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Judgment
Heard learned counsel for the parties
The present writ petition has been filed by the petitioner-workman for quashing the Award dated 05.07.2004 passed in Ref. No. 16 of 1996 by the Presiding Officer, Labour Court, Bokaro Steel City, Bokaro whereby reference has been answered against the workman.
From the arguments, it appears that the concerned workman namely A.K. Charmodak has been appointed under the respondent-SAIL on the post of Electrician having Staff No. 239394 on 21.02.1973. Firstly, he has been charged vide Memo of Charge dated 27.02.1989 for 94 days absent from January, 1988 to January, 1989 and subsequently vide Memo of Charge dated 26.04.1989 for 8 days absent from 17.04.1989 to 24.04.1989. On the basis of the above charges, domestic enquiry has been conducted and thereafter, the petitioner-workman has been terminated from service vide order dated 06.12.1989. It appears that after termination, the petitioner has been appointed afresh on 21.09.1991 on casual basis having Staff No. 696908. Subsequently, he has been regularized on the said post w.e.f. 06.04.1993. The petitioner-workman had worked till the age of superannuation and retired on 31.01.2011.
After regularization in the year 1993, an Industrial Dispute has been raised, which has been referred as Ref. No. 16/96 raising the dispute with regard to earlier employment under the same Management having Staff No. 239394.
Terms of reference is in following terms:
"Whether the termination of services of Sri A. K. Charmodak, Electrician, Staff No. 239394, the Department of Slabbing Mill, M/s Bokaro Steel Plant, Bokaro Steel City from 6.12.89 is proper ? If not, what relief the workman is entitled to ?"
The Labour Court vide order dated 12.07.2001 has declared the domestic enquiry is not fair and proper. Both the parties have been given opportunity to justify the order of termination. Ultimately after hearing the parties, reference has been answered against the workman on merit after considering the evidences.
Learned counsel for the petitioner has submitted that the period of absence has not been evidenced rather it is a case of no evidence.
On the other hand, learned counsel for the respondents has submitted that the period has been evidenced by producing pay-slip wherein period of work has been mentioned.
It is admitted position that the concerned workman has been appointed in the year 1973 having Staff No. 239394. This employment has come to an end by order of termination dated 06.12.1989, and this relationship of Employer and Employee has been disputed in the present Industrial Dispute. Subsequently, the petitioner has been given fresh appointment on 21.09.1991 on the same post on casual basis having Staff No. 696908 and subsequently, he has been regularized on the said post w.e.f. 06.04.1993. Thus, this appointment is completely a new appointment and has no connection with the earlier appointment.
Section 2(k) of the Industrial Disputes Act, 1947 is quoted hereinbelow:
"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
As per Section 2(k) of the Industrial Disputes Act, 1947, Industrial Dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
Thus, there must be relationship between employer and workman or termination must be in dispute. If the termination has been accepted by accepting fresh employment, no dispute survives so far as past employment is concerned. Reference can be made to the judgment rendered by the Apex Court in the case of Prabhakar Vs. Joint Director, Sericulture Department and Anr. reported in 2015(15) SCC 1. Relevant para 10 to 16 and 42 are quoted hereinbelow:-
Before we proceed to deal with the aforesaid questions, it would be proper to discuss the power of "appropriate Government" under Section 10 of the Act in referring or refusing to refer the dispute for adjudication. It is a peculiar position provided under the Act that an aggrieved workman cannot approach the Labour Court or Industrial Tribunal directly for adjudication of "industrial dispute". Except those cases falling under Section 2-A of the Act, he has to seek reference of dispute to the Labour Court/Industrial Tribunal under Section 10 of the Act. "Appropriate Government", as defined under Section 2(a) of the Act, is empowered to refer the dispute. Section 10(1) stipulates that "appropriate Government" may, at any time, by order in writing, refer the dispute to a Board, Labour Court or Industrial Tribunal where "it is of the opinion that any industrial dispute exists or is apprehended". Interpreting this Section, way back in the year 1953, this Court in State of Madras v. C.P. Sarathy5 stated the following propositions: (AIR p. 57, para 14)
(i) The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an "industrial dispute" exists or is "apprehended";
(ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide;
(iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and
(iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended.
These propositions were based on unamended Act which did not contain the words "where the appropriate Government is of the opinion".
In Western India Match Co. Ltd. v. Workers' Union6, this Court took support of C.P. Sarathy case5 to hold that function of the appropriate Government to make reference under Section 10(1) is an administrative function. This view that the appropriate Government is performing an administrative act and not judicial or quasi-judicial act while making reference is found in various judicial pronouncements made by this Court even thereafter.
The satisfaction of the existence of an industrial dispute or the satisfaction that an industrial dispute is apprehended is "a condition precedent to the order of reference". An order of reference cannot be made mechanically without forming an opinion. For formation of the necessary opinion, the "appropriate Government" must also be satisfied that a person whose dispute is being referred for adjudication is a "workman". If the dispute is not between an employer and his workman, it is not an "industrial dispute" and the Government can justifiably refuse to refer the dispute. From the material placed before it, the Government reaches an administrative decision whether there exists an existing or apprehended industrial dispute. In either event, it can exercise the power under this Section.
The adequacy or the sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
When the "appropriate Government" makes a reference of an industrial dispute for adjudication, it does not decide any question of fact or law. The only condition, which the exercise of that power should satisfy, is that there should be the existence or apprehension of an industrial dispute. When once the Government is satisfied about this question, it acquires jurisdiction to refer the dispute for adjudication. However, the condition precedent to the formation of such opinion, that there should be an existing or apprehended "industrial dispute", is imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the Court to exercise its power of judicial review and to determine whether, in fact, there was any material before the "appropriate Government" and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was apprehended and it was expedient to make the reference. Therefore, an order of reference is open to judicial review if it is shown that the appropriate Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration.
Likewise, when the appropriate Government refuses to make reference, it is also amenable to judicial review if it is shown that the appropriate Government did not take into consideration the relevant material which could show existence or apprehension of industrial dispute or if it is shown that the reasons for refusing to make reference are irrelevant or not germane to the formation of opinion.
It has been held in a catena of judgments that while performing this administrative function, the Government would not decide the dispute between the parties which may be termed as judicial function and such judicial function is to be discharged by the Labour Court/Industrial Tribunal only. In Ram Avtar Sharma v. State of Haryana, this Court held that if the Government, while refusing to make reference delves into the merits of the dispute, it is not permissible under law and the appropriate course to make reference and such dispute is to be settled/decided by the Labour Court/Industrial Tribunal as an adjudicatory authority. The following observations of the Court are worth noting: (SCC p. 195, paras 6-7)
"6. ... Therefore the view that while exercising power under Section 10(1) the functions performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.
Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that the industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth extraneous and irrelevant reasons not for justice of industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review.
On the basis of the aforesaid discussion, we summarise the legal position as under:
42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that "any industrial dispute exists or is apprehended". The words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.
42.2. Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.
42.3. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred.
42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.
42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted."
In the present case, by accepting fresh employment in the year 1993 with a fresh staff number is nothing, but abandoned the earlier employment. The present dispute has been raised in the year 1996 i.e. after five year of getting fresh employment. Thus, in the present case, learned Labour Court has rightly held that the dispute involved in the present reference is stale. Further on merit, it has also been held that unauthorized absent has sufficiently been evidenced by producing pay-slip, which indicates that concerned employee was absent.
In view of the above discussion and judicial pronouncement, this Court finds no merit in the present writ petition. Accordingly, the same is, hereby, dismissed.