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CASE NO.: Appeal (civil)  1871 of 2007

PETITIONER: Krishi Utpadan Mandi Samity, Manglor

RESPONDENT: Pahal Singh

DATE OF JUDGMENT: 10/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   1871        OF 2007  [Arising out of SLP (Civil) No. 21994 of 2003]

S.B. SINHA,  J :

       Leave granted.

       Respondent herein was appointed as Kamgar on or about 1.1.1970.    He was allegedly appointed in excess of the sanctioned strength.   The post  was also not approved by the Director of the Mandi Samiti.   Indisputably,  he was not appointed in terms of the procedures laid down in  U.P. Krishi  Utpadan Mandi (Amendment and Validation) Act, 1970 (Act) or the  regulations framed thereunder.  He was again appointed on a temporary  basis without approval of the Director as a Clerk Typist on 30.9.1972.  One  of the terms of the offer of appointment issued in his favour was that his  services could be terminated at any time upon giving one month’s notice or  pay in lieu thereof.  The Authority was informed that several such  appointments have been made in excess of the staff and that too without  following the provisions of the Act and rules and regulations therein and  also without obtaining the approval of the Director.  It was directed that the  services of the persons concerned be terminated, by a letter dated  10.01.1974; pursuant to or in furtherance whereof, the services of six  employees including the respondent herein was terminated on 21.1.1974.   One month’s notice allegedly was given therefor.  It is stated that the  relevant provisions of the U.P. Industrial Disputes Act were also complied  with in relation thereto.  

       Respondent herein raised an industrial dispute on 2.5.1992.  The State  of Uttar Pradesh referred the following dispute for adjudication by the  Labour Court, Meerut.  

"Whether action of employers in terminating the  services of their workman Sh. Pahal Singh, S/o Sh.  Amrit Singh is illegal or invalid?   If yes, then to what  relief/compensation the concerned workman is entitled?   And with what other details?"

       The parties before the Labour Court submitted their respective written  statements.  Respondent adduced evidence. The Labour Court by an Award  dated 24.10.1996 holding that the termination of the services of the  respondent was illegal, directed him to be re-instated in service with  continuity of service and awarded back wages for the entire period.

       The said Award came to be questioned by the appellant herein  in a  Writ Petition filed before the High Court of Judicature at Allahabad.   By

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reason of the impugned Judgment, the High Court modified the Award  directing re-instatement of the respondent with 50% of back wages.   

       At the outset, we may notice that the judgment of the High Court is  not a reasoned one.  Why the Award was upheld with modification in the  quantum of back wages has not been stated.

       The High Court while exercising its jurisdiction under Articles 226  and 227 of the Constitution of India upon issuance of a rule nisi is expected  to apply its mind to the contentions raised by the parties and arrive at  findings thereupon.  

       We may notice that the learned Labour Court also committed the  same error.         It, in its Award merely stated:-

"The workman has filed written statement with an affidavit  which has not been controverted by the employers by  filing rejoinder on affidavit. Therefore, in these  circumstances the written statement of workman is liable  to be accepted according to Rule 12(9) of U.P. Industrial  Dispute Rule 1957.  It has been clearly provided under  Rule 12(9) of U.P. Industrial Disputes Rules 1957 that if  the workman files his written statement alongwith an  affidavit, then the employers have to file their rejoinder  with the affidavit.  If the employers do not file their  rejoinder alongwith affidavit, then considering the facts of  the written statement filed with affidavit as correct, award  will be made in favour of workman.

In the present case employers have not controverted the  written statement (affidavit) of workman by filing the  rejoinder alongwith affidavit and the facts regarding  termination of services pleaded by the workman were also  not controverted by employers either in arguments or in  evidence.  In these circumstances the order terminating the  services of workman will be held illegal and invalid."                  The Labour Court, thus, also did not advert itself to the questions  which were required to be gone into.  The workman in the said proceedings  was required to show that the termination was illegal.  Only because it filed  an affidavit and the respondent did not file any rejoinder affidavit thereto,  the same by itself would not mean that an Award would automatically  follow.

       The Labour Court was also under an obligation to consider as to  whether any relief, if at all could be granted in favour of the workman in  view of the fact that the industrial dispute had been raised after 18 years.   It  was obligatory on the part of the Labour Court to consider that the  respondent was in employment for very short period. It had also not arrived  at a finding that the respondent was in continuous service within the  meaning of Section 2(g) of the U.P. Industrial Disputes Act or for that matter  in terminating the services of the respondent, the appellant did not comply  with the requirements of law particularly Section 6-N thereof.   In absence of  such a finding, the High Court in our opinion should have interfered with the  Award.    

       It is now well-settled principle of law that "delay defeats equity".

       The Labour Court exercises its wide jurisdiction under Section 11A of  the Industrial Disputes Act, but such jurisdiction must be exercised  judiciously.  A relief of re-instatement with all back wages is not to be given  without considering the relevant factors therefor, only because it would be  lawful to do so.  As noticed hereinbefore, in this case, even the basic  requirements for grant of any relief had not been found by the Labour Court.   

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       In Haryana State Co-operative Land Development Bank v Neelam  [(2005) 5 SCC 91] this Court opined:-

"18. It is trite that the courts and tribunals having plenary  jurisdiction have discretionary power to grant an appropriate relief  to the parties.  The aim and object of the Industrial Disputes Act  may be to impart social justice to the workman but the same by  itself would not mean that irrespective of his conduct a workman  would automatically be entitled to relief.  The procedural laws like  estoppel, waiver and acquiescence are equally applicable to the  industrial proceedings.  A person in certain situation may even be  held to be bound by the doctrine of acceptance sub silentio.  The  respondent herein did not raise any industrial dispute questioning  the termination of her services within a reasonable time.  She even  accepted an alternative employment and has been continuing  therein from 10-8-1988. In her replication filed before the  Presiding Officer of the Labour Court while traversing the plea  raised by the appellant herein that she is gainfully employed in  HUDA with effect from 10-8-1988 and her services had been  regularised therein, it was averred:

"6. The applicant workman had already given  replication to the ALC-cum-Conciliation Officer,  stating therein that she was engaged by HUDA  from 10-8-1988 as clerk-cum-typist on daily-wage  basis.  The applicant workman has the right to  come to the service of the management and she is  interested to join them."

19.  She, therefore, did not deny or dispute that she had been  regularly employed or her services had been regularised.  She  merely exercised her right to join the service of the appellant."         

       Yet again in U.P. State Electricity Board  v. Rajesh Kumar, [(2003) 12  SCC 548], this Court held that although a period of limitation is prescribed  for making a reference, but facts and circumstances of each case is required  to be considered in dealing with stale claims.

       Recently in Assistant Engineer, C.A.D., Kota v. Dhan Kunwar [AIR  (2006) SC 2670], it was held; "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."

         See also Uttranchal Forest Development Corporation v. M.C. Joshi  [2007 (3) SCALE 545].  

       For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The Appeal is allowed.

       However, in the facts and circumstances of this case, there shall be no  order as to costs.