Learned Counsel appearing for the present respondents/ the workmen, submits that the legal position is clear that there is limited scope for judicial interference with an Award of an Industrial Court. It is submitted that only after the Hon’ble Division Bench delivered its Judgment and Order dated 3rd February 2012, did a cause-of-action arise in favour of the present respondents/ the workmen. It is argued that the law has been settled by the Judgment delivered by the Hon’ble Apex Court Surinder Singh and Another vs. Engineer-in- Chief, CPWD and Others, AIR 1986 SC 584 . It is argued that the law has been settled by the Judgment delivered by the Hon’ble Apex Court Surinder Singh and Another vs. Engineer-in- Chief, CPWD and Others, AIR 1986 SC 584 . The relevant paragraph of the judgment In Re: Surinder Singh (supra) has been quoted by the Hon’ble Division Bench in its Judgment and Order dated 3rd February 2012 which reads as follows: “The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill-come from the mouths of the State and State undertakings. We all both the writ petitions and direct the respondents, as in the Nehru Yuvak Kendras case (supra) to pay to the petitioners, and all other daily rated employees, the same salary and allowances as are paid to regular and permanent employees with effect from the date when they were respectively employed. The regret that many employees are kept in service on a temporary daily wage basis without their services being regularized. We hope that the Government will take appropriate action to regularize the services of all those who have been in continuous employment for more than six months ” 22. Mr. Kumar further refers to the findings of the Hon’ble Division Bench (supra) which, inter-alia, holds that the fundamental Constitutional scheme so far as the casual or contractual employees are concerned remains unaltered since the Judgment in the case of In Re: Surinder Singh (supra) was delivered. 23. Learned Counsel submits that in view of the clear pronouncement of law In Re: Surinder Singh (supra), the Hon’ble Division Bench was pleased not to interfere with the judgment of the Hon’ble Single Bench and the Award arising out of the First Reference before the Learned Labour Court. 24. It is next argued by Mr. Kumar that following the judgment In Re: Surinder Singh (supra), the Memo. dated 7th June 1988 was issued by the Central Government. The said Memo. of 7th June 1988 covers all casual/contractual and temporary workmen appointed under the Central Government, including the Andaman and Nicobar Administration which is a Union Territory. 24. It is next argued by Mr. Kumar that following the judgment In Re: Surinder Singh (supra), the Memo. dated 7th June 1988 was issued by the Central Government. The said Memo. of 7th June 1988 covers all casual/contractual and temporary workmen appointed under the Central Government, including the Andaman and Nicobar Administration which is a Union Territory. It is submitted that ANIIDCO is a Corporation held by the Andaman and Nicobar Administration and therefore a State within the meaning of Article 12 of the Constitution of India. Accordingly, it is no more res integra that the Memo dated 7th June 1988 shall equally apply to all the employees under ANIIDCO, including the present respondents/the workmen. 25. Referring to the denial by PW1 of the nature of service performed by the present respondents/ the workmen under ANIIDCO as relied upon by Mrs. Nag in her arguments (supra), Mr. Kumar submits that the evidence of PW1 cannot be relied upon since he joined service in ANIIDCO in 2007. Referring to the Award passed in the First Reference, it is submitted that contrary to the claim of the appellant/ ANIIDCO that there are no records of the past service of the present respondents/ the workmen, to the contrary all the appointment letters of the present workmen have been annexed in the plaint filed before the Learned Tribunal and appear at pages 5 to 90 thereof. Referring further to the pleadings in ID case no. 07 of 2014, which is part of the Paper Book now before the Hon’ble Division Bench, Mr. Kumar submits that it will be evident from the documents on record that each of the present respondents/ the workmen were appointed by ANIIDCO against specific/ designated posts. They were also subsequently regularized against such specific posts. 26. On the question of delay, Learned Counsel for the respondents/ the workmen submits that the delay is not fatal to the claim of the present respondent/ the workmen since because of the delay no third party rights have been affected. In view of their admitted appointments under ANIIDCO at par with the workmen who were part of the First Reference, the benefits of the Memo dated 7th June 1988 must also devolve on the present respondents/ the workmen. 27. In support of his submissions, Mr. In view of their admitted appointments under ANIIDCO at par with the workmen who were part of the First Reference, the benefits of the Memo dated 7th June 1988 must also devolve on the present respondents/ the workmen. 27. In support of his submissions, Mr. Kumar relies on the authority of M/s. Dehri Rohtas Light Railway Corporation Ltd. vs. District Board, Bhojpur and Others, AIR 1993 SC 802 to stress the point that an enquiry by Court into a belated or stale claim would depend upon the facts and circumstances of each case. Further relying on the authority of Union of India vs. Tarsem Singh, (2008) 8 SCC 648 it is submitted that relief can be granted in a case where the aggrieved party is found to be suffering a continuous wrong. Also relying on the authority of AIR 1974 SC 359, it is submitted that delay cannot stand in the way when the issue concerned is the enforcement of a fundamental right. Mr. Kumar also relies upon several unreported decisions in Special Leave Petitions (Civil) which have disposed of on similar issues by holding in favour of the workmen. 28. Having heard the parties and considering the materials placed, this Court is called upon to first consider the argument as to whether the present respondents/ the writ petitioners represent a classic case of fence-sitting or, in other words, are in the nature of fence-sitters. Admittedly, the present respondents/ the workmen arrived before the Learned Labour Court with the Reference after 15 years. Admittedly again, the Reference brought by the present respondents/ the workmen, which has been called for brevity as the Second Reference, has been brought after pronouncement of the Judgment and Order of the Hon’ble Division Bench dated 9th of February 2012 upholding the First Reference in favour of the first group of 33 workmen. 29. Such a reference brought at the end of 15 years of their claim having matured in the year 2000 on their regularisation under ANIIDCO would, in normal facts and circumstances, lead to the single conclusion that such delayed claim requires to be summarily dismissed. However, this Court notices that the First Reference before the Industrial Tribunal, although brought by only 33 workmen, was represented through the President, ANIIDCO Employees Solidarity Union, Port Blair (for short, referred to as the Labour Union). However, this Court notices that the First Reference before the Industrial Tribunal, although brought by only 33 workmen, was represented through the President, ANIIDCO Employees Solidarity Union, Port Blair (for short, referred to as the Labour Union). It is not in dispute that the present respondents/ the workmen are also members of the said Labour Union. It could be accordingly expected that the determination of the First Reference vide ID Case No. 09 of 2004 which was ultimately upheld by the Hon’ble Division Bench on 9th of February 2012, could have been also decided in rem covering not only the 33 workmen who were part of the First Reference but also the other similarly circumstanced workmen, including the present respondents. 30. Accordingly, this Court must notice that the present respondents/ the workmen legitimately waited for the industrial dispute to be finally decided in which the self-same Labour Union was the First Party. This Court finds no error of judgment on the part of the present respondents/ the workmen to have anticipated that a decision in the First Reference would finally result in benefits flowing to all workmen who are members of the said Labour Union. Accordingly, this Court finds no error with the present respondents/ the workmen raising their industrial dispute after the Hon’ble Division Bench had concluded by its order dated 9th February 2012 that the benefits of the First Reference shall be only restricted to the 33 workmen who were part of the First Reference and not be treated as a precedent. 31. This Court must also notice that in the First Reference the workmen were represented by the same Labour Union, which now represents them in the Second Reference. Furthermore, the nature of the Reference in both the cases considers the applicability of the parent Memo dated 7th June 1988 connected to the claim of similarly circumstanced casual workers of ANIIDCO to be paid at the rate of 1/30thth of the pay at the minimum of the relevant pay scale plus dearness allowance. Furthermore, the nature of the Reference in both the cases considers the applicability of the parent Memo dated 7th June 1988 connected to the claim of similarly circumstanced casual workers of ANIIDCO to be paid at the rate of 1/30thth of the pay at the minimum of the relevant pay scale plus dearness allowance. Although each of the References was answered by the Learned Labour Tribunal through its respective Awards in favour of the workmen listed in the Reference, it does not stand to reason that the true intent, purport and contents of the said Memo dated 7th of June 1988 can be read down to mean individuals alone instead of applying the same to all workmen similarly circumstanced. 32. Apropos the above discussion, this Court must notice the findings of the Hon’ble Division Bench as expressed in its final order dated 9th February 2012. Dealing with the entitlement of the workmen to receive the benefits of the Memo dated 7th of June 1988 pursuant to the pronouncement of the Hon’ble Apex Court In Re: Surinder Singh (supra), the Hon’ble Division Bench, inter alia, held as follows: “the fundamental constitutional scheme, so far as casual or contractual employees are concerned, remains unaltered since the judgment in the case of Surinder Singh (supra) was delivered.” 33. To the mind of this Court, the above noted pronouncement of the Hon’ble Division Bench makes it amply clear that receipt of benefits by the workmen under the Memo dated 7th June 1988, which itself traces to the legal position underscored by In Re: Surinder Singh (supra), remains a constitutional entitlement of the workmen. To the further mind of this Court, such constitutional entitlement cannot be wiped away when the present workmen stake their claim to it by filing a Second Reference. It does not stand to reason that the such constitutional entitlement would end with the workmen in the First Reference. It again stands to reason that the employer/ANIIDCO is estopped from arguing waiver/acquiescence qua the similarly circumstanced workmen in the Second Reference staking claim to their constitutional entitlement. 34. It is also a matter of record that the Memo dated 7th June, 1988 and all benefits flowing out of the said Memo still subsist and have not been withdrawn. It again stands to reason that the employer/ANIIDCO is estopped from arguing waiver/acquiescence qua the similarly circumstanced workmen in the Second Reference staking claim to their constitutional entitlement. 34. It is also a matter of record that the Memo dated 7th June, 1988 and all benefits flowing out of the said Memo still subsist and have not been withdrawn. The argument that the present respondents/the workmen are not similarly circumstanced as the workmen who were part of the First Reference cannot be accepted only on the basis of a single deposition by one of the deponents, namely PW 1, before the Learned Tribunal. It is an acceptable position that the records of service with ANIIDCO of the present respondents/workmen for the period under reference, i.e. 1994 to 2000, were part of the plaint filed by the present respondents/the workmen before the Learned Labour Tribunal which have not been individually rebutted by the employer/ANIIDCO. 35. In this appeal the primary issue raised by the appellants is only of delay. In such view of the matter and also in view of the fact that the present respondents/the workmen are in a co-equal position in their employment at par with their colleagues/contemporaries in the First Reference, the axiomatic conclusion follows, which is that the present respondents/workmen are equally entitled to receive their constitutional entitlement of 1/30th of the minimum pay scale plus dearness allowance. 36. With reference to the above discussion, this Court is persuaded to take notice of the pronouncement of the Hon’ble Supreme Court Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation and Others, (2013) 1 SCC 353 at Paragraph 14: “14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad vs. Chief Controller of Imports and Exports, LAO vs. Katiji, Dehri Rohtas Light Railway Co. Ltd. vs. District Board, Bhojpur, Dayal Singh vs. Union of India and Shankara Coop. Housing Society Ltd. vs. M. Prabhakar).” 37. The law laid down In Re: Tukaram Kana Joshi (supra) was further noticed by the Hon’ble Supreme Court Union of India and Others vs. N. Murugesan and Others, (2022) 2 SCC 25 . 38. Therefore, in the context of the aforementioned discussion this Court is ad idem with the position of law as pronounced In Re: Tarsem Singh (supra) to the extent that the denial of their constitutional entitlement in the facts of the present case constitutes a continuous wrong suffered by the present respondents/the workmen which has been correctly redressed by the Award in the Second Reference as upheld by the Hon’ble Single Bench. 39. In the backdrop of the above discussion, the Order impugned of the Hon’ble Single Bench suffers from no infirmity. 40. MA No. 10 of 2020 stands accordingly dismissed. 41. Parties shall be entitled to act on the basis of a server copy of this Judgment and Order placed on the official website of the Court. 42. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. I agree - Rabindranath Samanta, J.