http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  3961 of 2006

PETITIONER: Haryana Land Reclamation and Development Corporation Ltd

RESPONDENT: Nirmal Kumar

DATE OF JUDGMENT: 10/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL No. 3961 OF 2006

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the order passed by a  Division Bench of the Rajasthan High Court at Jodhpur,  dismissing the Special Appeal under Section 18 of the  Rajasthan Ordinance 1949.  By the impugned judgment the  Division Bench upheld the order passed by the learned Single  Judge.   2.      Background facts in a nutshell are as follows:         The respondent-workman filed a claim petition and  sought a reference of the dispute raised by him to the Labour  Court.  The appropriate Government referred to the dispute for  adjudication to the Labour Court, Hanumangarh.  In the claim  petition the respondent-workman alleged that he was  employed by the appellant as watchman-cum-peon and his  services were retrenched by the appellant illegally on  18.7.1991.  The Labour Court after giving an opportunity to  the appellant to discuss his claim and on consideration of  evidence led by the parties came to the conclusion that the  services of the respondent-workman was retrenched in  violation of Rule 77 of the Rajasthan Industrial Rules, 1958 (in  short the ’Rules’). The Labour Court also found that the reason  for retrenchment as advanced by the appellant, that some  amount was embezzled by the respondent-workman. was not  established by the appellant.  The appellant being aggrieved by  the order passed by the Labour Court, filed a writ petition.   The writ petition was dismissed by the learned Single Judge  on 21.7.2000 as the learned Single Judge did not find any  reason to interfere with the order passed by the Labour Court. 3.      Learned counsel for the appellant submitted that the  respondent was appointed on a daily-wage basis on 15.8.1988  and was retrenched on 18.7.1991 due to financial losses.  This  position is accepted.  Respondent raised a highly belated claim  in the year 1997 and reference was made to the Labour Court  on 20.2.1997 under Section 10 of the Industrial Disputes Act,  1947 (in short ’the Act’). The learned Single Judge by a  practical non-reasoned order dismissed the writ petition and  as noted above, the writ appeal was dismissed.           

4.      The award in the case was made on 6.11.1997 and  reinstatement was directed with back wages limited to 50%  from the date of reference.     

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

5.      As noted above, the stand of the appellant is that there  was a belated dispute raised by the respondent and on that  score alone the reference has been dismissed.  Learned  counsel for the respondent supported the order.  It is noted  that while issuing notice on the scope of adjudication was  limited to quantum of back wages.    6.      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.   

7.       However, certain observations made by this Court need  to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty  (2002 (2) SCC 455), it was noted at para 6 as follows: (SCC pp.    459-60)  "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  Act in the circumstances like the present one.  In fact it could be said that th ere 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."  

8.       In S.M. Nilajkar v. Telecom District Manager [2003 (4)  SCC 27], the position was reiterated as follows (at SCC pp.   39-40, 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 Shalimar Works Ltd. v. Workmen [(1960) 1  SCR 150] 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;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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 re-employment of most of  the old workmen was held to be fatal in  Shalimar Works Ltd. v. Workmen (supra) . In  Nedungadi Bank Ltd. v. K.P. Madhavankutty  (supra) 1 a delay of 7 years was held to be fatal  and disentitled the workmen to any relief. In  Ratan Chandra Sammanta v. Union of India  [1993 Supp.(4) SCC 67] 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 to 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 some time in 1985-86 or 1986- 87. Pursuant to the judgment in Daily Rated  Casual Labour v. Union of India [1988 (1) SCC  67 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."  

9.      The above position was highlighted in Asstt. Engineer,  CAD v. Dhan Kunwar, (2006) 5 SCC 481.                                    10.     It is not in dispute that the appellant was suffering from  huge losses from 1990 onwards.  In fact, this aspect has been  referred to by the Labour Court and has been accepted.

11.     Considering the facts, we restrict the back wages to  Rs.10,000/- to be paid within a period of two weeks from  today, if not already paid.

12.     The appeal is accordingly disposed of with no order as to  costs.