AI Structured Summary
Not yet generated for this judgment
Judgment
Rameshwar Singh Malik, J.—This order proposes to decide two writ petitions, bearing CWP No. 17836 of 2011 (State of Haryana v. Arun Kumar and another) and CWP No. 14002 of 2011 (Arun Kumar v. State of Haryana and others), one having been filed by the management and another by the workman against the same impugned award dated 13.12.2010 (Annexure P-10). However, for the facility of reference, the facts are being culled out of CWP No. 17836 of 2011. The facts, which are necessary for disposal of these writ petitions, can be put into narrow compass. The respondent-workman was initially engaged on part time basis w.e.f. 1.6.1996 on the rate fixed by the Deputy Commissioner, Chandigarh, for the purpose of filling water in water cooler and also for storage of drinking water. His initial appointment was for six months, which is clear from Annexure P-1. Thereafter, the respondent-workman was treated as full time daily wager but on contract basis for 89 days on DC rates, as per Annexure P-2. Every time petitioner was granted appointment as Waterman for a fixed period of 89 days, as per Annexures P-3 to P-5. His contract for appointment for a fixed period of 89 days was not renewed after 12.4.1999. Respondent-workman, after a period of about five years, served a demand notice Annexure P-6 dated 17.1.2004, which was replied by the petitioner-management vide Annexure P-7 alleging that it was a belated and stale claim because of which the workman was not entitled for any relief. On merit, it was stated that present one was not a case of retrenchment but was within the scope of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (''the Act'' for short), because the termination of the service of the workman was the result of non-renewal of contract of employment on the expiry of fixed term thereof. The industrial dispute raised by the workman was referred to the learned Labour Court. Workman filed his claim statement at Annexure P-8. Petitioner-management filed its reply vide Annexure P-9, reiterating its stand earlier taken. Parties led their respective evidence. After hearing both the parties and going through the evidence brought on record, the learned Labour Court came to the conclusion that the petitioner management terminated the services of the respondent-workman in violation of provisions of Section 25-F of the Act. He was directed to be reinstated with 30% back wages. Hence, this writ petition.
The second writ petition bearing CWP No. 14002 of 2011 was filed by the respondent-workman, seeking writ of mandamus directing the management to reinstate him in service with consequential benefits, in compliance of the impugned award passed by the learned Labour Court. That is how, this Court is seized of the matter.
Learned counsel for the State submits that respondent workman was initially appointed as a Waterman on part time basis. Thereafter, he was engaged on 89 days basis as per Annexure P-2. His later appointments vide Annexures P-3 to P-5 were also on 89 days basis a fixed tenure. He further submits that the present one was a case which clearly falls within the ambit of Section 2(oo)(bb) of the Act. He next contended that the respondent-workman was not entitled for any relief in the present case because he filed demand notice after about five years raising a stale and belated claim. Invoking the exception clause u/s 2(oo)(bb) of the Act, learned counsel for the petitioner management relies upon the judgment of the Hon''ble Supreme Court in Kishore Chandra Samal Vs. The Divisional Manager, Orissa State Cashew Development Corporation Ltd., Dhenkanal, and Division Bench judgment of this Court in Suresh Kumar Sharma v. Presiding Officer, Labour Court, U.T. Chandigarh and another, 2006 (4) SCT 672. On the issue of delay, learned counsel for the petitioner relies upon another judgment of the Hon''ble Supreme Court in Haryana State Coop. Land Development Bank Vs. Neelam, He finally prays for setting aside the impugned order by allowing the present writ petition.
Per contra, learned counsel for the respondent-workman submits that the present case would not fall within the exception clause of Section 2(oo)(bb) of the Act. In this regard, he relies upon a Division Bench judgment of this Court in Trishla Devi v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T., Chandigarh, 1999 (3) SCT 398. He further submits that the learned Labour Court committed no error of law while passing the impugned award. He submits that the learned Labour Court has rightly molded the relief granting only 30% back wages to the workman. He next contended that the learned Labour Court rightly rejected the reference on account of delay alone. In this regard, he relies upon the judgment of the Hon''ble Supreme Court in Karan Singh Vs. Executive Engineer Haryana State Marketing Board, He prays for dismissal of the writ petition filed by the State and for allowing the writ petition filed by the workman.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case, writ petition filed by the management deserves to be partly allowed, whereas the writ petition filed by the respondent-workman is liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.
Before proceeding with the matter, it is pertinent to record the notice of motion order dated 22.9.2011 passed by this court. The relevant part of the order reads as under:-
xx xx xx xx
I have heard counsel for the petitioner, perused the impugned order and find no reason to hold that the termination of the workman is protected in any manner by Section 2(oo)(bb) of the Act. The workman was employed on 89 days basis with notional breaks. The breaks in services were occasioned for want of sanction. The continuous service of the workman-respondent No. 1, though punctuated by notional breaks, does not lead to an inference that the workman was a contractual employee.
In this view of the matter, I find no reason to interfere with the findings recorded by the Labour Court that the workman has completed 240 days and, therefore, his termination is illegal.
Notice of motion for 22.11.2011, limited to the plea of delay in serving the demand notice and back wages.
In view of the order dated 22.9.2011, reproduced above, the only issue remains for consideration of this Court is whether the reference was liable to be rejected at the hands of the learned Labour Court on account of delay and latches. The following issues were framed by the learned Labour Court:-
(1) Whether the services of the workman were terminated illegally by the management if so, to what effect and to what relief he is entitled to, if any? OPW
(2) Whether the reference is not maintainable? OPM
(3) Whether the reference is bad on the ground of delay and latches? OPM
(4) Relief.
Collective findings were recorded on all the issues. However, the learned Labour Court failed to record any cogent finding on issues Nos. 2 and 3. The main thrust of the award was on issue No. 1. The only observation made by the learned Labour Court on issues No. 3 and 4, is in concluding part of para 11 of the impugned award at page 57 of the paper-book and the same reads as under:-
..On account of unexplained delay in raising the dispute the workman should suffer loss of back wages and other consequential benefits prior to demand notice dated 17th January, 2004. In the given facts and circumstances, the relief should not be denied totally to the workman on account of delay and latches as it is a clear case of violation of Section 25-F of the ID Act. All these issues are decided accordingly in favour of the workman and against the management.
The Hon''ble Supreme Court in Neelam''s case (supra) laid down the law on belated demand notice by the workman. Reiterating the law laid down in The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, the Hon''ble Supreme Court observed, in paras 17 and 18 of the judgment, as under:-
In Nedungadi Bank Ltd. (supra), a Bench of this Court, where S. Saghir Ahmad was a member His Lordship was also a member in Ajaib Singh (supra), opined:
Law does not prescribe any time-limit for the appropriate Government to exercise its powers u/s 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference u/s 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made u/s 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub silentio.
Elaborating the law on this issue, the Hon''ble Supreme Court further made the following observations in paras 20 and 21 of Neelam''s case (supra):-
It is true that the Respondent had filed a writ petition within a period of three years but indisputably the same was filed only after the other workmen obtained same relief from the Labour Court in a reference made in that behalf by the State. Evidently in the writ petition she was not in a position to establish her legal right so as to obtain a writ of or in the nature of mandamus directing the Appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the Appellant in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court cannot be said to be an irrelevant one. The Labour Court in the aforementioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.
The matter might have been different had the Respondent been appointed by the Appellant in a permanent vacancy.
On the other hand, in Karan Singh''s case (supra) relied upon by the learned counsel for the workman, the Hon''ble Supreme Court in paras 10, 13, 14, 15 and 16 observed as under:-
In Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, it has been held, vide para 15, as follows:
There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government have chosen to refer the dispute for adjudication u/s 4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.
xx xx xx xx xx
In S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, the position was reiterated as follows: (at para 17:)
It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Limited Vs. Their Workmen, that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even reemployment of the most of the old workmen was held to be fatal in Shalimar Works Limited Vs. Their Workmen, , In The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, ), a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others Vs. Union of India and others, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal cum-Labour Court. We do not think that the appellants deserve to be non suited on the ground of delay.
The above position was highlighted recently in Employers in relation to the Management of Sudamdih Colliery of Employers in relation to the Management of Sudamdih Colliery of Bharat Coking Coal Ltd. Vs. Their workmen represented by Rashtriya Colliery Mazdoor Sangh, and Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal,
In the aforesaid background, we would have normally set aside the award of the Labour Court and the High Court. But because of long passage of time, it would be inappropriate, particularly when appellant has not even offered any semblance of explanation for the delay.
Accordingly we direct that the respondent-Board shall pay a sum of Rs. 60,000/- within a period of six weeks in full and final settlement of appellant''s entitlements.
Recapitulating the facts of the present case and respectfully following the law laid down by the Hon''ble Supreme Court in Neelam''s case (supra) as well as in Karan Singh''s case (supra), it is unhesitatingly held that since the case of respondent-workman was based on a stale claim, having been raised after about five years, he was not entitled for reinstatement in service. However, simultaneously, it also cannot be held that respondent-workman was not even entitled for compensation. He had rendered the service for more than 2-1/2 years. Thus, he was entitled for a reasonable amount of compensation.
Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others,
The Hon''ble Supreme Court, in a recent judgment in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, , held that even when the violation of the provisions of Section 25-F of the Act are established, reinstatement will not follow automatically in each and every case. The relevant observations made by the Hon''ble Supreme in this regard, in para 26 of the judgment in Gitam Singh''s case (supra), which can be gainfully followed in the present case, read as under:-
In Jagbir Singh, this Court, speaking through one of us (R.M. Lodha, J.) while dealing with the question of consequential relief arising from the facts quite similar to the present case, ordered compensation of Rs. 50,000/- to be paid by the employer to the workman instead of reinstatement. In paragraph 14 (pg. 335) of the Report, this Court held as under:
It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
Respectfully following the law laid down by the Hon''ble Supreme Court in Gitam Singh''s case (supra), this Court is of the considered view that ends of justice would be adequately met, if the impugned award is modified to the extent of granting an amount of Rs. 60,000/- as compensation to the respondent-workman, instead of reinstatement in service and 30% back wages, as granted by the learned Labour Court. Thus, with a view to do complete and substantial justice between the parties, it is held that the respondent-workman is not entitled for reinstatement in service but only to the compensation.
No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that CWP No. 14002 of 2011 filed by the respondent workman is misconceived, bereft of merit and without any substance, thus, it must fail. However, CWP No. 17836 of 2011 filed by the management deserves to be partly allowed.
Consequently, the impugned award passed by the learned Labour Court is modified to the extent indicated above. Respondent workman is held entitled only for compensation which is quantified at Rs. 60,000/-. The petitioner-management is directed to pay to the respondent-workman Rs. 60,000/- towards full and final settlement, within a period of three months from the date of receipt of a certified copy of this order. If the amount of compensation is not paid within three months, the respondent-workman shall be entitled for the amount of compensation of Rs. 60,000/- alongwith interest @ 9% from the date of the award till the date of actual payment.
Resultantly, with the observations made and directions issued here-in-above, both the writ petitions are disposed of, however with no order as to costs.