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Judgment
With the consent of learned counsel for the parties, the matter is finally heard.
2- This appeal at the instance of workman is directed against order dated 24.04.2018 passed in writ petition No.1317/2012.
3- The writ petition by respondent employer was directed against the Award dated 21.09.2011 passed by the Labour Court on a reference of
following industrial dispute:
^^D;k Jh Hkxokuflag firk Jh jkeLo:i dq'kokg dk vkosnu fnukad 14-1-04 dks izLrqr fd;k tkuk ldkj.k gS+\ ;fn gkWa rks fnuakd 1-1191 esa fd;k x;k lsok
i`Fkdhdj.k oS/k ,oa mfpr gS\ ;fn ugha rks fdl lgk;rk ds ik= gS ,oa bl laca/k esa fu;ksDrk dks D;k funsZ'k fn;s tkus pkfg,\^^
(Whether an application dated 14.01.2004 filed by Shri Bhagwan Singh son of Shri Ramswaroop Kushwaha was justified? If yes then whether the
termination dated 1.11.91 is valid and legal? If not then what relief he is entitled and what direction can be issued to the employer?)
4- Before the Labour Court the facts came on record through pleadings and evidence were that the workman was engaged as groundsman on daily
wages w.e.f. 1.11.1991. His services were terminated by oral order on 1/3/1994 without adhering to the provisions of Section 25 F of Industrial
Disputes Act, 1947. This led the Labour Court direct for reinstatement with back wages. However, taking into consideration that the dispute was
raised after 12 years, the back-wages were declined.
5- The employer challenged the Award on the ground of delay and laches, which found favourwith learned Single Judge. By relying on the judgment
by the Supreme Court in Prabhakar Vs. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1, learned Single Judge reversed the
Award, holding :
“18. ….......Since workman had failed to raise the dispute immediately after his retrenchment/ termination and there is no material on record
placed by workman that there was any talk with the management or any representation was pending before the management or there was any
assurance by the management to reinstate him, to wait for 11 years in fact attributes delay and laches leading to application of principle of
acquiescence and therefore in terms of the ratio contained in para 42.6 of the judgment in the case of Prabhakar (supra), this court is of the opinion
that the respondents/workmen has failed to raise the dispute in the present case promptly and therefore in the absence of cogent rebuttal on the aspect
of delay and laches raised by the petitioner's counsel, this court is of the opinion that both the petitions deserve to be allowed and are allowed. The
impugned award passed by the learned Labour Court is set aside on the ground that the workman had waived his rights on the principle of
acquiescence.â€
6- The question which arises for consideration is whether learned Single Judge was justified in holding that because of delay in raising the dispute, the
workman had waived his rights on the principle of acquiescence.
7- Be it noted that the Labour Court was in seisin with the dispute referred to it by the appropriate Government before whom the workman had raise
the dispute; there is no material on record to suggest that the employer raise any objection as to non-existence of a dispute. In absence whereof and
the fact that the appropriate government being satisfied of existence of an industrial dispute referred the same for adjudication to the Labour Court.
8- In Prabhakar (Supra), it is held by their Lordships :
“12. 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 referenceâ€. 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
“workmanâ€. 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.†9- It is further observed :
“28. The aforesaid case law depicts the following:
28.1. Law of limitation does not apply to theproceedings under the Industrial Disputes Act, 1947.
28.2. The words “at any time†used in Section 10would support that there is no period of limitation in making an order of reference.
28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a
stale claim and if that is so, the reference can be refused.
28.4. Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect
which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the
order of reference.
On the basis of aforesaid discussion, wesummarise the legal position as under:
42.1. An industrial dispute has to be referred bythe 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 apprehendedâ€. 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 partymake a demand and 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 givesright 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 “deadâ€, then it would be non-existent dispute which cannot be referred.
42.4. Take, for example, a case where the workmanissues 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 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 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.â€
10- In the case at hand reference of dispute by the appropriate Government established the existence of the 'industrial dispute' in praesenti at the time
when application was made, the Labour court, in our considered opinion did not err in answering the reference in favour of the workman. And as the
adjudication sought by the workman of the industrial dispute was belated at his instance, the Labour Court was justified in moulding the relief, of
depriving the workman of the back-wages.
11- The impugned order when is tested on the anvil of above analysis, it cannot be sustained, therefore, set-aside. The Award passed by Labour Court
is upheld.
12- The appeal is allowed to the extent above. No costs.