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CASE NO.: Appeal (civil)  4561 of 2007

PETITIONER: Karan Singh

RESPONDENT: M/s Executive Engineer Haryana State Marketing Board

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

CIVIL APEPAL NO. 4561 OF 2007 (Arising out of SLP (C) No. 26379 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by the  Division Bench of the Punjab and Haryana High Court  dismissing the writ petition filed by the appellant questioning  the correctness of the decision rendered by the Presiding  Officer, Industrial Tribunal-cum-Labour Court, Hissar.  

3.      The reference made to the Labour Court by the State  Government of Haryana in terms of Section 10 (1) of the  Industrial Disputes Act, 1947 (in short the ’Act’) was answered  in favour of the respondent (hereinafter referred to as the  ’Board’) holding that the claim was highly belated and  therefore dis-entitled the appellant from any relief.  

4.      A brief reference to the factual aspects would suffice.  

       The appellant was appointed as DPL in August 1993 and  worked upto October 1994. According to the appellant his  services were terminated without any charge sheet or holding  any enquiry though he had worked for more than 240 days. In  that context it was contended that provisions of Section 25-F  of the Act were not complied with. He had prayed for re- instatement with full back wages alongwith all consequential  benefits.  The claimant who was examined as WW-1 had  stated that he had joined the respondent-Board as DPL on  1.8.1993 and was getting Rs.1120/- p.m. and had worked till  October 1994 continuously when his services were terminated.  Grievance was made that the workers junior to him had been  regularized and a departure was made in his case.  

       The respondent-Board took the stand that the services of  the claimant were required as DPL as and when required and  he had really not completed 240 days. A stand was taken that  the claim was highly belated. It is to be noted that in the cross  examination appellant had admitted that he had no proof of

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having worked from August 1993 to October 1994. The claim  petition was filed in the year 2000. The notice dated 6.6.2000  was the first one and on failure of conciliation, reference was  made on 8.2.2001. The appellant should have explained  inaction on his part. Labour Court took the view that the claim  was highly belated. If the appellant felt that the order of  termination was illegal without following due procedure, he  should have come up with demand notice within a reasonable  time. It was held that though no limitation is prescribed, but it  would be unequitable to re-open the closed chapter after a  long time. The appellant was therefore held not to be entitled  to any relief.  

Writ petition filed by the appellant was dismissed on the  ground that the demand notice had been raised after six years.           5.      Learned counsel for the appellant has submitted that  there being no period of limitation prescribed and at the most  the relief could have been moulded instead of rejecting the  claim.

6.      Learned counsel for the respondent supported the order  of the High Court.

7.      In the appeal the main issue which arises for  determination is as follows:

"Whether the reference of the  Petitioner/workman could be rejected on the  sole ground of delay when Government itself  made reference for adjudication of the issue/  dispute."

8.      In the case of Management of Express Newspapers  (Private) Ltd. v. The Workers and Ors. reported in (AIR 1963  SC 569) it has been held that the jurisdiction of the Tribunal  in dealing with industrial disputes is limited to the points  mentioned in Section 10(4).

9.      In the case of National Engineering Industries Ltd. v.  State of Rajasthan and Ors. (2000) 1 SCC 371) it has been  held vide para 24 that the High Court has jurisdiction to  entertain a writ petition when there is an allegation that there  is no industrial dispute which could be the subject-matter of  reference for adjudication to the Industrial Tribunal under  Section 10. This is because existence of the industrial dispute  is a jurisdictional fact. Absence of such jurisdictional fact  results in the invalidation of the reference. For example, even  under the Income Tax Act, 1961 as it stood earlier, the Income  Tax Officer must have reason to believe escapement of income.  This "reason to believe" is a jurisdictional fact, therefore, writ  petitions were maintainable in cases where the High found  absence of basic facts for reopening the assessment. The  industrial Tribunal under Section 10 gets its jurisdiction to  decide an industrial dispute only upon a reference by the  appropriate government. The Industrial Tribunal cannot  invalidate the reference on the ground of delay. If the employer  says that the workman has made a stale claim then the  employer must challenge the reference by way of Writ petition  and say that since the claim is belated, there was no industrial  dispute. The Industrial Tribunal cannot strike down the  reference on this ground. In the present case, the Industrial  Tribunal has held that the employer has violated Section 25F.  If so, the order of termination is bad in law. It has to be struck

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down. In the present case, it has been struck down. However,  the Tribunal had refused to grant any relief on the ground of  delay. The Tribunal has no authority to invalidate the  reference, particularly when it has found that the order of  termination violates Section 25F of the Industrial Disputes  Act, 1947.

10.     In Sapan Kumar Pandit v. U.P. State Electricity Board  and Ors. (2001) 6 SCC 222), it has been held, vide para 15, as  follows:

"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 4-K 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."

11.     So far as delay in seeking the reference is concerned, no  formula of universal application can be laid down. It would  depend on facts of each individual case.            12.     However, certain observations made by this Court need  to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty  and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as  follows:     

"6.     Law does not prescribe any time-limit for  the appropriate Government to exercise its  powers under Section 10 of the Act. It is not  that this power can be exercised at any point  of time and to revive matters which had since  been settled. Power is to be exercised  reasonably and in a rational manner. There  appears to us to be no rational basis on which  the Central Government has exercised powers  in this case after a lapse of about seven years  of the order dismissing the respondent from  service. At the time reference was made no  industrial dispute existed or could be even said  to have been apprehended. A dispute which is  stale could not be the subject-matter of  reference under Section 10 of the Act. As to  when a dispute can be said to be stale would  depend on the facts and circumstances of each  case. When the matter has become final, it  appears to us to be rather incongruous that  the reference be made under Section 10 of the

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Act in the circumstances like the present one.  In fact it could be said that there was no  dispute pending at the time when the reference  in question was made. The only ground  advanced by the respondent was that two  other employees who were dismissed from  service were reinstated. Under what  circumstances they were dismissed and  subsequently reinstated is nowhere  mentioned. Demand raised by the respondent  for raising an industrial dispute was ex-facie  bad and incompetent."

13.     In S.M. Nilajkar and Ors. v. Telecom District Manager,  Karnataka (2003 (4) SCC 27) the position was reiterated as  follows: (at para 17)

"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. It is true, as held  in M/s. Shalimar Works Ltd. v. Their Workmen  (supra) (AIR 1959 SC 1217), that merely  because the Industrial Disputes Act does not  provide for a limitation for raising the dispute  it does not mean that the dispute can be  raised at any time and without regard to the  delay and reasons therefor. There is no  limitation prescribed for reference of disputes  to an industrial tribunal, even so it is only  reasonable that the disputes should be  referred as soon as possible after they have  arisen and after conciliation proceedings have  failed particularly so when disputes relate to  discharge of workmen wholesale. A delay of 4  years in raising the dispute after even  reemployment of the most of the old workmen  was held to be fatal in M/s. Shalimar Works  Limited v. Their Workmen (supra) (AIR 1959  SC 1217), In Nedungadi Bank Ltd. v. K.P.  Madhavankutty and others (supra) AIR 2000  SC 839, a delay of 7 years was held to be fatal  and disentitled to workmen to any relief. In  Ratan Chandra Sammanta and others v.  Union of India and others (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.  Although the High Court has opined that there  was a delay of 7 to 9 years in raising the  dispute before the Tribunal but we find the  High Court factually not correct. The  employment of the appellants was terminated  sometime in 1985-86 or 1986-87. Pursuant to  the judgment in Daily Rated Casual Employees  Under P&T Department v. Union of India  (supra) (AIR 1987 SC 2342), the department

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was formulating a scheme to accommodate  casual labourers and the appellants were  justified in awaiting the outcome thereof. On  16-1-1990 they were refused to be  accommodated in the scheme. On 28-12-1990  they initiated the proceedings under the  Industrial Disputes Act followed by conciliation  proceedings and then the dispute was referred  to the Industrial Tribunal cum-Labour Court.  We do not think that the appellants deserve to  be non suited on the ground of delay."  

14.     The above position was highlighted recently in Employers  in relation to the Management of Sudamdih Colliery of M/s  Bharat Coking Coal Ltd. v. Their Workmen represented by  Rashtriya Colliery Mazdoor Sangh (2006 (1) Supreme 282) and  Chief Engineer, Ranjit Sagar Dam & Anr. v. Sham Lal (2006(9)  SCC 124).

15.     In the aforesaid background, we would have normally set  aside the award of the Labour Court and the High Court.  But  because of long passage of time, it would be inappropriate,  particularly when appellant has not even offered any  semblance of explanation for the delay.

16.     Accordingly we direct that the respondent-Board shall  pay a sum of Rs.60,000/- within a period of six weeks in full  and final settlement of appellant’s entitlements.

17.     The appeal is allowed to the aforesaid extent. There will  be no order as to costs.