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Judgment
Being aggrieved by the rejection of the writ petition filed by the Management, the present appeal is filed.
The case on hand has a long history. To be in brief, the appellant/Management used to award contract for breaking, sorting, loading and unloading of quartz every year by calling for the tenders. The contractors used to engage contract workers of their choice. In the year 1983, since there was an huge accumulation of quartz at VISL, it deckled to short close the contract awarded to the contractors and as such, the operation of the mines was closed with effect from 1.4.1983. In turn, the contractors terminated the services of the contract workers. Aggrieved by the same, the contract workers at one of the mines formed a union and raised an Industrial Dispute, which was referred to the Central Government Industrial Tribunal. The Tribunal directed reinstatement with back wages and consequential benefits.
The appellant/Management challenged the award by way of writ petition. This Court by way of interim order directed the Management to provide work to the workers either under the Contractor or VISL with effect from 1.4.1988.
Accordingly out 182 contract workers, 161 who reported for duty were taken on job. Ultimately, the writ petition, writ appeal and SLP filed by the Management also came to be rejected. In pursuance of the directions of the Hon''ble Supreme Court, 102 contract workers who were on the roll of the contractors were taken on the roll of the company and arrears of wages as ordered were also paid to the eligible contract workers.
Respondent Nos. 2 and 3 herein, who were working with a contractor - M/s. B. Subramanya Reddy & Company remained unauthorisedly absent from January 1992 and as such, their services came to be terminated by the contractor with effect from 25.5.1992. This order of termination was not challenged by respondent Nos. 2 and 3 - workmen.
As already noted, in the SLP filed by the Management, only the contract workers working were directed to be taken on the roll of the company but respondent Nos.2 and 3 did not approach the Management It is also not in dispute that as per the workmen themselves, they were working with a landlord in Ramagiri Taluk, Chitradurga District for about 10 to 12 years and now they have returned back to the B.B. Mines and made a claim for reinstatement as per the order of the Hon''ble Supreme Court However, after the judgment of the Hon''ble Supreme Court, the respondents came and received the wages for the period of 1988-89 to 1991-1992 as per the settlement sheet in a sum of Rs. 31,634.25 ps. and Rs. 31,944.51 pa. respectively. It is to be noted that both the workmen did not demand employment. In the year 2000, these workmen filed an application before the Controlling Authority, Central Government, for payment of gratuity. However, in the year 2001, they withdrew the claim applications on the ground that they had filed writ petition before this Court It is to be noted that no such writ petition was filed. However, the applications came to be withdrawn and gratuity claim cases were closed.
Subsequently, the Management received a claim application from the Assistant Labour Commissioner (Central), Hubli for reinstatement of the respondents as regular employees consequent to their termination on 25.5.1992. The said claim was resisted by the Management However, the 1st respondent exercising the jurisdiction u/s 10(2A) of the Industrial Disputes Act, 1947 (14 of 1947) referred the dispute in question to the Central Government Industrial Tribunal-cum-Labor Court, Bangalore with a direction to pass award within 3 months. The reference was Whether the management of Steel Authority of India Ltd. Vishweshwaraiah Iron & Steel Plant, Bhadruwati is justified in terminating the services of Sri Haraumanaik (respondent No. 2) and Smt. Shivamma (respondent No. 3) with effect from 25.5.1992? If not, to what relief the workmen are entitled to?
Being aggrieved by this order, dated 16.7.2007. the Management approached this Court in the impugned W.P. No. 18515/2007 on the ground that the authority committed an error and illegality in referring the stale and old dispute pertaining to the year 1992, that too after a lapse of 15 years. The learned Single Judge considering the arguments, at the admission stage itself; rejected the writ petition on the ground that, before the Government, the respondent workmen had no opportunity to lead evidence and to explain the delay and as such, at the threshold, the claim of the workmen cannot be thrown out on the ground of delay.
Being aggrieved by the order of tins Court, dated 29th November 2007, the present appeal is filed. Notices were ordered and the respondents are represented by the Counsel As the scope of enquiry is in a narrow compass, with the consent of the Counsel on both sides, the matter itself was taken up for final disposal.
There is no dispute that the services of the workmen were terminated in the year 1992 and they have sought for reference in the year 2006. But what is disputed is, whether the Tribunal Labor Court has jurisdiction to reject the reference on the sole ground of delay and laches. In this regard, the learned Counsel for the workmen has relied upon the pronouncement of the Apex Court in the case of Irrigation Research v. Kripal Singh 2008 I LLJ 69; Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, ; Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, and Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, to contend that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act and that the relief under it cannot be denied to the workmen merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of feet 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 if there is a delay, the provisions of Industrial Disputes Act being social legislation, the relief to be granted to the workmen can be moulded appropriately.
When we questioned the Counsel for the Management in this regard, he submitted that, no doubt as observed by the Apex Court in the aforesaid judgments, the Tribunal or the Labour Court cannot refuse to answer the reference because of belated approach, but it is submitted that as held in the case of Karan Singh Vs. Executive Engineer Haryana State Marketing Board, wherein it is held that the Industrial Tribunal cannot invalidate the reference on the ground delay. If the employer says that the workman has made a stale claim, then the employer must challenge the reference by way of Writ Petition and say that since the claim is belated, there was no industrial dispute. It is also submitted that in the light of the subsequent pronouncements of the Apex Court in the case of Assistant Executive Engineer, Karnataka v. Shivalinga, (2002) 1 LLJ 457SC ; in the case of Manager (Now Regional Director) R.B.I. Vs. Gopinath Sharma and Another, ; in the latest pronouncement in the case of Director, Food and Supplies, Punjab and Another Vs. Gurmit Singh, ; and Assistant Engineer, C.A.D., Kota Vs. Dhan Kunwar, it is held that if a stale claim is made, the Court can consider the same.
Having heard the learned Counsel on both sides, in our view, as observed by the Apex Court in various pronouncements, so far as the delay in seeking reference is concerned, no formula of universal application can be laid down. However, in the case of The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, it is observed thus:
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 Ions 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. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed from service and subsequently reinstated is nowhere mentioned Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.
In the case of S.M. Nilajkar v. Telecom District Manager 2003 SCC 380 it is held thus:
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 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 the 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.
Keeping in mind the aforesaid pronouncements, we have considered the case on hand. As already noted, services of respondent Nos.2 and 3 who were contract workers came be terminated as long back as in the year 1992 by the contractor, who had undertaken the work for The appellant/Management No doubt the union in respect of other workmen had raised dispute for terminating their work because of closure of the operation of the mines with effect from 1.4.1983 and the Tribunal by its award, directed reinstatement with back wages and consequential benefits. This award came to be challenged in this Court and by an interim measure, this Court had directed the management to provide work to the contract workers either under the contractors or VTSL with effect horn 1.4.1988. It is the case of the management that in pursuance of the same, the management again invited tenders and awarded the contracts to M/s. B. Subramanya Reddy and Company and three other contractors and provided work to the contract workers. It is also not in dispute that after the writ petition and writ appeal filed by the management came to be dismissed, the Management approached the Hon''ble Supreme Court by way of SLP which are also disposed of in the year 1995. In accordance with the order of the Hon''ble Supreme Court, 102 contract workers, who were on the roll of the contractor, were taken on the roll of the Company. They were also paid arrears of wages. However, few contract workers, who were working under the contractors during the pendency of the matter before this Court obtained the job and few others left the job by remaining absent to the duty continuously. It is the case of the Management that respondent Nos.2 and 3 remained absent for duty unauthorized with effect from 1992 and as such bv the order, dated 15.5.1992 their services came to be terminated. It is also not in dispute that respondent Nos.2 and 3 did not challenge the termination. However, when the Hon''ble Supreme Court while disposing of the SLP filed by the Management, directed it to take the contract workers on the roll, these respondent Nos. 2 and 3 did not approach the Management However, it is also not in dispute that on 24.3.1995 they came and received arrears of the wages for the period 1988-39 to 1991-92 in a sum of Rs. 31,634.25 and Rs. 31,944.51. It is to be noted that even at that stage, they did not demand employment and went away after receiving the payment as they were gainfully employed elsewhere and possibly were not interested in the employment with the appellant.
Even in the year 2000, these workmen respondent Nos. 2 and 3 though filed application before the Controlling Authority Central Government for payment of gratuity, the same came to be withdrawn on the ground that they had filed the writ petition before this Court It is not in dispute that no such writ petitions were filed and as such, their gratuity claim cases were also closed. Thereafter, it is only in the year 2006, the present reference is sought challenging termination of their services in the year 1992.
No doubt considering the earner pronouncements of the Apex Court, the learned Single Judge has refused to interfere with the order of reference on the ground that it is open for the Management to challenge regarding the stale claim before the Tribunal wherein both the parties will have opportunity to lead evidence in this regard.
In our view, taking into consideration the peculiar facts and circumstances especially the conduct of the respondents/workmen viz., keeping quite for almost more than 13 years from the date of termination for raising industrial dispute and especially, when they accepted the wages for the period 1988-89 to 1991-92 in the year 1995, as per the pronouncement of the Apex Court in the SLP of the Management and still did not demand employment or questioned the termination, in the year 2000 they filing an application claiming for the gratuity and withdrawing the same, indicates that all along these workmen were aware of not only their termination but also their rights or entitlement for reference challenging termination. Having kept quite all along for more than 13 years, now raising the dispute only because the Apex Court had directed regularisation of other workmen, in our view, the stale claim of respondent Nos. 2 and 3 cannot be revived and given life.
In the light of the pronouncement of the Apex Court in Nedungadi Bank Lid''s case as well as S.M. Nilajkar''s case (supra) and as held in Ratan Chandra Sammanta v. Union of India and Ors. 1993 MR SCW 2214, a casual labour retrenched by the employer deprives himself of remedy available in law by delay itself as lapse of time results in loosing the remedy and the right as well No doubt there is no limitation or time limit prescribed under the Industrial Disputes Act for the appropriate Government to exercise power u/s 10 of the Act, but, that does mean that this power can be exercised at any point of time and to revive stale matters. Hence, in our view, the demand raised by the respondent for raising the industrial dispute was ex-facie bad and incompetent and as such, the learned Single Judge, in our view, was not right in driving the Management once again to go before the Tribunal and raise the question of delay and latches. As observed by the Apex Court in Karan Singh''s case, it is open for the Management to challenge the same before this Court and as rightly observed in various pronouncements by the Apex Court, the question whether the delay and latches would be fetal in respect of raising of dispute, has to be considered on the facts of each case. In the peculiar facts and circumstances as narrated in detail above, in our view, the dispute being stale as almost 13 years have elapsed from the date of termination and inspite of opportunity available, the respondents not taking the recourse at the earliest, especially when in the year 1995, they received the back wages or in the year 2000 when they claimed for gratuity, the present reference is barred by delay and latches and hence, the writ petition ought not to have been rejected by the learned Single Judge.
For the reasons stated above, in our view, the writ petition deserves to be allowed and the reference and the Government Order bearing No. L-26012//2007-IR(M), dated 16.7.2007 deserve to be quashed. Ordered accordingly.
In the facts and circumstances of the case, there shall be no orders as to costs.