Northern Railway Administration vs Nasruddin & Anr.

Hon'Ble Irshad Ali, J.

Heard Sri Vinay Tripathi, learned counsel for the petitioner and Sri Sameer Singh, learned counsel for respondent – employee.

The present writ petition has been filed on following prayer(s):

Factual matrix of the case is that opposite party no.1 was initially engaged as a casual labourer on 07.12.1975 and continued to work in the same capacity up to 27.02.1978, in broken spells, against different sanctions issued for execution of various kinds of work. It is the specific case of the petitioner that opposite party no.1 never completed 240 days of continuous service in any calendar year and, therefore, was not entitled to the benefit of Section 25-F of the Industrial Disputes Act, 1947.

That the engagement of opposite party no.1 was made against different sanctions for short durations and for specific kinds of work. At the time of recruitment, every Khalasi or casual labourer was duly informed about the period of sanction of the particular work against which he was engaged and his signatures or thumb impressions were obtained on the muster rolls in token of such information. Accordingly, no separate notice was required to be issued upon expiry of the sanction period. The relevant sanctions against which opposite party no.1 had worked have been annexed as Annexure No.4 to the writ petition.

According to the petitioner, opposite party no.1 remained absent from duty and did not report for further employment under the petitioner establishment, namely, I.O.W, Barha Colony, Lucknow. His failure to approach the establishment for a period of approximately eight years, without raising any claim for employment or compensation, indicates that he had either abandoned the employment or obtained some other employment elsewhere. Thus, the burden lay upon opposite party no.1 to establish his claim by cogent and reliable evidence.

The petitioner has specifically pleaded that, owing to the lapse of more than ten years, it was not possible to verify the exact number of days for which opposite party no.1 had remained absent without permission, as the paid vouchers and muster rolls were preserved only for a period of five years under the applicable railway record-retention rules. It has further been stated that opposite party no.1 raised his claim after approximately eight years, despite being aware that the relevant records would no longer be available.

The petitioner has further stated that the paid vouchers relating to the relevant period had been destroyed by the Division in accordance with the directions contained in Senior Divisional Accounts Officer, Lucknow Letter No.48 RIL/DEST/82, issued in compliance with Railway Board's Letter No.74/AD/CR/Misc./ACC dated 10.06.1977. Consequently, no paid vouchers relating to the relevant period were available with the Division.

As per the petitioner's case, opposite party no.1 himself admitted that his services had allegedly come to an end on 28.02.1978, whereas he raised the industrial dispute by filing his claim statement on 05.03.1986, after an unexplained delay of approximately eight years. The petitioner, therefore, contested the claim on the ground of delay and laches and specifically denied the allegations made in the claim statement.

The petitioner specifically denied that opposite party no.1 had completed 240 days of continuous service either in any calendar year or during the twelve months preceding the alleged termination of his services. It was pleaded that the periods of employment mentioned in the claim statement were incorrect, frivolous and unsupported by any genuine or official documentary evidence.

The petitioner further contended that the services of opposite party no.1 had neither been terminated nor had he been retrenched within the meaning of the Industrial Disputes Act, 1947. His engagement was purely casual and against specific sanctions for limited periods and the same automatically came to an end upon expiry of the sanctioned period or completion of the particular work. Accordingly, the question of reinstatement or payment of back wages did not arise.

The petitioner challenged the award passed by opposite party no.2 on the ground that the Labour Court had failed to consider the abnormal and unexplained delay of eight years in raising the industrial dispute. It was contended that the Labour Court ought to have first examined whether the delay in raising the dispute was unreasonable and whether any satisfactory explanation had been furnished by opposite party no.1 before proceeding to adjudicate the matter on merits. The failure to consider this material aspect, according to the petitioner, rendered the impugned award illegal and vitiated by non-application of mind.

The petitioner further pleaded that the claim of opposite party no.1 deserved to be rejected outright on the ground of delay and laches, particularly when the alleged retrenchment had taken place on 28.02.1978 and the claim for reinstatement and wages was raised only on 05.03.1986, without furnishing any explanation for such prolonged inaction.

The petitioner also relied upon the statutory provisions governing preservation and destruction of railway records, particularly Paragraph 121-A and Appendix IX of the Indian Railway Code for the Accounts Department, as modified by Railway Board's Letter No.74/AD/CR/Misc./ACS dated 10.06.1977. As per the relevant instructions contained therein, paid vouchers and muster rolls were required to be preserved only for a period of five years. It was, therefore, contended that opposite party no.1, having raised his claim after approximately eight years, could not be permitted to take advantage of the non-availability of records that had been lawfully weeded out in accordance with the prescribed rules. A copy of the aforesaid Railway Board's letter has been annexed as Annexure No.5 to the writ petition.

The petitioner further contended that opposite party no.1 had been engaged for casual and seasonal work against different sanctions and was never appointed against any regular or sanctioned post. In such circumstances, the Labour Court committed an error in directing his reinstatement with back wages, particularly when no post existed against which such reinstatement could be ordered.

The petitioner specifically pleaded that opposite party no.1 had never completed 240 days of continuous service in any calendar year and, therefore, he was not entitled to claim protection under Section 25-F of the Industrial Disputes Act, 1947. Consequently, the direction for reinstatement and payment of back wages from the alleged date of retrenchment was stated to be perverse and legally unsustainable, particularly in view of the casual and seasonal nature of his engagement.

The petitioner further asserted that a casual labourer does not hold any substantive or regular post and, therefore, the question of reinstatement, which presupposes the existence of a post, does not arise in such cases. It was also contended that the engagement of temporary or casual labour automatically comes to an end upon expiry of the period of engagement or completion of the specific work for which such labourer was employed.

According to the petitioner, opposite party no.1 had been engaged only for a particular work and, upon completion of the said work or expiry of the relevant sanction, his engagement automatically ceased. There was no legal obligation upon the petitioner to provide further employment to opposite party no.1 after completion of the sanctioned work.

The petitioner also placed reliance upon Paragraph 2501 of Chapter XXV of the Indian Railway Establishment Manual, which defines casual labour as labour whose employment is seasonal, intermittent, sporadic or extends over short periods. It was pleaded that such labour is ordinarily recruited from the nearest available source and is not governed by the conditions applicable to permanent and temporary railway employees. On this basis, the petitioner contended that the award directing reinstatement with back wages was contrary to the nature and terms of engagement of opposite party no.1.

The petitioner has also furnished an explanation for the delay in filing the present writ petition. It has been stated that the petitioner could not obtain a copy of the award from the Ministry of Labour, New Delhi, and no specific date of pronouncement of the award had been communicated to it, as the award was required to remain confidential until its publication in the Official Gazette. It was further stated that opposite party no.1 did not approach the petitioner for implementation of the award even after its publication.

The petitioner has stated that it continued to pursue the matter through its counsel at Kanpur for obtaining information regarding the decision of the Labour Court. Thereafter, the Railway Land Advocate approached the concerned Court and obtained a certified copy of the award on 30.11.1987, which was forwarded to the office of the Divisional Railway Manager, Northern Railway, Lucknow, along with his opinion, on 15.12.1987.

Upon receipt of the aforesaid documents, the matter was examined by the Legal Branch of the office of the Divisional Railway Manager, Lucknow and the competent authority ultimately decided to challenge the award by filing the present writ petition. The relevant papers were thereafter supplied to the Railway Advocate in January, 1988, who, upon examining the available records, sought the case file relating to the proceedings conducted before opposite party no.2 at Kanpur.

The petitioner has further explained that the aforesaid case file had been misplaced in the chamber of the Railway Advocate at Kanpur. After considerable efforts, the same was traced and personally delivered to the office of the Divisional Railway Manager, Lucknow, on 27.05.1988. Thereafter, the counsel engaged before the High Court was approached; however, he was out of station during the summer vacation. The relevant case file was ultimately delivered to him on 08.07.1988, whereupon the present writ petition was prepared and filed challenging the impugned award.

Submission of learned counsel for the petitioner is that the impugned award passed by the Labour Court is legally unsustainable, being contrary to the provisions of the Industrial Disputes Act, 1947. The Labour Court failed to appreciate that opposite party no.1 was engaged purely as a casual labourer against different temporary sanctions and for specific works, in broken spells, and had no right to continue in employment beyond the period of such engagement.

Learned counsel submitted that the Labour Court committed an error in holding the alleged cessation of employment illegal without recording any categorical finding that opposite party no.1 had completed 240 days of continuous service during the twelve months preceding the alleged date of retrenchment, as required under Sections 25-B and 25-F of the Industrial Disputes Act. The initial burden to establish the requisite continuous service was upon the workman, which could not be discharged merely by making a bald assertion.

It was further submitted that the Labour Court failed to examine whether cessation of engagement upon expiry of the relevant sanction or completion of the specific work attracted the exclusion contemplated under Section 2(oo) of the Act. The nature, duration and terms of the casual engagement were material considerations which ought to have been examined before holding the petitioner guilty of illegal retrenchment.

Learned counsel further contended that the industrial dispute was raised after an unexplained delay of approximately eight years from the alleged date of termination. Though no specific limitation period is prescribed under the Industrial Disputes Act, the Labour Court was required to examine the abnormal delay, absence of any satisfactory explanation and the prejudice caused to the petitioner before granting retrospective relief.

It was also submitted that the relevant paid vouchers and muster rolls were preserved only for five years under the applicable Railway Accounts Code and Railway Board instructions and had been destroyed in accordance with the prescribed procedure. Therefore, no adverse inference could have been drawn against the petitioner for non-production of records which were lawfully weeded out, particularly when the dispute itself was raised after expiry of the prescribed retention period.

Learned counsel submitted that the Labour Court failed to appreciate that opposite party no.1 was a casual labourer engaged for intermittent and seasonal work and was not appointed against any regular or sanctioned post. Consequently, the direction for reinstatement could not have been issued mechanically without examining the nature of engagement, availability of work and the appropriate relief permissible in law.

It was further contended that the award of full back wages from the alleged date of termination is equally unsustainable, as the Labour Court failed to record any independent finding regarding unemployment, absence of gainful employment or other relevant circumstances justifying such monetary relief. Reinstatement and back wages are not automatic consequences of every alleged violation of Section 25-F of the Act.

Learned counsel lastly submitted that the impugned award suffers from non-consideration of material pleadings and evidence, particularly regarding the broken periods of engagement, different work sanctions, non-completion of 240 days and unexplained delay in raising the industrial dispute. The Labour Court, having failed to examine these foundational legal issues and record cogent findings thereon, has passed an award vitiated by non-application of mind and warranting interference by this Hon'ble Court under Article 226 of the Constitution of India. In support of his submissions, he placed reliance upon following judgments:

On the other hand, learned counsel for respondent No.1 – employee submitted that the impugned award passed by the Central Government Industrial Tribunal-cum-Labour Court is based on proper appreciation of the evidence on record and does not suffer from any illegality or perversity warranting interference by this Hon'ble Court.

It was submitted that respondent no.1 was initially appointed as a casual labourer on 07.12.1975 and worked continuously from 22.12.1975 to 21.12.1976, thereby completing more than 240 days of service in a calendar year. Consequently, he acquired the entitlement to temporary status under the applicable Railway Establishment Rules and was entitled to statutory protection under Sections 25-B and 25-F of the Industrial Disputes Act, 1947.

Learned counsel submitted that the Management's own witness had admitted before the Labour Court, on the basis of the records produced, that respondent no.1 had completed 240 days of service. Therefore, the petitioner cannot subsequently dispute the said factual position, which stood established during the adjudication proceedings.

It was further submitted that the termination of respondent no.1 was effected verbally with effect from 28.02.1978, without issuance of any notice, payment of retrenchment compensation or compliance with the mandatory requirements of Section 25-F of the Industrial Disputes Act. Such termination, being in violation of the statutory mandate, was illegal and the Labour Court rightly directed reinstatement with consequential benefits.

Learned counsel contended that the plea of expiry of sanction or completion of a particular work is wholly misconceived, as respondent no.1 was never informed that his engagement was confined to any specific period or particular work. The petitioner also failed to produce any appointment condition or sanction order establishing that his engagement automatically came to an end upon expiry of a specified period. Therefore, the petitioner cannot subsequently rely upon such an unsubstantiated plea to justify the termination.

It was further submitted that non-availability of paid vouchers cannot absolve the Management of its statutory obligations, particularly when attendance registers, job allotment registers and other contemporaneous records were available for verification. The petitioner cannot take advantage of its own failure to preserve or produce relevant employment records so as to defeat the legitimate statutory rights of the workman.

Learned counsel submitted that the objection regarding delay in raising the industrial dispute is legally untenable, as the delay had been duly explained before the Labour Court through the continuous correspondence undertaken by respondent no.1 through his Union. The Labour Court considered the relevant circumstances and adjudicated the dispute on merits. In the absence of any demonstrated prejudice or perversity in such adjudication, the petitioner cannot seek to reopen the matter merely on the ground of delay.

It was further contended that the plea of abandonment of employment or alternative employment elsewhere is unsupported by any evidence. Respondent no.1 was restrained from performing his duties through verbal instructions of the concerned officer and was never served with any written order of termination. The burden of establishing the alleged alternative employment could not be discharged by mere conjectures or presumptions.

Learned counsel further submitted that the petitioner's contention regarding non-availability of a sanctioned post is contrary to the material placed before the Labour Court, which demonstrated that fresh hands had been engaged after cessation of the services of respondent no.1. Such subsequent engagement indicates the availability of work and negates the petitioner's plea that the engagement had automatically come to an end for want of work.

It was also submitted that the provisions of Paragraph 2501 of the Indian Railway Establishment Manual cannot be relied upon to defeat the statutory protection available to respondent no.1 under the Industrial Disputes Act. The classification of an employee as casual labour does not, by itself, exclude the applicability of the statutory provisions governing retrenchment. Once the requisite continuous service is established, the employer is bound to comply with the mandatory requirements of Section 25-F.

Learned counsel submitted that the petitioner cannot introduce fresh factual pleas in the writ jurisdiction which were already considered by the Labour Court on the basis of evidence adduced by the parties. The findings recorded by the Labour Court on the questions of continuous service, illegal termination and entitlement to relief are findings of fact based on the material available on record and cannot be substituted merely because another view may be possible.

It was further submitted that the present writ petition itself suffers from unexplained delay and laches. The petitioner admittedly obtained the certified copy of the award on 30.11.1987, whereas the writ petition was prepared and filed after considerable delay. No application seeking condonation of delay or satisfactory explanation for the entire period of inaction has been furnished. The petitioner, therefore, cannot seek discretionary relief under Article 226 of the Constitution of India while itself being guilty of unexplained delay.

Learned counsel lastly submitted that respondent no.1 was entitled to receive wages in terms of the award and that the petitioner could not unilaterally withhold the same after pronouncement of the award. The impugned award having been passed after due adjudication of the industrial dispute and consideration of the evidence, no ground for interference is made out. In support of his submissions, he placed reliance upon following judgments: a) Ajaib Singh Vs. Sirhind Cooperative Marketing cum Processing Service Society Ltd. And another; (1996) 6 SCC 82. b) Jeetubha Khansangji Jadeja Vs. Kutchh District Panchayat; 2022 SCC Online SC 1284.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the parties.

To resolve the controversy involved in the matter, relevant portion of the judgments relied upon by learned counsel for the parties are being quoted below:

Having considered the rival submissions advanced by learned counsel for the parties and having carefully examined the material available on record, the principal question which arises for consideration is whether the award passed by the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, suffers from any illegality, perversity or jurisdictional error warranting interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

The case of the petitioner-Management is that the respondent-workman was engaged as a casual labourer on 07.12.1975 and was employed only for intermittent periods against different sanctions issued for execution of particular works. According to the Management, the engagement of the workman came to an end upon expiry of the period of sanction or completion of the work for which he had been engaged. It has, therefore, been contended that the cessation of his engagement did not amount to retrenchment and that the provisions of Section 25-F of the Industrial Disputes Act, 1947, were not attracted.

Per contra, the case of the workman is that he had worked continuously from 22.12.1975 to 21.12.1976, had completed the requisite 240 days of service and was, thereafter, orally prevented from discharging his duties with effect from 28.02.1978 without issuance of any notice or payment of retrenchment compensation.

The first aspect which requires consideration is the nature of engagement of the respondent-workman and the applicability of Section 25-F of the Act, 1947. It is not in dispute that the respondent-workman was engaged by the petitioner-Management as a casual labourer. However, the mere description of an employee as a casual labourer does not, by itself, exclude the applicability of the statutory protection available under the Act. The determinative consideration is whether the workman satisfies the requirements of Section 25-B of the Act and whether the cessation of his service constitutes retrenchment within the meaning of Section 2(oo) thereof.

The petitioner-Management has specifically relied upon the plea that the workman had been engaged against different sanctions for particular works and that his engagement was neither regular nor against any sanctioned post. Such a plea, however, cannot, by itself, establish that the cessation of service was covered by the exception contained in Section 2(oo)(bb) of the Act. For attracting the said exception, the Management was required to establish that the workman had been employed under a contract of employment for a fixed term and that the termination of his service was occasioned by the expiry of that term or was otherwise in accordance with a stipulation contained in the contract. A general assertion that the engagement was against temporary sanctions or for particular works, without establishing the relevant terms and conditions governing the engagement, would not be sufficient to bring the case within the exception under Section 2(oo)(bb).

In the present case, the petitioner-Management has relied upon the alleged sanction periods and the fact that the workman was informed about the duration of the work. It has also referred to the signatures or thumb impressions obtained from the workman on the muster rolls. However, the mere existence of different sanctions or the recording of attendance in muster rolls does not conclusively establish that the workman had accepted a fixed-term contract containing a stipulation that his engagement would automatically come to an end upon expiry of a specified period. In the absence of satisfactory proof of such contractual stipulation, the petitioner-Management cannot claim the benefit of Section 2(oo)(bb) merely by describing the engagement as intermittent or work-oriented. The Labour Court was, therefore, justified in examining the actual nature and duration of the engagement rather than accepting the description assigned to it by the Management.

So far as the requirement of 240 days is concerned, Section 25-B(2) of the Act provides the relevant statutory test for determining whether a workman has been in continuous service for the requisite period. The question is not merely whether the workman had completed 240 days in any earlier calendar year, but whether he had rendered the requisite number of days of service during the twelve calendar months immediately preceding the date with reference to which the computation is to be made. Consequently, the period of engagement and the evidence relating to attendance preceding the alleged termination have to be considered in the light of the statutory requirement.

Learned counsel for the petitioner has sought to contend that the respondent-workman did not complete 240 days of service in the relevant period and that his engagement was only in broken spells. However, the workman placed reliance upon the records produced before the Labour Court and the statement of the Management witness, who, according to the workman, admitted the completion of 240 days of service on the basis of those records. The evidentiary value of such admission could not have been brushed aside merely on the basis of the subsequent assertion of the Management that the engagement was intermittent. The Labour Court was entitled to consider the testimony of the Management witness along with the documentary material and the other circumstances appearing on record. The petitioner has not demonstrated that the Labour Court ignored any material evidence or arrived at a conclusion which was wholly unsupported by the record.

The judgment relied upon by learned counsel for the petitioner in the case of Mohd. Ali (Supra), reiterates the legal position that the requirement of 240 days under Section 25-B(2) has to be examined with reference to the twelve calendar months immediately preceding the alleged retrenchment. The said proposition of law is not in dispute. However, the judgment does not lay down that the claim of a workman must be rejected merely because the employer describes his engagement as intermittent. The actual number of days worked has to be determined on the basis of the evidence available in the particular case. The factual position in the judgment relied upon by the petitioner, wherein the workman had admittedly worked only 19.5 days during the relevant preceding period, is distinguishable from the present case, where the workman relied upon the Management's own records and the admission of its witness. The said judgment, therefore, does not advance the petitioner's case so as to warrant interference with the factual determination made by the Labour Court.

The further submission of the petitioner-Management is that the relevant muster rolls and paid vouchers had been preserved only for a period of five years in accordance with Paragraph 121-A and Appendix IX of the Indian Railway Code for Accounts Department and the Railway Board's letter dated 10.06.1977 and that the records were thereafter lawfully destroyed. It has also been submitted that the destruction of the records has caused serious prejudice to the Management in defending the claim raised by the workman after a considerable lapse of time. The submission, though relevant for appreciating the evidentiary circumstances, cannot be accepted as a complete answer to the workman's claim.

The fact that the Management was following a prescribed period of retention of records does not, by itself, establish that the workman had never completed the requisite period of service or that his services had lawfully come to an end. More particularly, where the Management's witness was examined and the available records were placed before the Labour Court, the evidentiary value of the material actually produced was required to be assessed. The petitioner cannot seek to displace an admission made by its own witness merely by relying upon the subsequent non-availability of certain records. Equally, the destruction of records in accordance with the applicable retention policy cannot automatically be treated as proof of the workman's case. The issue had to be decided on the evidence which was available before the Labour Court and there is nothing demonstrated before this Court to show that the Labour Court adopted an impermissible approach in appreciating that evidence.

The next submission of learned counsel for the petitioner is that the workman had remained absent and did not approach the Management for further employment for nearly eight years. According to the petitioner, such conduct indicates that the workman had abandoned the engagement or had obtained employment elsewhere. This submission also does not merit acceptance. Abandonment of service cannot be inferred merely from the passage of time or from the fact that an employee did not approach the employer for further work. The Management was required to establish, by cogent evidence, that the workman had voluntarily and consciously abandoned his employment. No such conclusion can be drawn merely on the basis of an assertion that the workman did not report for duty or that he might have obtained some other employment.

On the other hand, the workman has consistently asserted that he was orally restrained from discharging his duties with effect from 28.02.1978. He has also disputed the allegation of voluntary abandonment. In the absence of reliable evidence establishing that the workman had voluntarily relinquished his engagement, the plea of abandonment cannot be accepted as a substitute for compliance with the statutory requirements governing termination of service. The alleged absence of the workman, therefore, does not, in the facts of the present case, provide a sufficient ground to invalidate the award.

The petitioner has also sought to emphasize that the respondent-workman was never appointed against a regular or sanctioned post and that his engagement was casual, seasonal and intermittent within the meaning of the relevant provisions of the Indian Railway Establishment Manual. The said contention, however, proceeds on an assumption that the absence of a regular appointment takes the workman outside the protective provisions of the Industrial Disputes Act. Such an assumption is not legally sustainable. The question whether the workman was appointed against a sanctioned post is distinct from the question whether he was a workman entitled to the protection of the Act. The statutory safeguards relating to retrenchment are not confined only to employees holding regular posts. The nature of appointment may have relevance while determining the appropriate relief, but it does not, by itself, dispense with the obligation to comply with the statutory provisions where they are otherwise attracted.

The contention that fresh hands were not engaged or that the workman was not entitled to continue indefinitely also cannot be accepted as a ground to defeat his statutory claim. The workman has asserted that fresh hands were engaged even thereafter and that the work for which he had been engaged continued. The petitioner has not demonstrated that the Labour Court's appreciation of the relevant circumstances suffers from any manifest error. In any event, the issue before the Labour Court was not whether the workman had acquired a right to regular appointment, but whether his services had been brought to an end in accordance with law. The award has to be examined within that limited controversy.

Learned counsel for the petitioner has next placed reliance upon the judgment of the Supreme Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board (Supra). In the said judgment, the Hon’ble Supreme Court observed that although no period of limitation is prescribed for raising an industrial dispute, delay in raising the dispute is a relevant consideration while determining the appropriate relief. The Court emphasized that the Labour Court must take into account the mode and manner of appointment, nature of employment, length of service, the grounds on which the termination is sought to be set aside and the delay in approaching the adjudicatory forum. On the facts of that case, where the workman had worked for 286 days and raised the dispute after six years, the Hon’ble Supreme Court considered compensation to be an appropriate relief in place of reinstatement.

There can be no quarrel with the principle laid down in the case of Mohan Lal (Supra). Delay in raising an industrial dispute is undoubtedly a relevant circumstance and cannot be ignored while granting relief. However, the said judgment does not lay down an inflexible rule that every industrial dispute raised after a considerable lapse of time must necessarily result in denial of reinstatement or substitution of the relief by monetary compensation. The nature of employment, the circumstances in which the workman was disengaged, the explanation for delay, the evidence available and the conduct of the parties are all relevant considerations. The judgment in the case of Mohan Lal (Supra) was rendered on its own facts and cannot be applied mechanically without examining the circumstances of the present case.

In the present matter, the workman has relied upon correspondence and representations made through the Union to explain the delay in raising the dispute. The petitioner, on the other hand, has contended that the claim was raised after nearly eight years and that such delay has prejudiced the Management on account of the non-availability of the old records. The delay is undoubtedly substantial and is a circumstance which the Labour Court was required to take into consideration. Nevertheless, delay by itself does not extinguish the right to seek adjudication of an industrial dispute, particularly when the statute does not prescribe a limitation period for making such a reference. The question is whether the delay, in the circumstances of the case, is sufficient to deny the workman relief altogether or to establish that the award is otherwise unsustainable.

In this regard, the judgment of the Hon’ble Supreme Court in the case of Ajaib Singh (Supra) is of considerable relevance. The Hon’ble Supreme Court held that the provisions of the Limitation Act do not apply to proceedings under the Industrial Disputes Act and that delay in raising an industrial dispute, by itself, does not render the reference invalid. It was further observed that the employer must establish actual prejudice occasioned by the delay and that a mere assertion of prejudice would not be sufficient. The Court also recognized that the Labour Court may mould the relief, including by restricting or denying back wages for the period preceding the demand, depending upon the facts and circumstances of the case.

The principle laid down in the case of Ajaib Singh (Supra) supports the proposition that the workman's claim could not have been rejected solely on the ground that it was raised after a lapse of time. Although the petitioner has relied upon the destruction of old records as a circumstance of prejudice, the same has to be considered along with the evidence which was actually available and the findings recorded by the Labour Court. The petitioner has not established that the delay, by itself, rendered the adjudication impossible or that the Labour Court's findings were vitiated on account of the non-availability of records. The contention regarding delay, therefore, does not furnish a ground for setting aside the award.

The judgment in the case of Jeetubha Khansangji Jadeja (Supra), relied upon by learned counsel for the workman, further reiterates that the question of delay and the grant of relief have to be examined in the factual context of each case. The Hon’ble Supreme Court, while considering the circumstances before it, did not find any perversity in the order of reinstatement and also considered the effect of delay in the judicial process while moulding the relief relating to back wages. The said judgment does not lay down that reinstatement must invariably follow in every case of delayed industrial dispute; rather, it reinforces the principle that the relief has to be determined upon consideration of the relevant facts and circumstances. The said decision, read with Ajaib Singh (Supra), makes it clear that delay is a relevant factor in moulding relief, but cannot be treated as an automatic bar to adjudication or relief.

Learned counsel for the petitioner has also relied upon the judgment of this Court in the case of State of U.P. through Executive Engineer (Supra), wherein interference was made with an award granting reinstatement to a muster-roll employee in the circumstances of that case. The said judgment, inter alia, refers to the decisions in the cases of Himanshu Kumar Vidyarthi v. State of Bihar, (1997) 4 SCC 391, and Mohd. Umar v. Executive Engineer, Nagar Palika Parishad, 2004 (1) UPLBEC 174 and emphasizes that the nature of appointment, duration of service, manner of engagement and delay in raising the dispute are relevant while determining the appropriate relief.

The aforesaid judgment also does not support the proposition that a casual or muster-roll employee is, in every circumstance, disentitled to reinstatement. The relief granted by the Labour Court has to be examined with reference to the findings recorded in the particular case and the evidence supporting those findings. In the present matter, the workman relied upon the records produced before the Labour Court and the statement of the Management witness regarding the period of service. The petitioner has not established that the Labour Court ignored the relevant circumstances or that its findings are so unreasonable that no judicial forum could have arrived at them. The judgment relied upon by the petitioner, therefore, is distinguishable on its facts and does not warrant interference with the award in the present case.

The question of reinstatement and back wages also requires consideration in the light of the aforesaid principles. It is true that the respondent-workman was engaged as a casual labourer and had not been appointed against a regular sanctioned post. It is equally true that a considerable period elapsed between the alleged cessation of service and the raising of the industrial dispute. These circumstances are relevant while determining the extent of monetary relief. However, they cannot be considered in isolation or be used to defeat the statutory protection available to a workman whose service has been brought to an end in violation of the applicable provisions of the Act.

The Labour Court, being the adjudicatory forum entrusted with the determination of industrial disputes, was required to assess the evidence relating to the nature of engagement, the period of service, the circumstances in which the workman ceased to work and the legality of the action taken by the Management. The petitioner has not been able to demonstrate that the Labour Court proceeded on an irrelevant consideration, excluded material evidence, or recorded a finding which is contrary to the evidence on record. The mere possibility of another view being taken on the same material does not justify interference under Article 226 of the Constitution of India.

It is also necessary to bear in mind that the jurisdiction of this Court under Article 226 is not that of an appellate court over the findings recorded by the Labour Court. This Court would certainly interfere where the award is founded upon no evidence, where material evidence has been ignored, where the findings are perverse, or where the Labour Court has committed an error of law apparent on the face of the record. However, where the Labour Court has considered the rival pleadings, examined the evidence and arrived at a conclusion on the basis of the material available before it, the findings cannot be displaced merely because the petitioner-Management seeks a different appreciation of the same evidence.

In the present case, the petitioner has primarily sought to reopen the factual assessment made by the Labour Court by reiterating that the workman was engaged only in broken spells, that the relevant records were destroyed after the prescribed retention period, that the workman did not complete 240 days of service and that he had abandoned the engagement. These submissions have been considered hereinabove. None of them, either individually or collectively, establishes that the Labour Court's award suffers from such illegality or perversity as would justify interference by this Court. The petitioner has also failed to establish that the cessation of engagement was covered by the exception under Section 2(oo)(bb) of the Act.

The delay in raising the industrial dispute is a relevant circumstance, but in view of the principles laid down in Ajaib Singh (Supra) and the subsequent decision in the case of Jeetubha Khansangji Jadeja (Supra), it cannot, by itself, invalidate the reference or render the award unsustainable. The judgment in the cases of Assistant Engineer (Supra), Rajasthan State Agriculture Marketing Board (Supra) and the judgment of this Court in State of U.P. through Executive Engineer (Supra) do not prescribe an automatic consequence of substituting reinstatement by compensation in every case involving a casual employee or a delayed reference. The relief has to be assessed on the facts of the particular case. The petitioner has not shown that the Labour Court's decision in the present matter calls for interference on that account.

For the reasons recorded above, this Court is of the considered view that the petitioner-Management has failed to make out any ground for exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The award passed by the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, does not suffer from any patent illegality, jurisdictional error or perversity warranting interference. The submissions advanced on behalf of the petitioner, though carefully considered, do not dislodge the findings recorded by the Labour Court or establish that the impugned award is contrary to the provisions of the Industrial Disputes Act, 1947.

Accordingly, the writ petition is liable to be dismissed and is hereby dismissed.

The award passed by the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, is hereby affirmed.

There shall be no order as to costs.