IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18147 of 2009 1. KEDAR SHARMA S/O LATE HAJO SHARMA MOHALLA- TRIMURTI NAGAR, GOLA ROAD NO.- 11, DANAPUR, PATNA Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, LABOUR RESOURCES DEPTT., GOVT. OF BIHAR, PATNA 2. THE BIHAR STATE ELECTRICITY BOARD, THROUGH THE SECRETARY, BIDHUT BHAWAN, BAILY ROAD, PATNA ----------- 02. 11.02.2011 Heard learned counsel for the petitioner, for the State and for the Board. The petitioner is aggrieved by the award dated 4.4.2009 passed by the Presiding Officer, Industrial Tribunal, Patna in Reference Case No. 10 of 2007. The reference in the award was whether denial of reappointment to the petitioner along with 21 other retrenched workmen and to promote him similarly as the other retrenched workmen was justified or not. The award holds the reference to be stale, apart from the conclusion that the petitioner had failed to prove that he was workman within the meaning of the Industrial Disputes Act. Learned counsel for the petitioner submits that no evidence placed by the petitioner has been considered. There was no endeavor for settlement made under Section 13 of the Industrial Disputes Act by conciliation. The finding that he was not a workman was wrong as any dispute can be referred under 2 Section 2K relating to a dispute or difference between the management and the workmen. Issue Nos. II and III have not been decided. Counsel for the Board supporting the award urged that the Labour Court rightly arrived at the conclusion that the reference was stale and merited no consideration. Reliance was placed on 2001 LAB. I.C. 2814 (Supreme Court) (Sapan Kumar Pandit Versus State Electricity Board and Others). The petitioner was appointed temporarily on 15.11.1973. 21 other persons were appointed in a similar manner. They were all terminated by one order on 24.5.1974. When names were called for in 1976, 21 names were sent excluding that of the petitioner. On 22.6.1976 these 21 persons were then appointed on regular basis. The petitioner coming to know subsequently approached the authorities, when he was appointed on 18.5.1977 as daily wage workman. In this background, he raised a claim before the Tribunal for equal status with the other 21 workmen. The Union then raised an Industrial dispute in 2003, sent for conciliation which failed and was then referred to the Tribunal as Reference Case No. 23 of 2003. The Labour Court declined to grant him any relief. The matter attained finality. 3 The petitioner accepted the daily wage employment on 18.5.1977 without demure. The contention today that he did so under compulsion is but a desperate argument which in any event does not appear to have been raised by him before the Tribunal, out of which the present award arises. Be that as it may, his cause was espoused by the union, referred for conciliation and which failed. Therefore, the contention that there has been violation of Section 13 of the Act before making the present reference has no relevance. There cannot be repeated conciliation on the same issue. The union espoused his cause unsuccessfully, when relief was declined in Reference Case No. 23 of 2003 when award was passed on 10.11.2006. It was allowed to attain finality till the petitioner sought to reopen matters individually leading to the present reference on 17.4.2007. The petitioner cannot be stated to have been prejudiced in any manner. Even if the matter was espoused on his behalf by the union, if he was aggrieved by the award dated 10.11.2006, considering that he was the subject matter of the same, he certainly had his remedies to question it which he chose not to do. An appointment made on 18.5.1977 was sought to be questioned for the first time on 17.4.2007 when the present reference 4 came to be made. The Tribunal has rightly noticed at paragraph 8 that the petitioner joined on 18.5.1977, but an Industrial dispute on his behalf was raised belatedly in the year 2003. If that delay was not sufficient, the present reference in 2007 was stale. The judgment of Sapan Kumar Pandit (supra) sought to be relied upon by the petitioner related to 15 years old claim. It was primarily considered in the background of the fact that the union dissatisfied with the award under which relief was claimed, filed a writ petition which was challenged unsuccessfully and the Special Leave Petition was again dismissed. The employee awarded waited in the fond hope that similar treatment shall be meted out to him and when it was not forthcoming the reference in question was made. Paragraph-13 of the same judgment adequately noticed that when a dispute is stale and could not be the subject matter of a reference under Section 10 of the I.D. Act would depend on the facts and circumstances of each case. The Court then proceeds to hold at paragraph-15 as follows:- “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. 5 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 then the Government have chose to refer the dispute for adjudication under 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 marking 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. This Court on the facts and circumstances of the case as discussed above including that of waiver by acceptance of daily wage status unquestioned till 2003 attaining finality in the earlier reference, conciliation having been done before the previous reference that the conclusion arrived at in the present award stands fully supported by the judgment of the Supreme Court holding such a reference to be ought right stale. The Court finds no reason to interfere with the impugned award. The writ application is dismissed. P.K. ( Navin Sinha, J.)