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CASE NO.: Appeal (civil)  6473 of 2005

PETITIONER: Assistant Engineer, C.A.D., Kota                         

RESPONDENT: Dhan Kunwar                                                      

DATE OF JUDGMENT: 05/07/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Rajasthan High Court,  Jaipur Bench, dismissing the appeal filed by the appellant- State questioning correctness of the judgment rendered by a  learned Single Judge.   

       A brief reference to the factual aspects as highlighted by  the appellant would suffice:

       The respondent (hereinafter referred to as the ’workman’)  was appointed on 1.1.1978 as work-charged employee on  temporary basis. Subsequently, she was declared quasi- permanent in service and worked up to 30.5.1983.  Appellant  terminated her service after paying one month’s salary in  terms of Rule 26 of Rajasthan Public Works Department  (Buildings and Roads) including Gardens, Irrigation, Water- Works and Ayurvedic Departments, Work-charged Employees  Service Rules, 1964 (in short the ’Rules’).  After about eight  years dispute was raised by the respondent-workman.   Initially no reference was made by the State Government.   Subsequently, a reference was made to the Labour Court,  Kota, Rajasthan, under Section 10(1) of the Industrial  Disputes Act, 1947 (in short the ’Act’).  The reference was to  the effect as to whether the employer was justified in  retrenching the respondent.  Several points were urged by the  present appellant questioning legality of the reference.   Primary stand related to the closure of the section of the  Irrigation Department where the respondent was working.  It  was emphasized that the reference was sought for after a very  long period of time i.e. about eight years.  On both counts, it  was submitted, that reference has to be answered against the  workman and in favour of the employer.  The Labour Court  was of the view that though the claim was delayed, and so was  the reference, yet the respondent-workman was not to be  denied the benefits. It was held that Rule 26 of the Rules was  similar in terms to Section 25F(a) of the Act.  Even if the said  provision of the Act is complied with, there was no compliance  with the requirement of Section 25F(b), therefore, the reference  was held maintainable and direction for payment of 30% back  wages was given, along with direction for reinstatement.  

       Questioning correctness of the award a writ petition was  filed before the High Court. Learned Single Judge dismissed

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the same holding that merely because the claim was raised  after about eight years, that did not disentitle the workman to  get relief and the Labour Court was justified in awarding only  30% back wages.  The orders of the Labour Court and the  learned Single Judge were questioned by filing appeal before  the Division Bench.  By the impugned order the same was  dismissed.

       In support of the appeal, learned counsel for the  appellant submitted that highly belated claim should not have  been entertained by the Labour Court, particularly when the  concerned section of the Irrigation Department has been  abolished and there was no post for reinstating the  respondent-workman.   

Per contra, learned counsel for the respondent-workman  submitted that even if it is held that the claim was after long  lapse of time, that cannot disentitle the workman from his  legitimate entitlements.  The right view has been taken by the  Labour Court by awarding only 30%.

       It may be noted that 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.                    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  heel) 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  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."

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       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  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."  

       In the background of what has been stated above, the

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Labour Court should not have granted relief.  Unfortunately,  learned Single Judge and the Division Bench did not consider  the issues in their proper perspective and arrived at abrupt  conclusions without even indicating justifiable reasons.   

Above being the position, the appeal is bound to succeed  and we direct accordingly.  No costs.        27824