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CASE NO.: Appeal (civil)  7637 of 2004

PETITIONER: Director, Food and Supplies, Punjab and Anr

RESPONDENT: Gurmit Singh

DATE OF JUDGMENT: 17/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (With Civil Appeals Nos. 6766/2004 and 2608/2004)

Dr. ARIJIT PASAYAT, J.

       Challenge in these appeals is to the judgment of the  Division Bench of the Punjab and Haryana High Court  dismissing the writ petitions filed by the present appellants.   Challenge in the writ petitions was to the order passed by the  Presiding Officer, Labour Court, Patiala (in short the ’Labour  Court’). Background facts in a nutshell are as follows:

       The dispute in three appeals being common, factual  position in Civil Appeal No. 7637 of 2004 is noted.

Civil Appeal No.7637/2004            Reference was made to the Labour Court under Section  10(1)(c) of the Industrial Disputes Act, 1947 (in short the ’ID  Act’) of the following purported dispute:

"Whether termination of services of Gurmit  Singh-Workman is justified and in order? If  not, to what relief is he entitled?"

The case of the workman was that he joined the present  appellants as Chowkidar and worked therein from 1.6.1985 to  24.8.1986. His services were terminated on 25.8.1986 by the  Management without service of any notice, holding of any  enquiry or payment of any compensation. He was getting  Rs.400/-p.m. at that time as wages. He is covered under the  Industrial Employment (Standing Orders) Act, 1946 (in short  the ’Standing Orders Act’). The Management did not comply  with the principles of natural justice while terminating his  services. The notice of reference was given to the present  appellants. It was stated in the written statement inter alia  that the claimant was working as Chowkidar on daily wages.  His services ended with the end of each working day. The  claim of the claimant that he had worked from 1.6.1986 to  24.8.1986 is not correct. The services of the claimant were  dispensed with as he was surplus. No notice or enquiry or  compensation was required as the claimant was a worker on  daily wages. He was working in the department on daily wages  as fixed by the Deputy Commissioner, Sangrur from time to  time. It was also pleaded in the preliminary objections that  there are three categories of Chowkidars in the Food and  Supplies Department to safeguard the food grains stocks. The

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first category consists of regular Chowkidars according to the  sanctioned strength drawing regular pay scale. The second  category consists of temporary Chowkidars. They are recruited  through employment exchange and draw emoluments equal to  the regular Chowkidars. The third category consists of daily  wages Chowkidars who draw fixed daily wage from time to  time fixed by the department of concerned districts. The  services of the Chowkidars on daily wages end with the end of  each working day. Their strength increased/decreased with  the increase/decrease of the food grains stocks. The services  of the daily wages Chowkidars were dispensed with on  becoming surplus. The workman in the present case belonged  to the third category i.e. daily wages Chowkidar. His services  were dispensed with on becoming surplus alongwith others. It  was also stated that the present appellants cannot be treated  as an industry and the ID Act has no application. The Labour  Court relied on certain documents and concluded that the  workman had worked for more than 240 days. Unfortunately,  the Labour Court did not record any finding about the non  applicability of the ID Act. It was noted that the workman was  gainfully employed after the termination of his services.  Accordingly, direction was given for re-instatement with  continuity of service. This finding was recorded primarily on  the ground that he had worked for more than 240 days. No  finding was recorded on the plea taken by the present  appellants that the claim was made after 9 years without  explaining the belated approach.  

The High Court dismissed the writ petitions filed by the  present appellants on the ground that even if there was  belated approach, the Court could not decline to grant relief  but it could mould the relief.  

       In support of the appeals, learned counsel for the  appellants submitted that both the trial court and the High  Court did not notice the basic challenge of the appellants  about the non-applicability of the ID Act. Apparently, the  Labour court had not considered the plea about non  applicability of the ID Act.  This was specifically pleaded. It is  true that the Labour court could not have declined to answer  the reference. The jurisdiction of the Tribunal and the Labour  court as the case may be in dealing with an industrial dispute  is limited. The point was mentioned in Section 10(4) of the ID  Act in National Engineering Industries Ltd. v. State of  Rajasthan and Ors. (2000 (1) SCC 371). It was held 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  Tribunal under Section 10 of the ID Act. Thus the existence of  the industrial dispute is a jurisdictional factor. Absence of  jurisdictional fact results in invalidation of the reference. The  Tribunal or the Labour Court under Section 10 gets  jurisdiction to decide an industrial dispute only upon a  reference by the appropriate government. The Tribunal or the  Labour Court cannot invalidate the reference on the ground of  delay. If the employer makes a grievance that the workman  has made a stale claim then an employer can challenge the  reference by way of a writ petition and contend that since the  claim is belated there was no industrial dispute. The Tribunal  or the Labour Court cannot strike down the reference on this  ground. As observed in Sapan Kumar Pandit v. U.P. State  Electricity Board and Ors. (2001 (6) SCC 222) 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

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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. The long  delay for making the adjudication could be considered by the  Adjudicating Authority while moulding the reliefs. That is a  different matter altogether.  

       In the instant case apart from the fact that the long delay  aspect has not been considered by the Management it also did  not decide the jurisdictional fact about the applicability of the  ID Act. That being so, the order of the Labour court as  affirmed by the High Court cannot be sustained and stands  quashed. The appeal is allowed without any order as to costs.  

       In view of our conclusions in Civil Appeal No.7637/2004,  Civil Appeal Nos. 6766 of 2004 and 2608 of 2004 are also  allowed on the same terms with no order as to costs.  

       The matter is remitted to the Labour court to adjudicate  on these aspects. Since the matter is pending since long the  Labour court would do well to dispose of the matter within  four months from the date of receipt of this order.