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CASE NO.: Appeal (civil)  2103 of 2004

PETITIONER: U.P. State Road Transport Corporation

RESPONDENT: Babu Ram

DATE OF JUDGMENT: 04/07/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.  

Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court dismissing  the writ petition filed by the appellant.   

The background facts as projected by the appellant are  as follows:

The respondent was appointed on purely temporary basis  in the year 1980 to meet the urgent needs during the Khumbh  Festival.  It was clearly mentioned in the appointment letter  that service of the respondent, as well as the similar situated  persons, was purely of temporary nature and can be  terminated at any time without prior intimation.  The  respondent was engaged from time to time to meet the need  for specific time bound work.  As there was no further need for  engaging the respondent and others, their services were  terminated by order dated 19.9.1983.  By order dated  29.8.1998 the Deputy Labour Commissioner referred following  dispute for adjudication under U.P. Industrial Disputes Act,  1947 (in short ’the Act’):

"Whether termination of service/retrenchment  of workman Sh. Baburam, S/o Nathhu Singh,  Chawkidar by his employers w.e.f. 19.09.1983  is legal and/or valid?  If not, then to what  relief/compensation the concerned workman is  entitled?"

       By order dated 11.11.2002 the Presiding Officer, Labour  Court, Allahabad, Rampur held that the  termination/retrenchment of the respondent w.e.f. 19.9.1983  was illegal and invalid. Consequently the Labour Court  directed that respondent should be reinstated with continuity  of service and be paid back wages and other benefits.   

One of the contentions of the appellant before the Labour  Court was that the reference was based on a belated claim.  There was no specific finding recorded by the Labour Court in  this regard. A writ petition was filed before the Allahabad High  Court. Before the learned Single Judge, the appellant  submitted that the respondent has not offered any explanation  for the belated claim raised after 15 years in view of the fact  that the grievance of the respondent was raised in the

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conciliation proceedings initiated in 1998. The High Court  dismissed the writ petition.   

       Learned counsel for the appellant in this appeal re- iterated the contentions urged before the High Court. Learned counsel for the respondent on the other hand  submitted that the delay of about 15 years has been condoned  by the Assistant Commissioner/Deputy Commissioner. It  cannot therefore be said that there was any delay.

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."

       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

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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."  

       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).

It is to be noted that the High Court has very cryptically  disposed of the writ petition. The workman has not placed any  material to show that it had raised dispute within a reasonable  time, and/or that he was not responsible for delayed decision  if any in the conciliation proceedings.  It was for him to show  that the dispute was raised within a reasonable time and that  he was not responsible for any delay. The High Court, on a  hypothetical basis has assumed that the dispute might have

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been raised promptly but delayed by the State Government  and he cannot be penalized for delay in finalizing the  conciliation proceedings and the reference.  But neither the  Labour Court nor the High Court has even noted the factual  position. The conclusion was based on surmises and  conjectures.  

That being so, the order of the High Court is clearly  unsustainable. We, therefore, set aside the order of the High  Court and remit the matter to the High Court to consider the  question of delay in seeking reference and decide the matter  afresh in accordance with law.   

The appeal is accordingly disposed of. No costs.