Kuldeep Singh vs Instrument Design Development & Facilities Centre

Kuldeep Singh .... Appellant (s)

Versus

G.M., Instrument Design Development and Facilities Centre & Anr. .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) Leave granted.

2) This appeal is filed against the judgment and order of

the High Court of Punjab & Haryana at Chandigarh dated

31.10.2006 in CWP No. 8774 of 2005 wherein the Division

Bench of the High Court confirmed the award passed by

the Labour Court, Ambala and dismissed the writ petition

1 filed by the appellant herein for reinstatement with full

back wages and other consequential benefits.

3) Brief facts:

(a) It is the case of one Sh. Kuldeep Singh, the

appellant/workman, that on 08.10.1990, he was

appointed as Data Entry Operator on daily wages and he

worked as such till 28.11.1991 and thereafter on ad-hoc

basis and worked up to 26.05.1992 without any break

when his services were terminated by the Instrument

Design Development and Facilities Centre (IDDC)-the

respondent/management herein. According to him, no

notice or compensation in lieu thereof was given for

terminating his services though he had worked for 240

days in the preceding 12 months. According to the

appellant workers junior to him were retained and even

fresh appointments were made after the termination of his

services which is in violation of provisions of Sections 25F

2 to H of the Industrial Disputes Act, 1947 (in short "the

Act").

(b) It is the case of the respondent/Management that the

appellant/workman was working on daily wages to meet

the exigencies of work and his contract of employment

was on day to day basis and that the workman did not

render duty for requisite number of days in the 12

preceding months as claimed. It was further denied that

any worker junior to the appellant was retained in service

or any fresh appointment was made.

(c) On 12.12.2003, the Labour Court, after adverting to

the reference made by the Governor of Haryana as to the

non-employment of the appellant and after framing

necessary issues has held that the

respondent/Management is an industry within the

meaning of Section 2(j) of the Act and found that the

workman rendered the duty for more than 240 days in the

12 preceding months but the Management terminated his

3 services without complying with the provisions of Section

25F of the Act, so the order impugned is illegal, null and

void and deserves to be set aside. Having found so on the

material issues 1, 5 and 6 in favour of the workman,

however, on the ground of delay in raising the demand

and finding that the reference is bad and incompetent

being raised so belatedly dismissed the claim of the

workman.

(d) Aggrieved by the dismissal of his claim, the workman

filed Civil Writ Petition No. 8774 of 2005 before the High

Court of Punjab & Haryana at Chandigarh. By the

impugned judgment dated 31.10.2006, the Division Bench

of the High Court by holding that the unexplained

inordinate delay has rendered the dispute in question as

patently stale accepted the award of the Labour Court and

dismissed the writ petition. Questioning the same, the

workman has filed the above appeal by way of special

leave.

4

4) Heard Mr. B.S. Mor, learned counsel for the

appellant/workman and Mr. Shishpal Laler, learned

counsel for the respondent/Management.

5) The point for consideration in this appeal is whether

the Labour Court and the High Court justified in rejecting

the claim of the workman merely on the ground of delay

when the Labour Court concluded in categorical terms

that the termination of the services of the workman by the

Management without complying with the provisions of

Section 25F of the Act is illegal, null and void and

deserves to be set aside.

6) It is not in dispute that the appellant was terminated

from service w.e.f. 26.05.1992. It is the claim of the

workman that he has worked as Data Entry Operator from

08.10.1990 to 28.11.1991 and thereafter, on ad hoc basis

from 28.11.1991 to 26.05.1992 and since he had worked

for more than 240 days in the 12 preceding months and

his juniors were retained in service and fresh

5 appointments were also made after his termination, the

act of the Management is in violation of the provisions of

Section 25 F to H of the Act.

7) After prolonged correspondence, the Governor of

Haryana in exercise of power conferred under Section

10(1)(c) of the Act, has made the following reference

between the appellant/workman and the

respondent/Management to the Labour Court, Ambala for

adjudication by way of notification bearing No. 62638

dated 22.11.1999:

"Whether the termination of services of the workman Kuldeep Singh is valid and justified, if not so, to what relief including back wages is he entitled?"

8) Before considering the order of reference, it is

worthwhile to refer Section 10 of the Act. Chapter-III of

the Act speaks about reference of Disputes to Boards,

Courts or Tribunals. We are concerned with Section 10 (1)

which reads as under:

6

"10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

xxx xxxxx"

Based on the above provision, on the application of the

workman, the Government of Haryana made the above

reference to the Labour Court, Ambala. On receipt of the

reference from the State Government, the Court assigned

it as reference No. 254 of 1999. Both the workman and

the Management filed their written statements before the

Labour Court. The Labour Court, based on the claim of

both the workman and the Management framed the

following issues for trial:-

7 (1) Whether the termination of services of workman Kuldeep Singh is valid and justified? If not so to what relief including back wages is he entitled?

(2) Whether the reference is not maintainable as alleged in preliminary objection No1 of the written statement? OPM

(3) Whether the respondent-Management is an industry, if so, to what effect? OPM

(4) Whether the reference is bad on account of delay and laches as alleged in preliminary objection No.2 of the WS? OPM

(5) Whether the workman was appointed on ad hoc basis and against a specific work and after the completion of work his services came to an end and if so, to what effect? OPM

(6) Whether the workman did not complete mandatory 240 days as alleged? OPM

9) Before the Labour Court, both the parties led

evidence in support of their respective claims. The

workman, as WW-1, reiterated about his service

particulars as stated in his claim petition and also marked

documents A-E in support of his claim. On the other

hand, one Balbir Singh, S.O., was examined as MW-1 on

the side of the Management. Appointment letter of the

workman was marked as Exs.M1 & M2. The relevant

8 pages of the attendance register are marked as Exs. M3 to

M16. MW-1 asserted that the Management never removed

the workman from service and he has not rendered the

duty for 240 days in the preceding 12 months. After

considering the claim of both parties in the form of oral

and documentary evidence, in respect of issues 1, 5 and 6,

the Labour Court, in para 19, has concluded thus:

"Workman rendered the duty for more than 240 days in the 12 preceding months, as I held above, but the Management terminated his services without complying with the provisions of Section 25F of the Industrial Disputes Act, so the order impugned is illegal, null and void and deserves to be set aside. Accordingly, issue Nos. 1, 5 & 6 are decided in favour of workman."

10) It is clear that the Labour Court, on appreciation of

oral and documentary evidence, has concluded that the

termination of the workman i.e. the appellant herein is

illegal, null and void and deserves to be set aside. This

finding has become final since the Management did not

question the same by way of writ petition.

11) It is not in dispute that with regard to issue No.3, the

Labour Court has concluded that the Management-the

9 respondent herein is an industry within the meaning of

Section 2(j) of the Act.

12) The Labour Court has concluded that the workman

had raised the demand of reference after more than five

and a half years of his termination and has not offered

plausible and convincing explanation. On the other hand,

it is the claim of the workman that though his services

were terminated on 26.05.1992, all along, he was agitating

the issue with the Government in one form or other and

by making representation to various authorities. Having

found the termination void and contrary to the provisions

of the Act, the Labour Court dismissed the claim of the

workman only on the ground of delay.

13) The appellant/workman has furnished the following

information to show that after termination, he made

several representations to various authorities. They are:

(i) Representation dated 10.06.92 to the Hon'ble Minister of respondents' department.

(ii) Representation dated 11.05.93 to the Chief Secretary of Haryana State.

10 (iii) Representation dated 7.12.94 to the General Manager, IDDC., Ambala

(iv) Representation dated 4.1095 to the General Manager, ID.D.C., Ambala

(v) Representation dated 16.7.96 to the Manager, HARTON, Chandigarh.

Besides that, he attempted for the same job twice as under:

(i) Applied and interviewed for the same post out of 4 vacancies advertised in the Tribune dated 19.09.92.

(ii) Applied and interviewed for the same post out of 60 vacancies in the Sunday Tribune dated 14.5.1995.

The factual details have not been seriously denied by the

Management.

14) We have already noted that the Labour Court held

that the appellant has completed 240 days in 12

preceding months and the respondent/Management

terminated his services without complying with the

provisions of Section 25(f) of the Act and that the order of

termination dated 26.05.1992 is illegal, null and void and

deserves to be set aside but only on the ground of delay

rejected his claim in its entirety.

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15) Let us consider whether the Labour Court and the

High Court justified in rejecting the claim of the workman

only on the ground of delay in making the reference, more

particularly, when the Labour Court found that the

termination is bad and contrary to the Act. It is not in

dispute that there is no limitation prescribed for making

reference to the Government under Section 10 of the Act.

It is useful to refer to the decision of this Court in Sapan

Kumar Pandit vs. U.P. State Electricity Board and

Others, (2001) 6 SCC 222 which is directly on the point in

the case on hand. In that case, the appellant was

appointed as a Clerk on 01.01.1974 in the Electricity

Distribution Division, Mathura of the U.P. State Electricity

Board, but his services were terminated on 17.07.1975.

He raised an industrial dispute that the termination of his

services was illegal. The State Government, by an order

dated 29.03.1993, referred the dispute to the Labour

12 Court for adjudication as per Section 4-K of the U.P.

Industrial Disputes Act.

"Whether termination of the appellant on 17.07.1975 by the employer was proper and legal; if not so, to what reliefs the workman is entitled?"

The Labour Court took up the reference as Adjudication

Case No. 158 of 1993. The respondent Board filed a writ

petition before the Allahabad High Court assailing the

aforesaid reference order and also praying for quashing

the adjudication case pending in the Labour Court. The

appellant was arrayed as Respondent No. 5 in the writ

petition. A Single Judge of the High Court took the view

that the delay is so inordinate that the dispute has ceased

to exist by efflux of time and hence no reference under the

U.P. Act should have been made. Accordingly, the order of

reference passed by the Government was quashed by the

High Court holding that the workman kept silent for more

than 15 years and he woke up only after the petition of

other co-workmen was allowed and he made no efforts to

13 get his dispute referred to the Industrial Tribunal or

Labour Court. By holding so, allowed the writ petition of

the Management. The decision further shows that along

with the appellant, the Board retrenched ten other

workmen. Though the Industrial Tribunal passed an

award granting retrenchment compensation and certain

further other reliefs, the Union was not satisfied with the

said award and they filed a writ petition in 1980 before the

High Court of Allahabad. On 28.04.1988, the High Court

allowed that writ petition and held that retrenchment was

bad in law and the workmen concerned are entitled to be

reinstated. Though the Board filed special leave petition

in this Court which was dismissed in 1989. According to

the appellant, he was entertaining the expectation that the

Board would extend the same benefit to him. He was

proceeding with his request to the Board that he should

be treated on par with eight workmen some of whom were

reemployed by the Board. When the appellant found that

14 this was not done, he approached the Conciliation Officer

appointed by the State Government. His application for

condoning the delay in initiating conciliation proceeding

was disallowed by the Conciliation Officer. However, the

Deputy Labour Commissioner went to his rescue as the

delay was condoned and the conciliation proceedings were

revived. This happened on 28.01.1992. It was in the

aforesaid background that the State Government made

the reference for adjudication on 29.03.1993. Section 4-K

of the U.P. Industrial Disputes Act is almost in tune with

Section 10 of the Industrial Disputes Act, 1947 and also

there is no time limit fixed for making the reference for a

dispute for adjudication. Considering the identical words

i.e., "at any time" used in Section 10 (1) of the Act and

Section 4 of the U.P. Industrial Disputes Act, considered

the main question namely, "Was the industrial dispute in

existence on the date of reference for adjudication?" While

considering the same, a three-Judge Bench decision of

15 this Court as to the scope of the very same provision,

namely, Section 4-K of the U.P. Industrial Disputes Act

was cited before the Bench. In M/s Western India Match

Co. Ltd. vs. The Western India Match Co. Workers

Union and Ors., (1970) 1 SCC 225 = AIR 1970 SC 1205,

the learned Judges made the following observations:-

"Therefore, the expression `at any time', though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the Conciliation Officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can `at any time', i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression `at any time' thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression `at any time' in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjourned or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence."

Based on the interpretation of the three-Judge Bench, it

was concluded:

16

"15. 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 case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government has chosen to refer the dispute for adjudication under Section 4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."

After saying so, allowed the appeal of the workman and

set aside the judgment of the High Court.

16) Learned counsel appearing for the Management

heavily relied on the decision of this Court in Nedungadi

Bank Ltd. vs. K.P. Madhavankutty and Others, (2000)

2 SCC 455, particularly, the ultimate conclusion in para 6

which reads thus:

"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

17 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."

17) Though this decision lays down that law does not

prescribe any time limit for appropriate Government to

exercise its power under Section 10 of the Act, the Court

has concluded that the said power is to be exercised

reasonably and in a rationale manner. In that case, the

Central Government exercised its power after a lapse of

about seven years of the order dismissing the workman

from service. A perusal of the said decision shows that

18 the workman has not furnished adequate

reasons/materials for such a long delay and the only

ground advanced by him was that two other similarly

placed employees dismissed from service were reinstated.

18) It is true that following the decision in Nedungadi

Bank Ltd. (supra), another two-Judge Bench of this Court

in Haryana State Coop. Land Development Bank vs.

Neelam, (2005) 5 SCC 91 accepted the similar claim of the

Management and non-suited the workman on the ground

of delay.

19) We have already pointed out that there is no

limitation prescribed in the Act or in any other local Act

prescribing such period. We have also referred to the

materials placed by the workman. By making various

representations from the day when his services were

terminated and till his last representation dated

16.07.1996 to the Manager, HARTON, Chandigarh the

workman has proved that he was agitating his termination

19 one way or other with all the authorities concerned. The

particulars furnished clearly show that the

appellant/workman was fighting for his cause before the

Management as well as with the State Government

including the Chief Secretary and the Minister of the

concerned Department. Ultimately, the State Government

has made a reference on 22.11.1999 to the Labour Court

for adjudication.

20) The view expressed in Sapan Kumar Pandit (supra)

which is identical to our case has been considered and

followed in the subsequent decision, namely, S.M.

Nilajkar and Others vs. Telecom District Manager,

Karnataka, (2003) 4 SCC 27. In both the decisions, the

principles laid down in Nedungadi Bank (supra) have

been considered and distinguished. We have already

mentioned that in Sapan Kumar Pandit (supra), this

Court followed the principles enunciated in three-Judge

Bench decision of Western Indian Match Co. (supra). At

20 this juncture, it is useful to remind and reiterate the

finding rendered by the Labour Court on issue Nos. 1, 5

and 6 holding that the termination of the services of the

workman/appellant herein without complying with the

provisions of Section 25F is illegal, null and void and

deserves to be set aside. Undoubtedly, the Management

has to follow the provisions of the Act while effecting

termination, in fact, which was accepted by the Labour

Court and the Management has not challenged the same

before any forum.

21) In view of the above, law can be summarized that

there is no prescribed time limit for the appropriate

Government to exercise its powers under Section 10 of the

Act. It is more so in view of the language used, namely, if

any industrial dispute exists or is apprehended, the

appropriate government "at any time" refer the dispute to

a Board or Court for enquiry. The reference sought for by

the workman cannot be said to be delayed or suffering

21 from a lapse when law does not prescribe any period of

limitation for raising a dispute under Section 10 of the

Act. The real test for making a reference is whether at the

time of the reference dispute exists or not and when it is

made it is presumed that the State Government is

satisfied with the ingredients of the provision, hence the

Labour Court cannot go behind the reference. It is not

open to the Government to go into the merit of the dispute

concerned and once it is found that an industrial dispute

exists then it is incumbent on the part of the Government

to make reference. It cannot itself decide the merit of the

dispute and it is for the appropriate Court or Forum to

decide the same. The satisfaction of the appropriate

authority in the matter of making reference under Section

10(1) of the Act is a subjective satisfaction. Normally, the

Government cannot decline to make reference for laches

committed by the workman. If adequate reasons are

shown, the Government is bound to refer the dispute to

22 the appropriate Court or Forum for adjudication. Even

though, there is no limitation prescribed for reference of

dispute to the Labour Court/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, when

disputes relate to discharge of workman. If sufficient

materials are not put forth for the enormous delay, it

would certainly be fatal. However, in view of the

explanation offered by the workman, in the case on hand,

as stated and discussed by us in the earlier paragraphs,

we do not think that the delay in the case on hand has

been so culpable as to disentitle him any relief. We are

also satisfied that in view of the details furnished and the

explanation offered, the workman cannot be blamed for

the delay and he was all along hoping that one day his

grievance would be considered by the Management or by

the State Government.

23

22) In the light of the above discussion and conclusion,

we set aside the award of the Labour Court insofar as

holding that the reference by the State Government is bad

and incompetent being raised so belatedly and dismissing

the claim statement on this ground and the order of the

High Court dated 31.10.2006 in C.W.P. No. 8774 of 2005

affirming the said order of the Labour Court and

dismissing the writ petition filed by the workman. In view

of the conclusion of the Labour Court with regard to Issue

Nos. 1, 5 and 6 deciding in favour of workman holding

that the Management terminated his services without

complying with the provisions of Section 25F of the Act

and the said order is illegal, null and void deserves to be

set aside, we order reinstatement of the appellant-

workman with consequential service benefits but without

back wages within a period of eight weeks. Since the

appellant is fighting for his survival for more than a

decade, we award a cost of Rs.50,000/- to be paid by the

24 respondent-Management directly to the

appellant/workman within the same period.

23) The appeal is allowed to the extent mentioned above.

..........................................J. (P. SATHASIVAM)

..........................................J. (DR. B.S. CHAUHAN) NEW DELHI;

DECEMBER 3, 2010.

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