Surjan Singh vs Presiding Officer, Labour Court, Ambala & Ors.

KIRTI SINGH, J. (ORAL)

The instant petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the impugned award dated 28.01.2019 (Annexure P-4), passed by the learned Presiding Officer, Labour Court, Ambala, whereby the reference made at the instance of the petitioner-workman came to be dismissed.

Briefly stated, the case of the petitioner before the learned Labour Court was that he joined service as a Mali in April, 1994, on a basic salary of Rs.1,200/- per month, at Golden Line Canteen, Defence Cinema, Ambala Cantt. According to the petitioner, his work and conduct remained satisfactory and there was no complaint against him. His services were terminated vide memo No.269 dated 15.05.2004. Aggrieved thereby, he approached this Court by filing CWP No.9326 of 2004, which was disposed of on 18.09.2004 with a direction to the management to pass a speaking order regarding regularization of his services. Pursuant thereto, the management declined his claim for regularization vide order dated 20.01.2005. Thereafter, vide letter No.6385 dated 21.03.2005, the petitioner was retrenched and the management claimed to have paid retrenchment compensation of Rs.11,435/- through cheque No.258136 dated 11.03.2005. The petitioner, however, disputed the legality of the retrenchment as well as the manner and timing of payment of the said compensation, and subsequently raised a demand notice dated 16.04.2014. The same was rejected by the appropriate Government on the ground of delay vide order dated 15.12.2014. His review application was also dismissed on 08.09.2015. The petitioner thereafter challenged the said orders before this Court by filing CWP No.23224 of 2016. During the pendency of the said writ petition, the appropriate Government made a reference to the learned Labour Court for adjudication. The reference was received by the learned Labour Court on 18.07.2017, whereafter the petitioner filed his claim statement. The writ petition was subsequently withdrawn. The management contested the reference and pleaded, inter alia, that the dispute had been raised after an inordinate delay. The petitioner filed replication and asserted that he had continuously approached the management and had been assured that his services would be regularized. The learned Labour Court, after considering the pleadings and evidence led by the parties, ultimately dismissed the claim petition vide impugned award dated 28.01.2019.

Learned counsel for the petitioner submits that the learned Labour Court erred in dismissing the claim on the ground of delay, particularly when the Industrial Disputes Act, 1947 does not prescribe any period of limitation for raising an industrial dispute or seeking a reference under Section 10 thereof. It is submitted that Article 137 of the Limitation Act, 1963 has no application to proceedings under the Industrial Disputes Act. Learned counsel further submits that the petitioner, being a labourer and ordinarily having little knowledge of his legal rights, nevertheless approached this Court on more than one occasion in assertion of his grievance and, therefore, cannot be said to have remained inactive or to have slept over his rights. It is submitted that the petitioner had pursued his grievance by approaching this Court in CWP No.9326 of 2004, and, upon the management declining to regularize his services, repeatedly approached the management, which, according to him, continued to assure him that his services would be regularized. It is contended that when the management ultimately refused to take him back on duty, the petitioner was constrained to raise the demand notice dated 16.04.2014. Learned counsel further submits that even thereafter the petitioner pursued his remedy by challenging the rejection of the demand notice and the dismissal of his review application in CWP No.23224 of 2016, during the pendency whereof the reference came to be made to the learned Labour Court.

On the merits, learned counsel submits that the termination of the petitioner's services was illegal and in violation of the mandatory requirements of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. It is submitted that the petitioner had completed more than 240 days of continuous service and was thus entitled to the protection of Section 25-F before his services could lawfully be terminated. It is further submitted that the retrenchment compensation was not paid in accordance with law. According to the petitioner, although his services had been terminated vide memo dated 15.05.2004, the cheque towards retrenchment compensation bears the date 11.03.2005, whereas the subsequent retrenchment communication is dated 21.03.2005, and therefore the statutory requirement regarding payment of retrenchment compensation at the time of retrenchment was not complied with. It is contended that the termination amounted to a colourable exercise of power, inasmuch as persons junior to the petitioner were retained in service and regularized, in violation of the principle of "last come, first go", notwithstanding that the post held by the petitioner continued to exist. On these premises, interference with the impugned award is sought.

Per contra, learned State counsel submits that the petitioner's case for regularization was duly considered pursuant to the order passed by this Court, but he was found ineligible under the applicable Government policy and was informed accordingly vide the speaking order dated 20.01.2005. It is further submitted that the petitioner was thereafter retrenched and retrenchment compensation of Rs.11,435/- was paid to him, which he accepted without protest. Learned counsel submits that despite the aforesaid events, the petitioner raised the demand notice only on 16.04.2014 and failed to furnish satisfactory material demonstrating that his grievance regarding termination continued to remain alive during the intervening period.

I have heard learned counsel for the parties and perused the relevant material on record.

The question which arises for consideration of this court is whether the learned Labour Court was justified in declining relief on account of the delay in raising the industrial dispute, notwithstanding that the Industrial Disputes Act, 1947 prescribes no specific period of limitation for raising such a dispute.

While it is correct that the Industrial Disputes Act, 1947 does not prescribe a specific period of limitation for raising an industrial dispute, however the absence of a prescribed period of limitation does not mean that a dispute can be raised at any point of time irrespective of the circumstances. The relevant consideration is whether, notwithstanding the lapse of time, a live and existing industrial dispute continued to subsist.

In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, (2000) 2 SCC 455, the Hon'ble Supreme Court held that although no time-limit is prescribed for the appropriate Government to exercise its power under Section 10 of the Industrial Disputes Act, such power cannot be exercised mechanically so as to revive matters which have become stale. Whether a dispute has become stale depends upon the facts and circumstances of each case.

The aforesaid principle was considered in detail by the Hon'ble Supreme Court in Prabhakar v. Joint Director, Sericulture Department and another, (2015) 15 SCC 1. It was held that although the law of limitation does not apply to proceedings under the Industrial Disputes Act and the expression "at any time" in Section 10 indicates that no statutory period of limitation is prescribed, the workman must nevertheless demonstrate that the dispute continued to exist as a live dispute and had not become stale. The Court further recognised that where the workman is able to satisfactorily explain the delay, including by showing continued discussions or assurances by the management, the dispute may continue to remain alive; conversely, unexplained delay and absence of continued agitation may result in the dispute becoming stale.

In the present case, the record reflects that the petitioner's services were initially terminated vide memo dated 15.05.2004. He thereafter pursued proceedings before this Court in relation to his claim for regularization, which ultimately resulted in the management declining his claim vide order dated 20.01.2005. The record further reflects the subsequent retrenchment communication dated 21.03.2005. The petitioner raised the demand notice only on 16.04.2014. Thus, there was a substantial lapse of time between the aforesaid termination/retrenchment proceedings and the raising of the industrial dispute. The reference was thereafter received by the learned Labour Court on 18.07.2017.

It is true that the petitioner did not claim to have remained completely inactive. In his replication, he specifically asserted that he had continuously approached the management, that he had been assured that his services would be regularized and that, when the management ultimately refused to take him back, he raised the demand notice. The aforesaid explanation, however, was required to be tested on the evidence led before the learned Labour Court. The learned Labour Court noticed the evidence of MW2, Sh. Ramesh Kumar, Assistant in the office of the Divisional Forest Officer, Kurukshetra, and recorded that the said evidence had not been rebutted. It further noticed the prolonged lapse of time between the retrenchment and the raising of the dispute and the management's evidence regarding payment of retrenchment compensation. On consideration of the material before it, the learned Labour Court found that the delay had not been satisfactorily explained and answered Issue No.1 against the workman.

Thus, the present case is not one where the petitioner's explanation for the delay has been ignored altogether. The explanation was before the learned Labour Court; however, upon appreciation of the evidence, the learned Labour Court did not find the same sufficient to satisfactorily explain the prolonged intervening period or to establish that the dispute continued to remain alive. In these circumstances, the conclusion that the dispute had become stale cannot be said to be perverse or unsupported by the record.

The mere fact that the appropriate Government subsequently made a reference to the learned Labour Court does not, by itself, conclude the question whether the dispute had remained alive. The making of a reference under Section 10 of the Industrial Disputes Act does not, by itself, preclude consideration of the effect of inordinate delay in raising the dispute. Where, upon consideration of the facts and evidence, the dispute is found to have become stale, the mere making of a reference cannot, by itself, revive such a dispute or compel grant of relief. In the present case, therefore, the learned Labour Court cannot be said to have acted without jurisdiction merely because it considered the effect of the delay notwithstanding the subsequent reference.

The petitioner's contention regarding violation of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947, as also his assertion regarding the number of days worked in 2004 and 2005, pertains to the merits of the termination. These contentions were part of the petitioner's case before the learned Labour Court and are noticed as such. However, once the learned Labour Court found the claim to have become stale on account of the prolonged lapse of time, and the said finding is found to be sustainable on the material available before it, this Court, in exercise of its supervisory jurisdiction, need not reopen the merits of the termination after such an inordinate lapse of time.

The jurisdiction of this Court under Articles 226 and 227 of the Constitution, while examining an award of the Labour Court, is supervisory and not appellate. Interference is warranted where the findings are shown to be perverse, based on no evidence, or vitiated by patent illegality or jurisdictional error. In the present case, the finding of the learned Labour Court that the claim had become stale on account of the prolonged lapse of time is a finding based on appreciation of the evidence and material placed before it. No perversity or jurisdictional error has been demonstrated.

In view of the foregoing discussion, this Court finds no patent illegality, perversity or jurisdictional error in the impugned award dated 28.01.2019 warranting interference under Articles 226/227 of the Constitution of India.

Consequently, finding no merit in the present writ petition, the same is hereby dismissed.

Pending miscellaneous application(s), if any, shall also stand disposed of.