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Judgment
Manoj K. Tiwari, J
Petitioner - Oil and Natural Gas Corporation Ltd. (in short “employer/ONGCâ€) has challenged the award dated 07.08.2017 given by Central
Government Industrial Tribunal-cum-Labour Court (from hereinafter referred to as “Labour Courtâ€), Delhi whereby, reference was decided in
favour of Workman (respondent herein) and it was held that the Workman is entitled to be reinstated in service with all consequential or cascading
benefits.
Respondent was appointed as Assistant Grade-III in ONGC w.e.f. 12.05.1983 against a temporary post. Subsequently on 06.01.1990, she was
promoted to the post of Assistant Grade â€" II. Her services were subsequently terminated vide order dated 01.07.1994, which was effective from
01.12.1993.
Respondent challenged the termination order by filing WPSS No. 6742 of 2001 (Old No. 12121 of 1995) before Allahabad High Court, which was
subsequently transferred to this Court, upon reorganization of State of Uttar Pradesh. The said writ petition was dismissed by a coordinate Bench of
this Court vide judgment dated 26.08.2004. Respondent challenged the said judgment by filing Special Appeal No. 55 of 2004 and Division Bench of
this Court taking note of the submission made by learned Senior Counsel for the ONGC dismissed the writ petition as not maintainable, on the ground
that petitioner in the writ petition is a Workman. The order dated 29.06.2006 passed in Special Appeal No. 55 of 2004 is extracted below:-
“Heard Sri M.C. Pant learned counsel for the appellant and Sri L.P. Naithani, learned Senior Advocate appearing on behalf of the respondent.
Learned Senior Advocate has submitted that the petitioner/appellant being a workman, the writ petition was not maintainable and the Industrial
Dispute ought to have been approached in view of the law laid-down by the Apex Court in Premier Automobiles Ltd. Vs. K. S. Wadeke and others
reported in AIR 1975 Supreme Court 2238. Therefore, the Special Appeal is also dismissed, as the writ petition was not maintainable. However, the
Tribunal will not be influenced or guided by the judgment of the High Court. Delay will not be the reason in making the reference.â€
The Workman, thereafter raised an Industrial Dispute, which was referred for adjudication to CGIT-cum-Labour Court vide letter dated
22.10.2008. The dispute, which was referred for adjudication, is extracted below:-
“Whether the action of the management of ONGC, Dehradun to terminate the services of Mrs. Anjana Mittal, AG-II, with effect from 01.12.1993
is legal and justified? To what relief the workman is entitled?â€
The Workman filed a claim statement before the Labour Court stating that she is a Workman, as her duties were purely clerical in nature. It was
further contended that any contract of service or stipulation, which is contrary to the provisions of Industrial Disputes Act and Industrial Employment
Standing Orders Act is not sustainable in the eyes of law. It was further stated that her services were terminated for the charge of unauthorized
absence, without conducting fair and proper enquiry.
The employer/ONGC in its written statement contended that the Workman was a temporary employee, whose services were terminable after
giving one month’s notice, in terms of Regulation 24 of Terms and Conditions of Appointment and Service Regulations, 1975.
Workman examined herself and two other witnesses, namely, Sri Badri Nath Vasandi â€" WW2 and Sri A.K. Mittal â€" WW3 before learned
Labour Court. Three witnesses were examined on behalf of Management of ONGC, namely, Dr. S.P. Mandal â€" MW1, Dr. Abha Mazumdar â€
MW2 and Sri Vikram Malhotra â€" MW3.
After considering entire material on record, learned CGIT-cum-Labour Court decided the reference in favour of the Workman vide award dated
07.08.2017 and held that termination of services of the Workman is illegal and void and she is entitled for reinstatement with all consequential and
cascading benefits. The said award has been challenged by ONGC/employer in the present writ petition on the following grounds:-
(i) The respondent/workman was temporary employee and as per Regulation 24 of Terms & Conditions of Appointment & Service Regulations, 1975,
services of temporary employee can be terminated any time, after giving one month’s notice. Therefore, there was no need to hold any enquiry
before terminating services of the respondent and finding to the contrary, recorded by learned Labour Court is unsustainable.
(ii) Services of the workman were terminated w.e.f. 01.12.1993, while reference was made to learned Labour Court on 22.10.2008, therefore,
reference order was time barred and ought to have been rejected on the ground of delay alone.
(iii) Since it is a case of termination simpliciter, as no stigma was cast upon the respondent/workman, therefore, the opportunity of hearing was not
required to be given to the workman and the view taken by learned Labour Court, is, therefore, unsustainable.
(iv) Respondent/workman had admitted contents of the show cause notice in her reply, which amounts to admission of guilt, therefore, there was no
need to hold domestic enquiry and finding to the contrary, recorded by learned Labour Court is erroneous.
(v) As the workman has not worked in ONGC since 1993, therefore, awarding full back wages to her would result in huge financial liability upon the
employer, therefore, would be unjust and unreasonable.
In the case of Shambhu Nath Goyal Vs Bank of Baroda & another reported in (1983) 4 SCC 49,1 Hon’ble Supreme Court has held that the
employer has right to seek permission of the Labour Court/Industrial Tribunal to adduce further evidence to substantiate the charges framed against
the workman by making a request for such opportunity in his written statement. It was further held that if employer is not making such request in his
written statement then he cannot be allowed to do so at any later stage of the proceedings. Para 16 of the said judgment is extracted below:-
“16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to
adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which
may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission
under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made
aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application
filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest
stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under Section 10 of the Act
after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the
management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the
defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the
reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the
enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not
choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may
result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.â€
The view taken in the case of Shambhu Nath Goyal (supra) was affirmed by Constitution Bench of Hon’ble Supreme Court in the case of
Karnataka State Road Transport Corporation Vs Lakshmidevamma (Smt.) and another reported in (2001) 5 SCC 433.
There is no dispute that enquiry was not held while terminating services of the workman. In such a case, employer can request the Labour Court
for permission to lead additional evidence to establish the charges. Thus petitioner was entitled to seek an opportunity to prove the charges leveled
against the workman by making a plea in his written statement, in terms of law laid down by Hon’ble Supreme Court in the case of Engineering
Laghu Udyog Employees’ Union Vs Judge, Labour Court and Industrial Tribunal & another reported in (2003) 12 SCC. 1Para 8 and 9 of the said
judgment are extracted below:-
“8. Learned Senior Counsel then urged that P.H. Kalyani's case is dissimilar as it was a case of defective inquiry. According to the learned Senior
Counsel, there is a difference between a termination which is not followed by an inquiry and where inquiry is found to be defective on account of
procedural breach.
It is not in dispute that in a proceeding for obtaining approval of an order of dismissal from the Labour Court or the Industrial Tribunal, as the case
may be, in terms of Section 33(2)(b) of the Act or where a reference has been made under Section 10 thereof, if it is found that an inquiry has been
conducted in violation of the principles of natural justice, the employer is entitled to raise the said question in its written statement by way of
preliminary issues and pray for grant of such an opportunity to prove the charges levelled against him.â€
In the present case, the employer did not avail this right, as such permission was not sought by him before learned Labour Court. The written
statement filed by the employer is absolutely silent on this aspect of the matter.
The first submission made on behalf of the petitioner/employer is that services of the workman have been terminated in terms of Regulation 24 of
service regulation applicable to ONGC employees, therefore, there is no infirmity or illegality, whatsoever in termination of her services. Regulation
24(1) of Terms & Conditions of Appointment & Service Regulations, 1975, which is relevant for the purpose of this petition, is extracted below:-
“24(1) Except as may specifically be provided in the contract of service, the services of a temporary employee shall be liable to termination at any
time without assigning any reasons by a notice in writing given either by the employee to the appointing authority or by the appointing authority to the
employee and the period of such notice shall be one month;
Provided that the services of any such employee may be terminated forthwith and on such termination, the employee shall be entitled to claim a sum
equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before
the termination of his service, or as the case may be for the period by which such notice falls short of one month.
Provided that in the case of an employee who is under suspension or against whom disciplinary proceedings for imposition of major penalty have been
initiated, the issue of a notice by the employee for termination of his employment shall not cause the appointment to be terminated, unless the
appointing authority considers that it would be in the interest of the Commission to permit termination of the appointment. The termination of
appointment shall become effective only when such a termination is accepted by the appointing authority and from such date as may be specified by
the appointing authority. If the authority competent to dismiss such an employee is higher than the appointing authority, the orders of the former shall
be obtained before the resignation is accepted by the appointing authority.â€
Admittedly, respondent/workman was appointed as Assistant Grade-III w.e.f. 12.05.1983, thereafter she was promoted to the post of Assistant
Grade â€" II on 06.01.1990 and she served for more than four years after promotion, till 01.07.1994. It is thus apparent that respondent served in
ONGC for more than eleven years. Learned Labour Court, upon considering relevant aspects, has recorded a categorical finding that respondent
cannot be treated a temporary employee. It is not the case of petitioner that finding recorded by Labour Court is perverse, therefore, a finding of fact
cannot be interfered with under Article 227 of the Constitution, as held in the case of G.M., ONGC, Shilchar Vs ONGC Contractual Workers’
Union reported in (2008) 12 SCC 275.
In the case of D.K. Yadav Vs J.M.A. Industries Ltd. reported in (1993) 3 SCC 25,9 Hon’ble Supreme Court was dealing with a similar
provision in the standing order, which provided that if a workman remains unauthorisedly absent for more than eight days, then he shall be deemed to
have automatically abandoned the services and also lost his lien on his appointment. Para 13 to 16 of the said judgment are extracted below:-
“13. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and Ors this Court held that right to public employment and its concomitant right to
livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment includes the right to continue in
service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure
prescribed under the provisions of the constitution and the rules made under the provisions of the constitution and the rules made under proviso to
Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to
the rights guaranteed in Part III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof
must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not
fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the Guarantee of equality assured by Article 14. Any law
made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance
with just, fair and reasonable procedure is an essential inbuilt of' natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but
the substance of the order that is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it
is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order
is the soul and the affect thereof is the end result.
It is thus well settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination
of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of
dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity
to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress
and Ors. the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof
without enquiry offended Article 14. The order terminating the service of the employees was set aside.
In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that
despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be
permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had
power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural
justice must be read into the Standing Order No. 13 (2) (iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read
the impugned action is violative of the principles of natural justice.
This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor
given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances
50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the
letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and
pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accordingly. The parties would
bear their own costs.â€
In such view of the matter, reliance placed by the petitioner upon Regulation 24 of Terms & Conditions of Appointment & Service Regulations,
1975, cannot be sustained. Services of the workman could not have been terminated without holding domestic enquiry, in view of the charge of
“habitual absenteeism†leveled against her.
The second submission raised on behalf of the employer/petitioner is regarding delay in making reference to learned Labour Court. Although there
is delay of about 14 years in making reference, however, it is not attributable to the respondent. Petitioner admits in his writ petition that
respondent/workman had approached Allahabad High Court by filing WPSS No. 12121 of 1995. The said writ petition was transferred to this Court
and ultimately was dismissed on 26.08.2004. Respondent challenged the said judgment before the Division Bench of this Court by filing Special Appeal
No. 55 of 2004. Division Bench of this Court declared that since respondent was a workman, therefore, her writ petition was not maintainable and
liberty was granted to her to approach the Industrial Tribunal. In this background, dispute raised by respondent was referred for adjudication to the
Labour Court on 22.10.2008. Thus by no stretch of imagination, it can be said that respondent’s claim had become stale, as she was not sleeping
over her rights, but was vigilant continuously.
Hon’ble Supreme Court in the case of Ajaib Singh Vs Sirhind Cooperative Marketing-cum-Processing Service Society Limited & another
reported in (1999) 6 SCC 82 has considered and discussed the question of delay in making reference of an industrial dispute with reference to aims
and objects of the Act. Para 6 to 11 of the said judgment are extracted below:-
“6. The history of the legislation with respect to the industrial disputes would show that for the first time in the year (1920 the Trade Disputes Act
Was enacted which provided for Courts of enquiry and Conciliation Boards and forbade strikes in public utility service without a statutory notice in
writing. The Act did not make provision for any machinery for settling of industrial disputes. The said Act was repealed and replaced by the Trade
Disputes Act, 1929 which started the State intervention in the settlement of industrial disputes and armed the Government with the power which could
be used whenever considered fit to intervene in industrial disputes. This Act was amended in the year 1938 authorising the Central and Provincial
Governments to appoint Conciliation Officers for mediating in or promoting the settlement of industrial disputes. Shortly thereafter the Government of
India promulgated the Defence of India Rules to meet the exigency created by the Second World War. Rule 81-A gave powers to the Government to
intervene in industrial disputes and was intended to provide speedy remedies for industrial disputes by referring them compulsorily to conciliation or
adjudication by making the awards legally binding on the parties and by prohibiting strikes or lockouts during the pendency of the conciliation or
adjudication proceedings. The Industrial Employment (Standing Orders) Act, 1946 was enacted which made provision for framing and certifying of
standing orders covering various aspects of service conditions in the industry. The Industrial Disputes Bill was introduced in the Central Legislative
Assembly on 8.10.1945 which embodied the essential principles of Rule 81-A of the Defence of India Rules and also certain provisions of Trade
Disputes Act, 1929 concerning industrial disputes. The Bill was passed by the Assembly in March 1947 and became the law w.e.f. 01.04.1947. The
present Act was enacted with the objects as referred to hereinabove and provided machinery and forum for the investigation of industrial disputes,
their settlement for purposes of analogous and incidental thereto. The emergence of the concept of a welfare State implies an end to the exploitation
of workmen and as a corollary to that collective bargaining came into its own. The legislature had intended to protect workmen against victimisation
and exploitation by the employer and to ensure termination of industrial disputes in peaceful manner. The object of the Act, therefore, is to give
succour to weaker sections of society which is a prerequisite for a welfare State. To ensure industrial peace and pre-empt industrial tension, the Act
further aims at enhancing the industrial production which is acknowledged to be life-blood of a developing society. The Act provides a machinery for
investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised courts which are
not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and
adjudication as per the need of society keeping in view the fast changing social norms of a developing country like India. It appears to us that the High
Court has adopted a casual approach in deciding the matter apparently ignoring the purpose, aim and object of the Act.
This Court in Bombay Gas Co. Ltd. v. Gopal Bhiva held that the provisions of Article 181 (now Article 137) of the Limitation Act apply only to
applications which were made under the Code of Civil Procedure and its extension to applications under Section 33-C(2) of the Act was not justified.
This position was further reiterated and explained by this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court:-
It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and
applicability of Article 137 in the new Limitation Act of 1963. The language of Article 137 is only slightly different from that of the earlier Article 181
inasmuch as, when prescribing the three years' period of limitation, the first column giving the description of the application reads as ‘any other
application for which no period of limitation is provided elsewhere in this division’. In fact, the addition of the word ‘other’ between the
words ‘any’ and ‘application’ would indicate that the legislature wanted to make it clear that the principle of interpretation of Article 181
on the basis of ejusdem generis should be applied when interpreting the new Article 137. This word ‘other’ implies a reference to earlier
articles, and, consequently, in interpreting this article, regard must be had to the provisions contained in all the earlier articles. The other articles in the
third division to the Schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and
also in two cases applications under the Code of Criminal Procedure. The effect of introduction in the third division of the schedule of reference to
applications under the Arbitration Act in the old Limitation Act has already been considered by this Court in the case of Sha Mulchand & Co. Ltd. We
think that, on the same principle it must be held that even the further alteration made in the articles contained in the third division of the Schedule to the
new Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of
the residuary Article 137 which deals with other applications. It is not possible to hold that the intention of the legislature was to drastically alter the
scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure.
This Point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the articles in the third division to the
Schedule, including Article 181 of the Limitation Act of 1908, governed applications under the Code of Civil Procedure only, it clearly implied that the
applications must be presented to a court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included
within the third division by amendment of Articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil
Procedure. At best, the further amendment now made enlarges the scope of the third division of the Schedule so as also to include some applications
presented to courts governed by the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to
courts to be governed by the Articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to
include within them applications to bodies other than courts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a
Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil
Procedure or the Code of Criminal Procedure. We cannot, therefore, accept the submission made that this article will apply even to applications made
to an Industrial Tribunal or a Labour Court. The alterations made in the Article and in the new Act cannot, in our opinion, justify the interpretation that
even applications presented to bodies, other than courts, are how to be governed for purposes of limitation by Article 137.â€
In Sakura v. Tanaji it was held that the provisions of the Limitation Act applied only to proceedings in courts and not to appeals or applications
before the bodies other than courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may
be vested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure. The view taken by this Court in
Municipal Council Athani (supra) and Nityanand M. Joshi v. LIC of India, was reiterated with approval.
In Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. this Court declined to set aside the order of reinstatement of the
workman who was shown to have approached the Court after a prolonged delay. However, in the circumstances of the case, the court directed the
workman to be reinstated in service with continuity from the date on which his services were terminated but having regard to the fact that he had
raised the industrial dispute after considerable delay without doing anything in the meanwhile, he was not awarded the back wages. The grant of half
back wages from the date of termination of service until the date of order and full back wages from that date till his reinstatement was found in the
circumstances to meet the ends of justice. In H.M.T. Ltd. v. Labour Court, where there was a delay of 14 years in invoking the jurisdiction of the
court, this Court found that instead of full back wages, the grand of 60 per cent of the back wages upon the reinstatement of the workman would meet
the ends of justice.
It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the
act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required
to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing
with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his
illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full
back wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in
Ram Chander Morya v. State of Haryana is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the
Limitation Act were applicable in the proceedings under the Act. The Court specifically held “neither any limitation has been provided nor any
guidelines to determine as to what shall be the period of limitation in such cases.†However, it went on further to say that “reasonable time in the
cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the government can
refuse to make a reference on the ground of delay and laches if there is no explanation to the delay.â€
We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an
application under Section 33-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its
wisdom had though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges
presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left
over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and
various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the
purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act.
ln the instant case, the respondent management is not shown to have taken any plea regarding delay as is evident from the issues framed by the
Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the
services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing
him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the
Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why
the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings
were, therefore, unjustified. The High Court was also not justified in holding that the courts were bound to render an even- handed justice by keeping
balance between the two different parties. Such an approach totally ignores the aims and object and the social object sought to be achieved by the
Act. Even after noticing that “it is true that a fight between the workman and the management is not a just fight between equals,†the Court was
not justified to make them equals while returning the findings, which if allowed to prevail, would result in frustration of the purpose of the enactment.
The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay,
he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the
opinion of the Labour Court which was not permissible in proceedings under Articles 226/227 of the Constitution.â€
The view taken in the case of Ajaib Singh (supra) has been reiterated by Hon’ble Supreme Court in the case ofR aghubir Singh Vs General
Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301. Para 20 and 21 of the said judgment are extracted below:-
“20. Further, the Labour Court on an erroneous assumption of law framed the additional issue regarding the limitation in raising the dispute and its
reference by the State Government to the Labour Court. Thus, the Labour Court has ignored the legal principles laid down by this Court in the cases
referred to supra. The award passed by the Labour Court was accepted erroneously by both the learned Single Judge and the Division Bench of the
High Court by dismissing the civil writ petition & the letters patent appeal without examining the case in its proper perspective, keeping in view the
power of the State Government under Section 10(1)(c) and the object and intendment of the Act. Not adjudicating the existing industrial dispute on
merits between the parties referred to it may lead to disruption of industrial peace and harmony, which is the foremost important aspect in industrial
jurisprudence as the same would affect the public interest at large.
The Labour Court has failed to exercise its statutory power coupled with duty by not going into the merits of the case and adjudicating the points
of dispute referred to it while answering the additional Issue 2 framed by it regarding limitation. Therefore, it is a fit case for us to exercise the
jurisdiction of this Court for the reason of non-adjudication of dispute on merits between the parties with regard to the justifiability of the order of
dismissal passed by respondent.â€
Similar view has been expressed by Hon’ble Supreme Court in the case of Jasmer Singh Vs State of Haryana & another reported in (2015) 4
SCC 458. Para 14 and 15 of the judgment are extracted below:-
“14. On Issue 3, after adverting to the case of State of Punjab v. Kali Dass, wherein the High Court has observed that the workman cannot be
allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent employer with
reference to the said plea, the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Coop. Marketing-
cum-Processing Service Society Ltd. in which it is observed by this Court that there is no period of limitation to the proceedings in the Act.
Accordingly, Issue 3 is answered against the respondent management. The relevant paragraph from Ajaib Singh's case is extracted hereinbelow:
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the
Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required
to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or Board,
dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding
his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full
back wagesâ€.â€
In such view of the matter, challenge thrown to the award given by Labour Court on the ground of delay, is unsustainable.
As regards third submission made on behalf of the petitioner that it is a case of termination simpliciter, therefore, formal domestic enquiry is not
required, is misconceived. No one can be condemned unheard, is one of the basic tenet of justice. An order of termination has serious civil
consequences to an employee, therefore, even if, no stigma is cast, then also rule of Audi Alteram Partem has to be followed.
In the present case, the stand taken by petitioner before learned Labour Court was that respondent is a habitual absentee, who had remained
absent from duty for more than 250 days in different years. This aspect has been highlighted in para 5 of the writ petition also. This leaves no room for
doubt that it is not a case of termination simpliciter. Petitioner, as employer, could have made request in his written statement to grant permission to
lead evidence to prove charges leveled against the workman, but no such request was made by the petitioner/employer.
As regards the fourth submission, it is noticed that learned Labour Court has extracted the show cause notice in para 25 of the impugned award
and in para 26, stand taken by the respondent in her reply to the show cause notice has been considered and discussed. In para 36 of the award,
learned labour Court has noted that the period of unauthorized absence was regularized by the management itself by converting the same into leave.
In para 37 of the award, statement of Doctor Mazumdar â€" MW1, who issued medical certificate to the respondent, has been considered. The doctor
deposed that respondent was suffering from pain, after her pregnancy as well as spondylitis, which, according to learned Labour Court, corroborates
the stand taken by respondent/workman in her reply to the show cause notice, and is sufficient explanation for her absence from duty. Thus, it is
apparent that learned Labour Court has given cogent reasons in support of its findings. Hence, this Court is not inclined to interfere with the award
given by learned Labour Court.
The contention of the petitioner that respondent had stated in her reply that she was ill during the period of absence, which amounts to acceptance
of guilt, cannot be sustained. Even otherwise also, perusal of the show cause notice reveals that vague and ambiguous charge was leveled against
respondent/workman. Thus, there is no scope for interference with the impugned award.
This Court finds some substance in the fifth submission made on behalf of the petitioner against awarding full back wages, therefore, the award
given by learned Labour Court is modified and it is provided that instead of full back wages, workman shall be entitled to back wages to the extent of
30% only, however, she will be entitled all other benefits, in terms of the award given by learned Labour Court.
Writ petition is partly allowed to the extent indicated above.
Interim order, if any, stands vacated.