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O.P.Frank v. Dy. Labour Commissioner, Ghaziabad And Others - WRIT - C No. 43591 of 1999  RD-AH 1228 (27 October 2004)
Civil Misc. Writ Petition No. 43591 of 1999.
O.P. Frank ......................................................Petitioner.
Deputy Labour Commissioner, U.P.,
Lohia Nagar, Ghaziabad and others..........................Respondents.
Hon'ble R.B. Misra, J.
Heard Sri Subodh Kumar, learned Counsel for the petitioner; Sri B.D. Mandhyan, learned Senior Advocate assisted by Sri Satish Mandhyan, learned Counsel for the respondent no.3, and learned Standing Counsel for the State respondents.
(1) In this petition prayer has been made to quash the order dated 16.07.1999 (Annexure-3 to the writ petition) passed by the Deputy Labour Commissioner, U.P., Ghaziabad in proceedings under Section 2-A of the U.P. Industrial Disputes Act, 1947, whereby in respect of employees of M/s Ingraham Institute, Raj Nagar, Ghaziabad the respondent no.1 refused to refer the dispute to the Labour Court for adjudication and rejected the Industrial Dispute Case No. 248 of 1998 under Section 2-A of the Industrial Disputes Act on the ground of delay of 23 years.
(2) According to the petitioner, he was appointed as an Office Assistant on 22.07.1968 in an institution known as Ingraham Institute, Raj Nagar, Ghaziabad (hereinafter in short called as ''Institution'), which is running poultry form, dairy form, agricultural manufacturing, agricultural appliances etc. and by order dated 16.07.1975 the petitioner was promoted as Accounts Clerk, where his service was terminated by an order dated 6/7.11.1975 after paying him two months' salary in lieu of notice. The said termination order was challenged by the petitioner in the Civil Court by way of Suit No. 1090 of 1975 and on the stay application filed by the petitioner in the said suit the trial Court by its order dated 08.11.1975 stayed the order of termination. Thereafter, the management of the said institution by its order dated 15.11.1975 placed the petitioner under suspension and served a memo of charges/ charge-sheet to him and after obtaining petitioner's explanation passed a fresh termination order dated 10.01.1976. The petitioner prayed to quash the said termination order dated 10.01.1976 by filing afresh amendment application in the suit No. 1090 of 1975, however, the said suit was dismissed by the trial court on 18.04.1978 on the ground of alternative remedy, against which Civil Appeal No. 257 of 1978 too was dismissed by the appellate Court on 14.01.1981, however, the appellate court indicated that the nature of dispute is a nature of industrial dispute, which could be adjudicated upon at appropriate forum. Against above orders, the petitioner preferred a Second Appeal No. 340 of 1981, which too was dismissed by this Court on 16.12.1997 on the ground of alternative remedy. Thereafter, the petitioner sent a registered notice on 26.03.1993 to the ''institute' for settlement of dispute and when no heed was taken by the Director of the said institute the petitioner filed an application under Section 2-A of the U.P. Industrial Disputes Act, 1947 before the Regional Conciliation Officer/ A.L.C., Ghaziabad, which was registered as C.P. Case No. 248 of 1998. However, after issuance of notice from the Court of Assistant Labour Commissioner, U.P. and taking objections of the parties the said industrial dispute was not found to be referable after lapse of 23 years to the Industrial Tribunal, therefore, the same was rejected by order dated 16.07.1999 by the respondent no.1. Hence this writ petition.
(3) According to the petitioner, in view of the decision of the Supreme Court in 1999 (82) FLR 169 (Mahavir Singh Vs. U.P. State Electricity Board and others), where the industrial dispute was raised in March, 1983 i.e. with considerable delay in reference to the date of termination dated 12.11.1975 and on adjudication by the labour court the termination was held to be illegal, and it was further held that once the termination is held to be illegal entire reference of it could not be rejected on the sole ground of delay in raising the dispute.
(4) According to the petitioner while dismissing the Second Appeal Nos. 340 of 1981 and 339 of 1981 on 16.12.1997 this Court has concurred with the findings of learned courts below indicating that the impugned termination order of the petitioner was illegal, arbitrary and void, as no inquiry report was furnished to the petitioner, more so, without application of mind and without assigning any reason the termination order was passed, however, it was also held that the civil court has no jurisdiction to try the suit as the same was to be adjudicated under the Industrial Disputes Act.
(5) According to the petitioner, rejection of reference by the impugned order dated 16.07.1999 is in derogation to the objections made by the Supreme Court in 1993 (2) SCC 386, (Sarva Shramik Sangh, Bombay Vs. Indian Hume Pipe Co. Ltd. andanother) where the Supreme Court has held as under:-
"The Industrial Tribunal/Labour Court is supposed to be a substitute forum to the Civil Court. Broadly speaking, the relief which the Civil Court could grant in an Industrial Dispute can be granted by the Industrial Tribunal/ Labour Court. The Industrial Tribunal/Labour Court is not bound by technical rules of procedure which bind the civil court."
(6) On behalf of respondents it has been indicated that after the order of the Deputy Labour Commissioner, the petitioner did not approach under Section 4-K of the U.P. Industrial Disputes Act by moving before the State Government, which is an independent remedy.
(7) For convenience Sections 2-A and 4-K of U.P. Industrial Dispute Act are enumerated as under:-
"2.A. Dismissal etc. of an individual workman to be deemed to be an Industrial Dispute:- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a part to the dispute."
"4-K. Reference of Disputes to Labour Court or Tribunal.--Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication:
Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks first, make the reference to a Labour Court."
(8) It has been contended on behalf of respondents that at the time of filing the present writ petition it is already delay of 27 years and the petitioner was also gainfully employed during the past period and by virtue of his age he had already superannuated in the year 1993 and had he been deployed he would have earned more that what he was earning in the gainful employment elsewhere, therefore, the present case is a frivolous and vexatious for the sake of litigation. According to the respondents, wife of the petitioner was a permanent employee of the Howard Plested Girls Inter College, Meerut, which is a Government aided institution. According to the respondents, the said institute is run by the Methodist Church of India, which is a registered society, and Chairman of the said institute and the institution, where petitioner's wife is deployed, is same person and the petitioner being deployed in an educational institution can not be said to be governed and his case can not be said to be covered under the Industrial Disputes Act, as the said institute of the petitioner by virtue of carrying social welfare activities could not be termed as an industry.
(9) According to the respondents, the Supreme Court in (2000) 2 SCC 455 (Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and others) has observed that inspite of absence of a statutory limitation period for reference under the Industrial Disputes Act, such power can not be exercised to revive settled matters or to refer stale disputes and to assess that the dispute has become stale would depend on the facts and circumstances of each case and the Supreme Court in the instant case, where the workman was dismissed after lawful and properly conducting the disciplinary proceedings and his dismissal was upheld in appeal and the benefits legally due to him were paid then seven long years later raising of industrial dispute against his dismissal on the ground of two other employees dismissed in similar situation were reinstated and in those cases reference of the said dispute at this stage was held to be bad both on the grounds of delay as well as non-existence of an industrial dispute, more so, when the circumstances, under which the said two employees were dismissed and reinstated, were not specified.
In K.P. Madhavankutty (supra) the respondent was was a Clerk with the appellant Bank and disciplinary proceedings were duly conducted against him on the charges of misappropriation of a certain amount and falsification of records and the proceedings ended in his dismissal from service was subsequently upheld by the appellate authority. The respondent got whatever benefits were due to him under the relevant rules. About seven-and-a-half years later he served a notice on the Bank demanding his reinstatement on the ground that two other employees of the Bank under similar situation were reinstated. Moreover, the respondent started making successive attempts to get that dispute referred under Section 10 of the Industrial Disputes Act and after about a further period of six years, the appropriate Government made the reference. The validity of the reference was upheld by a Division Bench of the Kerala High Court, however, the Supreme Court while allowing the bank's appeal has held as under:-
"Law although does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the ID Act, this power cannot be exercised at any point of time and to revive matters which had already been settled. Power is to be exercised reasonably and in a rational manner. There is no rational basis on which the Central Government has exercised powers in the instant 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 is rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact 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." (Para-6)
"It is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended." (Para-7)
(10) On behalf of respondents, it was contended that the case of Mahavir Singh (supra) is not applicable in the present case, as the facts and circumstances of Mahavir Singh (supra) were different and distinguishable as there labour court had occasion to adjudicate the reference and took the view that the termination was illegal and in those circumstances, the Supreme Court had observed that once the termination was illegal, the entire reference could not have been rejected on the ground of delay alone. Here, in the present case the Labour Court had no occasion to adjudicate the issue in question.
(11) Learned Counsel for the respondents has placed reliance on AIR 2001 SC 69 (Management of M/s. Indian Iron & Steel Co. Ltd. Vs. Prahlad Singh), where the termination challenged as illegal after lapse of 13 years by the workman was held to be belated and the view of the Industrial Tribunal to declare the termination justified was approved by the Supreme Court.
(12) In 2000 (84) FLR 304 (U.P. State Electricity Board and another Vs. State of U.P. and others), this Court has observed that a reference under Section 4-K of the U.P. Industrial Disputes Act, normally a dispute, which is an industrial dispute, be referred by the State Government under Section 4-K of the U.P. Industrial Disputes Act so long such a dispute exists or the Government apprehends that such a dispute is likely to exist. However, in case there is undue and inordinate as well as unexplained delay, a presumption may arise on the facts and circumstances of a particular case that no dispute exists. In the said case this Court in para-10, 11, 14, 16, 17 and 18 has observed as under:-
"10. It was further held that in fact when the Government refuses to make a reference it does not exercise its powers; on the other hand it is only when it decides to refer that it exercises its powers. It was held in M/s Athertan Mills Kanpur v. State of U.P. and others[1996 (73) FLR 1682], that "........the settled view of this Court as well as of the Hon'ble Supreme Court is that employer is not to be given an opportunity of hearing before making a reference as in making reference the State Government cannot decide any dispute but it only sets the process of adjudication in motion where the employer shall get full opportunity."
"11. A reference may also be made to the cases of Indian Explosive Factories, Kanpur v. State of U.P. and others,[1981 (42) FLR 408 (D.B.)], M/s A-1 Services Production Agencies (P) Ltd. v. Industrial Tribunal Haryana and others [1978 (37) FLR 363], Abdul Rehman Haji and others v. Abdul Rehman and others [1979 (39) FLR 357] and Binni Ltd. v. Their Workman, [1972 (25) FLR 74 SC]."
"14. The question now arises whether in the facts and circumstances stated above the industrial dispute could have been referred by the State Government for decision. It cannot be disputed that under Section 4-K of the U.P. Industrial Disputes Act no limitation for raising the dispute is provided. The expression used in Section 4-K is that for the dispute can be raised at any time but it is clarified by the expression that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decided to refer for adjudication. This was the view taken by the Hon'ble Supreme Court in the case of Western India Watch Company Ltd. v. Western Indian Watch Company Workers Union and others (supra). It was held in para 8 that "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. The Court had, however, not decided the question whether in cases of inordinate and unexplained delay the reference can be made by the Government so as to jeopardize the interest of the employer. Such a situation has arisen in the case of Shalimar Works Limited v. Their Workmen, (AIR 1959 SC 1217), wherein it was held by the Court that even though no limitation is provided for making a reference of the disputes to the industrial tribunal yet such dispute should be referred within a reasonable time after the same have arisen and after the reconciliation proceedings have failed. The Court had held in paragraph 13 as follows:
"it is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that dispute 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, as in this case. The industry has to carry on and if for any reason there has been a wholesale discharge of the workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of the opinion that in this particular case dispute was not referred for adjudication within a reasonable time as it as sent to the industrial tribunal more than four years after even re-employment of most of the old workers.........."
"16. Learned counsel for the petitioners has also referred to the decision of this Court in M/s Arthertan Mills, Kanpur v. State of U.P. and others (supra), in which it was held that "it was not a case of mere lapse of time, but it is a case of long lapse of time after which a party cannot be expected to retain the evidence when admittedly the Management changed more than once. The State Government in these peculiar facts and circumstances, in my opinion, ought to have applied its mind seriously to the period already lapsed which brought about material changes. An industrial dispute is not expected to remain alive for such a long time. It was also not expected from the labour unions to raise such a stale and dead claim as industrial dispute before the State Government.........The law confers power on the State Government to refer a dispute and recognizes labour unions to espouse such dispute with a pious object to maintain peace and harmony in the industrial sector so that production may continue uninterrupted. Thus, the labour unions do not discharge a lesser responsibility in expousing the claim of the workmen before the State Government for making reference hence, this responsibility should be discharged with care, here failure appears on both ends."
"17. The petition filed by the employers in the said case was allowed and the order of the Government making a reference of the dispute was quashed. Similar view was taken by the Punjab and Haryana High Court as well as Bombay High Court in Karnal Central Co-operative Bank Ltd. v. Industrial Tribunal, Rothak and others [1994 (69) FLR 1006], and R. Ganeshan v. Union of India and others, [1993 (67) FLR 436], respectively. In Karnal Central Co-operative Bank's case (supra) the dispute was raised 10 years after the date of termination of service. The Court had observed that "if a workman has not shown any cause much less sufficient cause for invoking the jurisdiction of the Tribunal after a period of 10 years, it is not understood that when the State Government declined to refer the dispute in September, 1990 on the ground of delay, how it could refer the same in January, 1992 when the delay had further increased. I have seen the record and there is nothing to justify the making of the reference at such a belated stage. Consequently the impugned award based on this reference has to be quashed."
"18. In R. Ganeshan's case (supra) the Court had held that "the petitioner has been dismissed way back on the 8th of October, 1980. As far as the petitioner is concerned the order of dismissal came into effect on 8th of October, 1980. Nothing prevented the petitioner from raising the dispute soon thereafter. It is true that an application under Section 33 (2) (b) for approval was filed by the third respondent. That, however, in my view, is no bar for the petitioner to raise the dispute."
"It is true that the Act does not lay down any period of limitation. This, however, does not mean that a dispute can be raised at any time even after an inordinate delay that can be a legitimate ground for holding that there does not exist in presenti an industrial dispute." The Court had also referred to the cases of Bombay Union of Journalists v. State of Bombay [1964 (8) FLR 236 SC] and M/s Shaw Wallace and Company Ltd. v. State of Tamil Nadu [1987 (1) LLJ 177 (Madras High Court)]. In the first case the Supreme Court had held that if the claim made is patently frivolous, or is clearly belated the appropriate Government may refuse to make a reference. In the second case the Madras High Court had observed that if the claim is stale, is belated, it need be referred for adjudication."
(13) In reference to the pleadings of the parties, the observations of the Supreme Court in J.T. 1999 (3) SC 38 (Ajaib Singh Vs. The Sirhind Co-operative Marketing cum-Processing Service Society Ltd. & anr.) are necessary to be given as below:-
"The provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical deference. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages." (Para-10)
"In the instant case, the respondent-management is not shown to have taken any plea regarding delay as is evident from the issues framed by the labour court. The only plea raised in defence was that the labour court had no jurisdiction to adjudicate the reference and the termination of services of the workman was justified. The High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period."(Para-11)
(14) In this case, the respondents have specifically pointed out that after lapse of such a long period after the superannuation of the petitioner it would be difficult to bring the relevant records and to prove the authenticity of the same and the witnesses may not be relevant in adjudication of the issue in question. According to the respondents, the petitioner has endeavoured to linger on the issue and no precision would be indicated from the records and statements to be adduced by both the sides before any forum for the purpose of adjudicating the grievances of the petitioner. In view of such assertions, I am afraid of that the petitioner might not get the benefit of the observations of the Supreme Court in Ajaib Singh (supra).
(15) This Court in 2004 (1) U.P.L.B.E.C. 704 (Rashtriya Chaturth shreni Rail Mazdoor Congress (INTUC)Vs. Union of India and others) has observed that a reference of the matter was refused in respect of the writ petitioner, when the services of the workman were terminated in the year 1992 and after lapse of 8 years i.e. in the year 2000 dispute arose, which was refused by the Conciliation Officer for referring the dispute to the Industrial Tribunal-Cum-Labour Court as the dispute was stale having been raised after about 10 years and, therefore, no interference was made in the refusal of Conciliation Officer for not referring the dispute.
(16) I have heard learned Counsel for the parties. I find that it was the petitioner, who had taken the irrelevant steps of his choice and had wasted the valuable time and now twenty nine years have already lapsed from the date of termination. The observations of this Court while dismissing the second appeals can not be taken to strengthen the merits of cause of the petitioner, as this Court has declined to make any interference in the second appeal on the ground of alternative remedy. Since the employer the respondent has shown the real prejudice and not the hypothetical ground caused to him more so, after such a long lapse of time in adjudication of the cause of present petitioner, who had already superannuated, and it would be difficult for the system to deal the situations on the old documents at such belated stage. In these circumstances, the refusal of the Deputy Labour Commissioner to refer the matter can not be said to be irrational or illegal, therefore, this Court can not invoke its extraordinary discretionary jurisdiction under Article 226 of the Constitution at this stage to make any interference therein.
In view of the above observations, the writ petition is dismissed.
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