Indian Farmers Fertiliser Cooperative Ltd. vs State of U.P. and Others

Vikram Nath, J.—This petition under Article 226 of the Constitution of India has been filed by M/s Indian Farmers Fertilizer Cooperative Ltd., Phoolpur Allahabad praying for issuing a writ of certiorari to quash the 28 orders dated 12.05.2009 passed by the Conciliation Officer/Assistant Labour Commissioner, Allahabad filed as Annexure No. 7 to the writ petition.

M/s Indian Farmers Fertilizer Cooperative Ltd., (hereinafter referred to as IFFCO), is a cooperative society registered under the Multi State Cooperative Societies Act mainly engaged in manufacturing and marketing of fertiliser and urea. One of its unit is situate at Phoolpur, Allahabad. The respondent Nos. 3 to 30 who claimed to have been working with the said unit alleged that they have been illegally terminated from service by the petitioner on 1.1.1996. Initially there was some dialogue going on between the petitioner and the workmen and their Union, thereafter, on representations having been submitted by the workers and their Union they were called for discussions. However when every effort failed in getting redressal of their grievance the petitioners filed applications before the Conciliation Officer/ respondent No. 2 in May, 2007 that their services were illegally terminated, contrary to the provisions of law. Accordingly they claimed reinstatement with continuation in service and back-wages. Along with this application they also filed an application to condone the delay as it was beyond a period of six months, in raising their claim for the reasons given in the said application. Reference was also made to two writ petitions filed in representative capacity which also indirectly related to their service dispute.

All the respondent Nos. 3 to 30 filed separate applications raising industrial dispute and also for condoning the delay. All such applications have been filed as Annexure No. 1 to the petition. The Conciliation Officer/ respondent No. 2 issued notices to the petitioner in each of the cases on 19th June, 2007 calling upon them to appear on 6th July, 2007 and file their reply in the delay matter. All such notices have been filed as Annexure No. 2 to the writ petition. The petitioner filed objections on 11.09.2007 stating that the application for conciliation is liable to be rejected. The main ground taken was that the dispute was being raised after 10 years and 10 months and neither the Conciliation Officer could proceed nor the Government could refer such belated claim for adjudication. Apart from the above ground it was also mentioned that there was no relationship of employer and employee between the petitioner and the respondent Nos. 3 to 30. In addition to it para-wise reply was also given. These objections have been filed as Annexure 3 to the writ petition. The Conciliation Officer after considering the objections of the petitioner held that as there was no time limit prescribed for raising a dispute under law, further that the workmen were entitled for adjudication of their rights and even if the dispute is found to be raised at the belated stage it would be for the Tribunal or the Labour Court to decide such dispute and accordingly condoned the delay vide order 12.12.2007. Against the said order the petitioner filed a writ petition before this Court being Writ Petition No. 10556 of 2008. This Court after exchange of affidavits and after hearing the counsel for the parties allowed the writ petition vide judgement and order dated 1.12.2008 and remanded the matter to the Conciliation Officer for a fresh decision on the delay condonation application as according to this Court in the order passed by the Conciliation Officer the two writ petitions mentioned in the delay condonation application of the workmen, had no co-relation with the present claim made by the respondent Nos. 3 to 30 and secondly the Conciliation Officer had refused to condone the delay in a similar matter vide order dated 25.02.2008. The judgement of this Court has been filed as Anneuxre 6 to this petition. The relevant portion of the judgement is quoted hereunder:

I have considered the submissions made on behalf of parties and have perused the record. From the perusal of record, the basis of condonation of delay by placing reliance upon writ petitions mentioned above, does not exist. From the relief claimed in the writ petitions above, there is no relief by the respondent regarding their working, dismissal from service and for the purpose of giving employment again. The first writ petition bearing writ petition No. 38761 of 1992 was for the purpose of giving an employment to those persons whose land has been acquired under the Land Acquisition Act and the writ petition No. 43709 of 2005 was for the purpose of granting compensation regarding damage of their crop due to not maintaining the proper drainage of the waste material from the company. Therefore, the basis of the order passed by respondent No. 2 to the effect that respondent workmen were pursuing their remedy by way of representation and by filing writ petition does not bear from the record. However the same authority on the basis of similar documents and for same relief has rejected the claim by order dated 25.2.2008 that there is no dispute between the parties.

In view of the aforesaid facts, though normally this Court in such situation does not interfere but after perusal of the record and two conflicting orders passed by the same authority, I am of the view that this Court in such situation, can exercise the powers provided to this Court while exercising jurisdiction under Article 226 of the Constitution of India.

In a special case, considering the facts of the present case the writ petition is allowed and impugned order dated 12.12.2007 (Annexure No. 4 to this writ petition) is hereby quashed and the matter is remanded back to respondent No. 2 to consider it as a fresh on the basis of relevant documents after giving full opportunity to parties and a specific finding to this effect be recorded whether there exists any dispute between the parties or not. While considering the present case, respondent No. 2 will also consider the order dated 25.2.2008 passed in similar circumstances. It will be proper that respondent No. 2 decides the matter within a period of three months from the date of production of certified coy of this order. It will be open to parties to lead their evidences available regarding approaching respondent No. 2 after a period of eleven years.

No order as to costs.

The Conciliation Officer reconsidered the matter and vide order dated 12.5.2009 again condoned the delay and called the parties for conciliation. Such order has been filed as Annexure No. 7. It is against the said order that the present writ petition has been filed. On the request of the counsel for the respondent the record of Writ Petition No. 10556 of 2008 was summoned as the pleadings had been exchanged in the said case.

I have heard Sri Vijay Ratan Agarwal, Senior Advocate, assisted by Sri Vivek Ratan, on behalf of the petitioners, Sri Rahul Mishra, Advocate representing respondent-workmen Nos. 3 to 30 and Sri Rajesh Kumar, learned Brief Holder for the State respondent Nos. 1 and 2. All the respondents are already represented. With the consent of the learned Counsel for the parties, this matter has been finally heard at the stage of admission itself.

Apart from other pleas, the arguments advanced on behalf of the petitioner by Sri Vijay Ratan Agrawal, learned Senior Advocate is two folds, firstly, that the dispute having been raised after about 11 years, was a stale claim and was therefore liable to be rejected and secondly as there was no relation-ship of employer and employee between the petitioner and the respondent Nos. 3 to 30, there was no justification for calling the parties for conciliation. It was further argued by Sri Agarwal that the respondent Nos. 3 to 30 by not giving any satisfactory explanation as to why the dispute has been raised at such a late stage the Conciliation Officer was not justified in condoning the delay. He further argued that the Conciliation Officer in similar cases, on a claim being made by another set of workmen had rejected the same vide order dated 25.2.2008. The order dated 25.2.2008 has been filed as Annexure 5 to the writ petition. Sri Agarwal has relied upon the following decisions in support of his submissions.

Karan Singh Vs. Executive Engineer Haryana State Marketing Board,

Judgement dated 15.12.2005 passed in Writ Petition No. 34820 of 1996 -M/s GEC Alsthom India Ltd. v. State of U.P. and Ors.

The Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. reported in JT 200(1) 388.

On the other hand Sri Rahul Mishra, representing respondent Nos. 3 to 30 has urged that the statute nowhere provides any limitation for raising an industrial dispute. He further submitted that in case dispute has been raised belatedly, even then the Labour Court / Tribunal is bound to adjudicate the dispute. However, it would be at liberty to mould the relief accordingly by passing an order either not granting relief of reinstatement and in lieu thereof award compensation, or pass an award for reinstatement and may not award full back-wages but only partial back-wages or no wages depending upon the facts and circumstances of each case. He further submitted that the issue as to whether their existed a relationship of employer and employee is to be adjudicated by the Labour Court or the Tribunal and neither the Conciliation Officer nor the State Government were competent to decide such issue. He further submitted that the Conciliation Officer having exercised the discretion of condoning the delay, this Court under Article 226 of the Constitution of India may not interfere and allow the parties to go ahead with the Conciliation and upon its failure for reference and adjudication. He has further submitted that although the Conciliation Officer has referred to two writ petitions mentioned in the application of the respondents but the basis for condoning the delay is entirely different and the Conciliation Officer after considering the explanation for the delay has clearly applied its mind to the facts and circumstances of the case and material placed on record. In support of his contention Sri Rahul Mishra has relied upon the following decisions:

Hira Vs. Kasturibai and Others,

Radhey Shyam Mishra v. State of U.P. and Ors. reported in (2005)2 UPLBEC 1181.

Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others,

Mahavir Singh Vs. U.P. State Electricity Board and Others,

Jila Sahakari Bank Ltd. Vs. Conciliation Officer and Another,

Shahid Ahmed Khan v. Deputy Labour Commissioner, Agra Region, Agra and Anr. reported in (2009)2 UPLBEC 1171.

Nagar Palika Khatauli v. Radhey Lal reported in (2002) 3 UPLBEC 2725.

Gurmail Singh Vs. Principal, Govt. College of Education and Others,

Uttar Pradesh State Road Transport Corporation Vs. Ram Surat Yadav,

Irrigation Research Institute and Another Vs. Kripal Singh,

Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others,

Chandrama Singh v. Managing Director, U.P. Co-operative Union and Ors. reported in 1991(63) FLR 478 (FB).

Sharad Kumar Vs. Govt. of NCT of Delhi and Others,

Further Sri Rajesh Kumar, Brief Holder appearing for the State-respondents has supported the decision of the Conciliation Officer condoning the delay and has reiterated, the arguments advanced by the learned Counsel for the workmen-respondent Nos. 3 to 30. Sri Rajesh Kumar has further relied upon the following decisions in addition to the decisions, relied upon by Sri Rahul Mishra, Advocate appearing for the respondents No. 3 to 30.

Collector Land Requisition, Anant Nag v. Karti Ji and Ors. reported in 1987 (55) F.L.R. 609

Union of India v. Sri Ram Mishra reported in 2009(120) FLR 1

Having considered the submissions advanced by the learned Counsels for the respective parties, this Court is prima facie of the view that this petition assailing the order of the Conciliation Officer condoning the delay and calling the parties for conciliation lacks merit and is liable to be dismissed for the discussion made and the reasons stated hereinafter.

The law is well settled to the extent that neither the State Government nor the Labour Court / Tribunal have jurisdiction to reject a dispute on the ground of delay so long as the dispute survives and it is only lawful for them to mould the relief accordingly. All the authorities on this question have taken into consideration the fact that the Industrial Disputes Act, or the Rules or Regulation framed there under do not prescribe any time limit for raising the dispute. All the decisions have held in favour of the workmen. The latest pronouncement of the Apex Court is in the case of Irrigation Research Institute (Supra). The Apex Court held that where a dispute was raised after eight years, the Labour Court could not have refused to answer the reference because of delayed approach but could accordingly mould the relief. The other earlier decisions on this questions are:

(i) Ajaib Singh (Supra) - delay was of seven years.

(ii) Sapan Kumar (supra) - delay was of 15 years.

(iii) Mahabir Singh (supra) - delay was of 8 years.

(iv) Jila Sahkari Bank Ltd- delay not known

(v) Gurmail Singh (supra) - delay was of 8 years.

(vi) U.P. State Road Transport (supra)- delay was of 8 years.

In all the above decisions it has been authoritatively held that the claim could not have been rejected on the ground of delay, however it was open for the Labour Court or the Tribunal to mould the relief accordingly.

It may further be noted that even in the case of Karnail Singh (Supra) relied upon by the learned Counsel for the petitioner the Apex Court had ultimately held that the Industrial Tribunal could not have turned down the reference on the ground of delay. Even the Apex Court found the termination bad in law and instead of directing reinstatement awarded compensation to the employee. A stale claim is not fatal but it only requires moulding of the relief accordingly. In case of GEC India Relief (Supra) again relied upon by the petitioner the services of the workman were terminated in the year 1983 thereafter the Conciliation Officer passed an order in 1996 condoning the delay of twelve years, whereupon the writ petition was filed by the employer. The employee had not taken interest and had not appeared in the writ petition despite the fact that the petition had been pending for 10 years. It was in these circumstances that this Court allowed the petition. In any case in view of the decisions of the Apex Court referred to above if some observations have been made by this Court that 12 years was not a reasonable period to approach the Industrial Tribunal, it was in the facts and circumstances of that case. The said judgement does not lay down any ratio but was based on the facts of that case. Further the case of Nedungadi Bank Ltd (Supra) relied upon by the petitioner also is of no help to them as a reading of that judgment shows the order was passed on the facts of that case. In that case the workman had been dismissed from service on 11st August, 1972, the appeal filed by the workman was dismissed on 3rd January, 1973 thereafter the workman did not challenge the same and also accepted all the benefits which were due to him on account of his termination. It was in these facts that the Apex Court held that when the workman raised the dispute after a lapse of 7 years actually no dispute was pending.

Another aspect of the matter to be considered is as to whether condonation of delay by the Conciliation Officer was justified or not. From a reading of the impugned order it is apparent that the Conciliation Officer after considering the explanation given by the workmen regarding delay in approaching him had condoned the same. Further in this regard it would be worthwhile to mention that the Courts should take a liberal view in such matters and allow the parties to fight out on merits rather than adopt pedantic approach and shut out the litigation on technicalities. Sri Rajesh Kumar, learned Brief Holder has relied upon the decision in the case of Collector Land Acquisition (Supra) wherein the Apex Court has held that effort should be made to dispose of the matter on merits and the expression ''sufficient cause'' normally used should be given a liberal approach. The words used ''each days delay should be explained'' does not imply a pedantic approach. Technical consideration should give way to substantial justice and it is always that substantial justice must prevail over technicalities coming in its way.

For this reason also this Court is not inclined to entertain this petition against the order condoning the delay and that too at the stage of conciliation.

The argument of Sri Agarwal that the relation-ship of employer and employee did not exist also cannot be accepted at this stage as neither the Conciliation Officer nor making of the reference by the State Government would be the proper stage for deciding this question. The appropriate stage would be at the time of adjudication of the dispute by the Tribunal or the Labour Court after parties had led evidence in support of their cases. In this regard the following decisions may be referred to:

Radhey Shyam Mishra v. State of U.P. and Ors. reported in (2205) 2 UPLBEC 118.

Shahid Ahmed Khan v. Deputy Labour Commissioner, Agra Region, Agra and Anr. reported in (2009) 2 UPLBEC 1171.

Nagar Palika Khatauli v. Radhey Lal reported in (2002)3 UPLBEC 2725.

Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others,

Sharad Kumar Vs. Govt. of NCT of Delhi and Others,

No substantial prejudice would be caused to the employer (petitioner) because it will still have a right to establish that there was no relationship of employer and employee between the petitioner and respondent Nos. 3 to 30 before the Industrial Tribunal or the Labour Court and ultimately if it is held against the employer, then on the question of delay also the Industrial Tribunal or the Labour Court would be within their authority and jurisdiction to accordingly mould the relief.

In so far as the argument of Sri Agarwal that the Conciliation Officer again relied upon the two writ petitions referred to by the workmen in their application, also cannot be accepted for the reason that the delay has been condoned for other reasons recorded in the order and in any case the discretion having been exercised by the Conciliation Officer this Court under Article 226 is not inclined to accept such technical arguments.

The other argument advanced on behalf of the petitioner that in the case of similarly situate workmen the Conciliation Officer rejected the delay condonation application also is of no help to the petitioners as such order would be based on facts of that case and it cannot be used as a binding precedent against the respondent Nos. 3 to 30.

In view of the discussion made above, this petition lacks merit and is accordingly, dismissed.

There shall however be no order as to costs.