General Manager ANIIDCO Limited vs R. Alangaram And Others

Debangsu Basak, J

The employer has assailed an award dated September 25, 2019 passed by the Labour Court.

Learned advocate appearing for the petitioner has submitted that, the reference made under was stale when the reference was made. She has submitted that, there were a number of workmen covered by such reference. All the claims of all the workmen were stale. As and by way of an example, she has taken the incidence of one of the workman involved in the reference. She has submitted that, such workman was a initially appointed in 1996 and was subsequently regularised in 1999. For the period from 1996 being the initial appointment till the regularisation in 1999, such workman was engaged on contract basis. The workman had accepted such contract. The workman did not challenge the same at any point of time. This position is more or less prevalent for all the workmen involved in the reference. Thereafter, the impugned reference was made in 2014. She has submitted that, there was no explanation for the delay in making such reference. The issue as to whether, the reference suffers from unexplained delay has not been decided by the Labour Court. According to her, an employer cannot be fastened with financial burden after about 17 year from the date of the appointment. In support of her contentions, she has relied upon (2015) 15 Supreme Court Cases 1 (Prabhakar vs. Joint Director, Sericulture Department and another), (2000) 2 Supreme Court Cases 455 (Nedungadi Bank Ltd. vs. K.P. Madhavankutty), (2009) 13 Supreme Court Cases 746 (State of Karnataka and another vs. Ravi Kumar), (2006) 6 Supreme Court Cases 481 (Asstt. Engineer, CAD Kota vs. Dhan Kunwar) and (2006) 5 Supreme Court Cases 433 (U.P. State Road Transport Corpn. vs. Babu Ram).

Learned advocate appearing for the employer has drawn the attention of the Court to the cross-examination of the witness of the workmen. She has submitted that, in the cross-examination, the workmen has admitted that the workmen was engaged on contractual basis. Therefore, according to her, the impugned award suffers from perversity as the impugned award did not take into consideration the fact that, the engagement of the workmen was on a consolidated rate and therefore the workmen cannot claim anything beyond contractual amount.

Learned advocate appearing for the workmen has submitted that, the point of delay and latches in approaching the Labour Court was never taken by the employer before the Labour Court. He has submitted that, the claim made by the workmen cannot be said to be stale inasmuch as, the claim was on the basis of a continuing wrong which the employer was perpetuating upon the workmen. He has submitted that, similarly situated workmen were granted relief up to the Division Bench level of the High Court. The workmen are entitled to 1/30th of the basic minimum pay plus dearness allowance for the work done. The same cannot be denied to the workmen.

By the impugned award, the Labour Court has decided on the following reference:-

"Whether the Demand of the ANIIDCO Employees Solidarity Union for payment @ 1/30th pay of minimum Pay Scale plus DA as per OM No. 4914/2/86-Estt dated 07.06.1988 to the left out 84 employees from the date of their initial appointment as DRM/Contract basis engagement by ANIIDCO is legal and justified? If not, what relief the workmen are entitled to?"

The reference as framed and referred to the Labour Court establishes that, there were other workmen similarly situated and circumstanced as that of the workmen referred to the Labour Court.

In the facts of the present case, the workmen concerned were engaged through a selection process on contract basis for different posts under the employer for a consolidated pay for a particular period. Subsequently the services of some of the workmen were brought under temporary status mazdoor and thereafter appointed on regular basis. The others while working on contract basis for several years were directly brought under the regular cadre by different orders.

The workmen filed a claim in 2014 claiming that, they were entitled to payment at the rate of the 1/30th of the minimum pay scale plus dearness allowance as per Office Memorandum dated June 7, 1988 from the date of their initial appointment as Daily Rated Mazdoor/Contract basis.

Another set of employees of the employer had approached the Labour Court on a similar issue. The Labour Court passed an award in favour of the workmen. The award was challenged by the employer. Such challenge was rejected by learned Single Judge by a judgement and order dated June 17, 2011. An appeal was preferred against such judgement and order dated June 17, 2011. The appeal was dismissed on February 3, 2012. The Labour Court, the learned Single Judge and the Division Bench concurrently held that, the employees were entitled to 1/30th of the minimum pay scale plus dearness allowance from the date of their initial appointment. The Division Bench, however, provided that, the findings on the point of entitlement of the concerned workmen shall remain confined to the employees who cause was espoused by union before the tribunal and shall not be treated as a precedent otherwise. The present workmen have lodged their claim subsequent to the judgement and order dated February 3, 2012. On such a claim being lodged, a reference as noted herein was made to the Labour Court.

On the issue of delay and latches, the Labour Court found that, the wrong by the employer was a continuing one. The Labour Court found that, the workmen concerned were entitled to 1/30th of the minimum pay scale plus dearness allowance from the date of their initial appointment. The Labour Court found that, the employer not paying such entitlement to the workmen entitled thereto, the employer was continuing with a wrong and that, therefore, the question of delay and latches did not arise.

Prabhakar (supra) has considered the aspect of delay in making a reference under the Act of 1947. It has held as follows:

"28. The aforesaid case law depicts the following: 28.1. The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.

28.2. The words "at any time" used in Section 10 would 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 state claim and if that is so, the reference can be refuse.

28.4. Whether dispute is alive of 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."

In the facts of that case, the termination of an employee made in 1985 was challenged in 1999. The Supreme Court found that, although there was no period of limitation prescribed, the Industrial Dispute should exist in presenti. In the facts of the present case, the workmen are still working. They are claiming that, they were not paid their due entitlement at a given point of time. In the facts of the present case, it cannot be said that, the industrial dispute is not existing in presenti. The reference therefore cannot be said to be stale.

Nedungadi Bank Ltd. (supra) has held that, the power of the appropriate Government under Section 10 of the Act of 1947 has to be exercised reasonably and in a rational manner. The appropriate Government has to consider as to whether any industrial dispute exist or is apprehended. A dispute does not arise by mere issuance of a demand notice and that a stale dispute cannot be referred under Section 10 of the Act of 1947. In the facts of that case, it was found that the dispute referred was stale. In the facts of the present case I am unable to hold that the dispute referred to the Labour Court was stale. Since the workmen are still in employment, there is every possibility of breach of industrial peace.

Ravi Kumar (supra) has held that a stale claim cannot be referred. Ravi Kumar (supra), Dhan Kunwar (supra) and Babu Ram (supra) have held that, there is no formula of universal application for determination as to whether an industrial dispute was raised within a reasonable time or not. It would depend on facts situations of each case. Applying the ratio laid down in the authorities cited above, it cannot be said that, in the facts of the present case that, the reference was made beyond an unreasonable period of time or was stale.

It has not been conclusively established either before the Labour Court or before this Court that, the workmen are not entitled to 1/30th of the minimum pay scale plus dearness allowance from the date of their initial appointment as claimed by the workmen or that the concerned workmen were paid on such basis. There is no perversity attached to the impugned award. The award does not suffer from breach of principles of natural justice. The award is well reasoned.

In such circumstances, I am not inclined to interfere with the impugned award.

WP No. 268 of 2019 is dismissed without any order as to costs.