w w w . L a w y e r S e r v i c e s . i n



M/s. Bata India Limited, Represented by its General Manager-Manufacturing, Kuharan Mukhopadhyay, Bengaluru v/s State of Karnataka, Represented by its Secretary, Bengaluru & Another

    Writ Petition No. 47002 of 2015

    Decided On, 22 February 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE M. NAGAPRASANNA

    For the Petitioner: Syed Kashif Ali, Pradeep S. Sawkar, Advocates. For the Respondents: R1, M.C. Nagashree, AGA, R2, K.S. Subramanya, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to quash the order of reference dtd.31.3.2015
[Annex-J] passed by R-1.)

1. Petitioner-M/S Bata India Limited (hereinafter referred to as 'the Management' for short) has called in question reference made by the appropriate Government referring the dispute to the Industrial Tribunal at Bangalore (hereinafter referred to as 'the Tribunal' for short) for adjudication of its order dated 31.03.2015.

2. The brief facts for filing the present writ petition, as borne out from the pleadings, are as follows:-

The petitioner claims to be a company incorporated and engaged in manufacture and sale of footwear in various parts of the country. It transpires that one Sri D.C.Chikke Gowda (hereinafter referred to as 'the workman' for short) was appointed as Machine Operator in Grade-C, on 1-03-1993 and was placed on probation for a period of six months' and confirmed thereafter on 1-09-1993. The workman was also a member of the Bata Employees' Association. Alleging that the workman had indulged in certain acts of misconduct under the Standing Orders, two charge sheets were issued against the workman on 4-01-2000 and 13-05-2000, prior to which the workman was placed under suspension on 1-02-2000.

3. The allegations against the workman and several others were that the workman being one of the co-employees of other charge sheeted employees, had entered the enquiry hall and misbehaved with the Enquiry Officer by threatening him of dire consequences and used un-parliamentary language. The other charge sheet against the workman was that when he was working on 223 machine in general shift between 6.00 a.m. and 2.00 p.m. left the place of work without permission and told the shift in-charge of one Sri K.C. Dinesh that he will not allow the operators to start 220 machine until work norms or the demand of workers is decided. Broadly based on these allegations, the charge sheet, as stated hereinabove, was issued against the workman to submit his reply to the allegations. Not being satisfied with the reply the disciplinary authority appointed an Enquiry Officer to conduct enquiry against the petitioner on 23-01-2001 in respect of the aforesaid charge sheets. The workman did not submit any explanation thereafter. The Enquiry Officer conducted enquiry in respect of the charge sheet dated 4-01-2000 and held the workman guilty of the allegation. In respect of the second charge sheet dated 13-05-2000 the Enquiry Officer again held the workman guilty. During the pendency of consideration of the report of the Enquiry Officer by the Disciplinary Authority, the workman filed an application before the competent authority to recognize him as a protected workman on 24-04-2001 and during the pendency of those proceedings before the authority seeking the status of the protected workmen, the workman was dismissed from service on 16-07-2001.

4. The application filed by the workman for a declaration to be a protected workman was rejected on 17-08-2001. The Union filed a writ petition before this Court in Writ Petition No.32751 of 2001 which came to be allowed by directing the Competent Authority i.e., the Assistant Labour Commissioner to reconsider the rejection by an order dated 30-11-2001 against which a writ appeal was filed by the management which came to be withdrawn on 7-04-2005,after which proceedings took place before the Assistant Labour Commissioner who granted status of protected workman to the workman with retrospective effect. This was called in question by the management before this Court in Writ Petition No.6308 of 2005 which came to be dismissed by an order dated 31-01-2009, against which the management filed a writ appeal in Writ Appeal No.1030 of 2009 which came to be disposed of by the Division Bench holding that the appeal was rendered infructuous due to efflux of time against which the Union filed a Special Leave Petition before the Apex Court which again came to be dismissed on 22-08-2014 and the dispute raised after two months was justified. Therefore, the issue with regard to delay in raising the dispute is also made a point of reference for the Tribunal to decide, It is upon this, the Tribunal initiated proceedings. Immediately thereafter the management has filed this writ petition challenging the order of reference on the ground that it is stale.

5. Heard Sri.Syed Kashif Ali, learned counsel for Sri.Pradeep.S.Sawkar, learned counsel appearing for petitioner, Smt.M.C.Nagashree, learned Additional Government Advocate appearing for respondent No.1 and Sri.K.S.Subramanya, learned counsel appearing for respondent No.2.

6. The learned counsel appearing for the petitioner would submit that the petitioner in terms of the reference is now required to prove the misconduct and justify the order of dismissal, after 14 years, of the order being passed. He would contend that the reference ought to be turned down on the ground of delay itself as the employer cannot be saddled with the burden of proving or justifying the dismissal for the delay caused by the workmen. He would submit that the judgments of the Apex Court have clearly enunciated that delay would vitiate the reference.

7. On the other hand, the learned counsel appearing for the workmen would refute every contention and submit that the workmen is not guilty of any delay as he was diligently prosecuting his status of being declared a protected workmen under the Industrial Disputes Act 1947 which would protect an order of dismissal been passed against the workmen. He would submit that the workmen had filed the said application before the Competent Authority even before the Disciplinary Authority could pass an order of dismissal. The application before the Competent Authority for declaration of his status as a protected workmen under the act was filed on 24.04.2001 and the Disciplinary Authority imposing penalty of dismissal from service on 16.07.2001. He would further submit that the entire proceedings are now before the Industrial Tribunal which can also consider the aspect of delay as the reference itself speaks of it.

8. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and have perused the material on record, in furtherance where of the issue that falls for my consideration is whether the reference dated 31.03.2015 should be quashed on the ground of delay?"

9. Before embarking upon the facts of the case, I feel it germane to notice the law laid down by the Apex Court and other High Courts as to whether the delay in reference would vitiate the order of reference by the dispute becoming stale.

10. The Apex Court in the case of NEDUNGADI BANK LIMITED v. K.P.MADHAVANKUTTY, (2000) 2 SCC 455 has held as follows:

"6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 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 under Section 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 under Section 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 and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.

7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.

8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court. In National Engg. Industries Ltd. v. State of Rajasthan, (2000) 1 SCC 371 : JT (1999) 9 SC 377] this Court observed: (SCC p. 393, para 24)

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."

Subsequent to the said judgment, the Apex Court again considering the question of delay in reference in the case of DHARAPPA v. BIJAPUR COOP.MILK PRODUCERS SOCIETIES UNION LIMITED, (2007) 9 SCC 109 has held as follows:-

"29. This Court while dealing with Sections 10(1)(c) and (d) of the ID Act, has repeatedly held that though the Act does not provide a period of limitation for raising a dispute under Section 10(1)(c) or (d), if on account of delay, a dispute has become stale or ceases to exist, the reference should be rejected. It has also held that lapse of time results in losing the remedy and the right as well. The delay would be fatal if it has resulted in material evidence relevant to adjudication being lost or rendered unavailable (vide Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455: 2000 SCC (L&S) 283]; Balbir Singh v. Punjab Roadways, (2001) 1 SCC 133: 2001 SCC (L&S) 165]; Asstt. Executive Engineer v. Shivalinga, (2002) 10 SCC 167: 2003 SCC (L&S) 87: (2002) 1 LLJ 457] and S.M. Nilajkar v. Telecom Distt. Manager, (2003) 4 SCC 27: 2003 SCC (L&S) 380]). When belated claims are considered as stale and non-existing for the purpose of refusing or rejecting a reference under Section 10(1)(c) or (d), in spite of no period of limitation being prescribed, it will be illogical to hold that the amendment to the Act inserting Section 10(4-A) prescribing a timelimit of six months, should be interpreted as reviving all stale and dead claims."

Subsequently, the Apex Court again following Nedugandi Bank Limited, in the case of STATE OF KARNATAKA v. RAVI KUMAR, (2009) 13 SCC 746, has held as follows:

6. This Court has repeatedly held that stale claims should not be referred - vide Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455 : 2000 SCC (L&S) 283] and Executive Engineer v. Shivalinga, (2002) 10 SCC 167: 2003 SCC (L&S) 87]. We may also refer to the decision in Regl. Provident Fund Commr. v. K.T. Rolling Mills (P) Ltd, (1995) 1 SCC 181: 1995 SCC (L&S) 272] wherein this Court observed that: (SCC p. 182, para 4)

"4. when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness."

7. In this case the respondent did not choose to challenge the termination for 14 years. Merely because some other daily wagers had got some relief, he belatedly approached the High Court in 1998.

8. The writ petition was dismissed with an observation that the respondent was at liberty to make an application seeking reference. The contention of the respondent that reference was made on the direction of the High Court is therefore not correct. As the reference was stale, it ought to have been rejected on that ground alone.

9. It is not possible to expect the Assistant Executive Engineer to prove after 14 years that the daily wager did not work or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. Further when the State Government was not a party before the Labour Court, the respondent could not implead the State Government as a party in the writ petition challenging the award, nor can the High Court grant any relief against the State Government."

Further, the Apex Court in the case of RABHUBIR SINGH v. HARYANA ROADWAYS, (2014) 10 SCC 301 has held as follows:-

"11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate Government "at any time" may refer an industrial dispute for adjudication, if it is of the opinion that such an industrial dispute between the workman and the employer exists or is apprehended. Section 10(1) reads as follows:

"10. Reference of disputes to Boards, Courts or Tribunals. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:" (emphasis supplied)

Thus, it is necessary for us to carefully observe the phrase "at any time" used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant.

12. This Court in Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal [Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, (1979) 1 SCC 1 : 1979 SCC (L&S) 15] , after interpreting the phrases "at any time" rendered in Section 10(1) of the Act, held thus: (SCC p. 7, para 7)

"7. Section 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant. The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function."

Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate Government under Section 10(1) of the Act has the power, to make reference to either the Labour Court or the Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer.

13. Further, in Sapan Kumar Pandit v. U.P. SEB, (2001) 6 SCC 222: 2001 SCC (L&S) 946], it is held by this Court as under: (SCC p. 228, para 15)

15. 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 galvanised 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 has chosen to refer the dispute for adjudication under Section 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." (emphasis supplied)

14. Therefore, in our considered view, the observations made by this Court in Rajasthan State Agriculture Mktg. Board case [Rajasthan State Agriculture Mktg. Board v. Mohan Lal, (2013) 14 SCC 543] upon which the learned Additional Advocate General for the State of Haryana has placed reliance cannot be applied to the fact situation of the case on hand, for the reason that the Labour Court has erroneously rejected the reference without judiciously considering all the relevant factors of the case particularly the points of dispute referred to it and answered the second issue regarding the reference being barred by limitation but not on the merits of the case. The said decision has no application to the fact situation and also for the reason the catena of decisions of this Court referred to supra, wherein this Court has categorically held that the provisions of the Limitation Act under Article 137 has no application to make reference by the appropriate Government to the Labour Court/Industrial Tribunal for adjudication of existing industrial dispute between workmen and the employer.

15. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate Government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in Avon Services case [Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, (1979) 1 SCC 1 : 1979 SCC (L&S) 15] referred to supra.

Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services [Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, (1979) 1 SCC 1 : 1979 SCC (L&S) 15] and Sapan Kumar Pandit, (2001) 6 SCC 222 : 2001 SCC (L&S) 946] cases referred to supra.

16. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in S.M. Nilajkar v. Telecom District Manager, (2003) 4 SCC 27 : 2003 SCC (L&S) 380] , it was held by this Court as follows: (SCC pp. 39-40, para 17)

"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. In Ratan Chandra Sammanta v. Union of India, (1993) Supp4 SCC 67 : 1994 SCC (L&S) 182 : (1994) 26 ATC 228] 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 to any relief." (emphasis supplied)

17. In view of the legal principles laid down by this Court in S.M. Nilajkar, (2003) 4 SCC 27 : 2003 SCC (L&S) 380] , the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute between the parties was made within a reasonable time, considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer.

18. In Ajaib Singh v. Sirhind Coop. Mktg.-cum- Processing Service Society Ltd, (1999) 6 SCC 82 : 1999 SCC (L&S) 1054] this Court has opined that relief cannot be denied to the workman merely on the ground of delay, stating that: (SCC p. 90, para 10)

"10. 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 is shown to be existing, the tribunal, LabourCourt 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." (emphasis supplied)

19. Hence, we are of the opinion, having regard to the facts and circumstances of the case that there is no delay or laches on the part of the workman from the date of his acquittal in the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance given to the workman that he would be reinstated after his acquittal from the criminal case, the workman approached the conciliation officer and the State Government to make a reference to the Labour Court for adjudication of the dispute with regard to the order of dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant and the date on which he approached the conciliation officer by raising the dispute, since the respondent had not adhered to its assurance, the State Government had rightly referred the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part of the appellant in raising the dispute and getting it referred to the Labour Court by the State Government.

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 and 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."

Referring to the aforesaid judgment, the law now is settled by the Apex Court in the case of PRABHAKAR v. SERICULTURE DEPARTMENT, (2015) 15 SCC 1 as follows:-

"36. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of the petitioner on 1-4-1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for a number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after a lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workman did not raise any protest and did not demand his reinstatement, the employer presumed that the workman has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workman, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a "dispute" what had otherwise become a buried issue.

37. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".

41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is nonexistent.

42. On the basis of the aforesaid discussion, we summarise the legal position as under:

42.1 An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that "any industrial dispute exists or is apprehended". The words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.

42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist.

Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred.

42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.

42.6 In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.

43. We may hasten to clarify that in those cases where the court finds that dispute still existed, though raised belatedly, it is always permissible for the court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.

44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry.

45. On the application of the aforesaid principle to the facts of the present case, we are of the view that the High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had no jurisdiction or power to make reference of a non- existing dispute."

Therefore, in the light of the law laid down by the Apex Court in the aforesaid cases, which are relied on by both the learned Counsel for the parties, what would unmistakably emerge is that the workman or the Union espousing the cause of the workman should be diligent or indolent. The workman should not have slept over his rights for a long period and should have a plausible explanation for the delay in raising the dispute. A dispute in a given case should exist and should not have become stale.

11. On the bedrock of the principles laid down by the Apex Court in the case of Prabhakar (supra), the facts of the case at hand will have to be considered for which the narration of dates and events are required to made. The workman was proceeded against departmentally by issuance of two charge sheets which resulted in the Enquiry Officer holding the workman guilty and the matter was placed before the Disciplinary Authority for appropriate orders. During the pendency of those proceedings the workman filed an application on 24-04-2001 before the Assistant Labour Commissioner who is the competent authority for declaration of his status as a protected workman under Section 33(4) of the Industrial Disputes Act. During the pendency of those proceedings, the management dismissed the workman on 16.07.2001. If the competent authority had declared the workman to be a protected workman the order of dismissal could not have been passed without permission of the competent authority under Section 33(3) of the Act. It is, therefore, that these proceedings become relevant.

12. During the pendency of the case, an order was passed by the management dismissing the workman from service on 16.07.2001 on which a serial Application was filed by the Management seeking approval of the penalty that was imposed on 16-07- 2001. The Application filed by the workman seeking the status of a protected workman was dismissed by the competent authority on 17-08-2001, after which the serial Application filed by the management seeking approval of the order of dismissal was allowed without hearing the Union by its order dated 5.12.2001.

13. Against allowing of the Application for approval of the dismissal of the workman, the Union filed a writ petition before this Court in Writ Petition No.25656 of 2003 which came to be dismissed on 28.05.2007.

14. The other proceeding where the workman had sought the status of protected workman was rejected by the competent authority on 17-08-2001 which was challenged by the Union before this Court in Writ Petition No.32751 of 2001. A learned single Judge of this Court allowed the writ petition by his order dated 30.11.2001 and remanded the matter back to the Assistant Labour Commissioner to reconsider the issue, against which the management filed a writ appeal in Writ Appeal No.210 of 2002 which was withdrawn by the management on 7.04.2005.

15. After the said remand, the Assistant Labour Commissioner in the remand proceedings granted the status of protected workman to the workman against which the management preferred writ petition in Writ Petition No.16208 of 2005. The writ

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petition was dismissed affirming the order of the Assistant Labour Commissioner granting the status of protected workman against which the management preferred writ appeal in Writ Appeal No.1030 and 1384 of 2009. When the matter came up before the Division Bench on 04.04.2013 noticing the fact that Union's request made in 2002 to grant the status of protected workman to the workman had become infructuous and disposed of the writ appeal against which the Union filed a Special Leave Petition before the Apex Court in S.L.P.Nos.12785 12788 of 2013. This also came to be dismissed on 22.08.2014. 16. After the checkered legal battle between the workman and the management with regard to grant of status of a protected workman to the workman having failed, the Union later raised a dispute before the competent authority on 20.10.2014, two months after the dismissal of the Special Leave Petition before the Apex Court. The appropriate Government on failure of conciliation noticing the fact that the dispute still existed, referred the matter for its adjudication to the Industrial Tribunal in terms of the aforesaid reference on 31.03.2015. The reference itself speaks as to whether the dispute is to be held maintainable after 13 years of the order of dismissal. 17. In my considered view, on the ground that the dispute had become stale and the delay on the part of the workman, as contended by the learned counsel for the management is unacceptable, as the entire narration of dates hereinabove of the events that have taken place would lead to an unmistakable conclusion that the workman or the Union were not indolent as they were diligently prosecuting the proceedings for getting the status of a protected workman to the workman, which in fact was allowed by the competent authority and the writ petition against that filed by the management was dismissed by an order dated 31.01.2009 and the entire proceedings ultimately culminated in dismissal of a Special Leave Petition filed by the Union on 22.08.2014. 18. The dispute having been referred immediately thereafter, cannot be held to be unsustainable on the ground of delay. The Apex Court in the case of Prabhakar (supra) at paragraphs 42.5, 43, 44 and 45 after analyzing the entire spectrum of law with regard to delayed reference has clearly held that if the workman was agitating his right even before a wrong forum, it cannot be said that the dispute is not alive and such a dispute cannot be turned down on the ground of delay. In all the afore-extracted judgments, the law that is laid down is that if the Labour Court would find that the dispute was in fact delayed it can always mould the relief to either grant reinstatement or lesser backwages or no backwages. The issue is at large before the labour Court and the order of reference in my considered view cannot be annulled on the ground of delay. 19. Insofar as the other two judgments relied on by the learned counsel for the management of this Court, those judgments are distinguishable on facts without much ado, as both the judgments concern cases whether the workman had slept over his rights for ages and in fact knocked the doors of the Labour Court after close to 10 years that too without any explanation for delay. Therefore, both the judgments relied on by the learned counsel for the management, one of which is that of coordinate Bench in Writ Petition No.433 of 20013 and the other rendered by me in Writ Petition No.19195 of 2015 are wholly inapplicable to the facts at hand. The law laid down by the Apex Court in the case of Raghubir Singh as considered in the case of Prabhakar (supra) is apposite to the facts of the case at hand. 20. For the aforesaid reasons, I pass the following: ORDER (i) The writ petition is dismissed. (ii) Since the issue of dismissal from service is of the year 2001, I direct the Industrial Tribunal to conclude the proceedings within outer limit of six months' from the date of receipt of copy of the order. (iii) It is needless to observe that the parties to the lis shall co-operate in the proceedings before the Industrial Tribunal failing which, the Industrial Tribunal for reasons to be recorded, is at liberty to proceed further in accordance with law.
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