1 S.B.CIVIL WRIT PETITION NO.3933/2007 (Chhagan Singh Vs. State of Rajasthan & anr.) DATED : 24th September 2007 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Sanjeet Purohit for the petitioner … By way of this petition for writ, the petitioner seeks the reliefs of quashing of the communication dated 15.06.2005 (Annex.5) whereby the State Government has refused to refer the alleged dispute for adjudication; and directions against the respondent No.2 for referring the dispute to the appropriate Labour Court for adjudication. The petitioner has alleged that he entered into the services of Panchayat Samiti, Siwana on being appointed as Hand-Pump Mistry by the order dated 03.03.1984 and remained under continuous employment discharging his duties with sincerity; that the authorities of Panchayat Samiti, Siwana by oral order dated 31.07.1985 terminated his services in utter violation of the provisions of the Industrial Disputes Act, 1947 ('the Act'); that mandatory requirements of Section 25-F of the Act were not complied with, various employees junior to the petitioner were retained in service, and while making new appointments, the petitioner was not given preference violating Sections 25-G and 25-H of the Act; that the petitioner 2 continuously met the authorities of Panchayat Samiti, Siwana and requested to take him back in service and even got a notice served but with no response; that the petitioner raised an industrial dispute by filing an application before the Labour Welfare Conciliation Officer, Balotra (Annex.1) supported by various documents to substantiate his claim; that after receiving notice from the said Conciliation Officer, a reply was submitted by the Vikas Adhikari, Panchayat Samiti, Siwana and the fact of the petitioner having been appointed as Hand- Pump Mistry on 03.03.1984 was not disputed but it was alleged that he had worked upto the month of May 1984 only and had not completed 240 days of service and violation of Sections 25-F and 25-G of the Act was also denied; that a detailed rejoinder was submitted by the petitioner pointing out that his termination had been in clear violation of the requirements of the Act; and that he made repeated representations but no steps were taken by the authorities to redress his grievances. The petitioner has further pointed out that the conciliation proceedings failed and the Conciliation Officer forwarded his failure report (Annex.4) on 13.12.2004 to the Labour Commissioner, Government of Rajasthan, Jaipur. The petitioner has stated the grievance in the manner that it was surprising for him to receive the communication dated 15.06.2005 (Annex.5) issued by the respondent No.2, 3 Dy. Secretary, Government of Rajasthan, Department of Labour stating that since dispute has been raised after 20 years, it cannot be concluded that any industrial dispute exists; and the Government has refused to refer the dispute for adjudication to the competent Labour Court. The petitioner has urged that the respondent No.2 has been in error in issuing the impugned communication dated 15.06.2005 and in declining to refer the industrial dispute for adjudication without properly considering the case of the petitioner and the law applicable to the case; According to the petitioner, termination of his service was in violation of mandatory requirements of the Act and denial to refer the dispute on the ground that it was raised at belated stage without reason for delay is impermissible in law because such proposition amounts to deciding the matter on merits. It is further contended that the petitioner has not only challenged the termination order passed in the year 1985 but has also challenged the action of the employer in not considering his candidature while making fresh appointments and, therefore, there arise no question of any delay in raising the dispute. The petitioner has further averred that it was only in the year 1995 that courts of law have held that Hand-Pump Mistry is also a workman and can claim protection of the Industrial Disputes Act; and in pursuance of the said decisions, the State 4 Government has issued various circulars to regularise the services of Hand-Pump Mistries who had completed 240 days service in Panchayat Samitis; and in this view of the matter also, conclusion of the respondent No.2 is not sustainable. It has been urged that the Act of 1947 is a social welfare legislation intended to protect the interests of poor workmen and makes no provision for limitation with a view that justice should not be denied to the poor worker on technical grounds; that the Hon'ble Apex Court in various authoritative pronouncements has held that relief under the Act of 1947 cannot be denied to the workmen merely on the ground of delay; and even in cases of delay, the Labour Court may appropriately mould the relief but reference cannot be denied. It has also been contended that function of the appropriate government while referring the dispute is an administrative one; and when an industrial dispute exists, the Government has no option but to refer the same for adjudication to the competent Labour Court. It has, thus, been prayed that the communication dated 15.06.2005 may be quashed and the respondent No.2 may be directed to refer the dispute to the appropriate Labour Court. Having heard learned counsel for the petitioner and having examined the material placed on record, this Court is satisfied that this writ petition remains absolutely bereft of 5 substance and does not merit admission. While referring to its previous decisions, the Hon'ble Supreme Court in the case of Assistant Engineer, C.A.D., Kota Vs. Dhan Kunwar : AIR 2006 SC 2670 has been pleased to observe: “6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case. 7. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 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 heel 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 6 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.” 8. In S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as follows (at 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. It is true, as held in M/s. Shalimar Works Ltd. v. Their Workmen (AIR 1959 SC 1217) (supra), 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 dispute 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 re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their Workmen (AIR 1959 SC 1217) (supra). In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others AIR 2000 SC 839 (supra), a delay of 7 years was held to be fatal and disentitled to workmen to 7 any relief. In Ratan Chandar Sammanta and others v. Union of India and others (1993 AIR SCW 2214(supra), 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 Employees under P&T Department v. Union of India (AIR 1987 SC 2342) (supra), 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.” 9. In the background of what has been stated above, the Labour court should not have granted relief. Unfortunately, learned single Judge and the Division Bench did not consider the issues in their proper perspective and arrived at abrupt conclusions without even indicating justifiable reasons. 8 10. Above being the position, the appeal is bound to succeed and we direct accordingly. No costs.” (underlining supplied) Thus, the previous decisions of this Court and those of the Hon'ble Supreme Court are required to be read with reference to the latest pronouncement of the Hon'ble Supreme Court in Dhan Kunwar's case (supra); and, with the authoritative pronouncement of the Hon'ble Supreme Court, it is clear that there is no formula of universal application in relation to the delay in raising of the dispute and it depends on the facts of each individual case; but then, it cannot be said that delay in raising of dispute has no bearing on the matter or that irrespective of delay, the appropriate government is obliged to refer every dispute to the Labour Court. The submission that irrespective of delay, the government is bound to refer every matter for adjudication after receiving failure report from the Conciliation Officer is not correct and while rejecting a similar nature argument in S.B. Civil Writ Petition No.2185/2005: Mahaveer Singh Vs. The General Manager, Paschimi Rajasthan Dugdh Uptpadak Sahakari Sangh Ltd. & Ors., decided on 10.09.2007, this Court has pointed out,- ''The gist and essence of the matter stands summarized in the law declared by the Hon'ble Supreme Court in latest pronouncements in the 9 cases of Dhan Kunwar and Sham Lal (supra) that no formula of universal application could be laid down in relation to the delay in seeking reference; and it would depend upon facts of each individual case. The submission made by the learned counsel for the petitioner that irrespective of delay and irrespective of everything, the Government is bound to refer every case for adjudication, thus, remains untenable. The suggestion as made on behalf of the petitioner that the Government is bound to refer whenever a failure report is submitted and has no jurisdiction to refuse the reference does not appear to be the correct proposition of law; and stands contrary to the first part of Section 12(5) of the Act whereby the Government refers the case to the Board, Labour Court or Tribunal on being satisfied after considering the report made by the Conciliation Officer that there is a case for such reference. The proposition suggested on behalf of the petitioner, in effect would reduce the Government as a mere courier agency taking the dispute from the desk of Conciliation Officer to the Labour Court; and shall render otiose the later part of Section 12(5) of the Act whereby the Government may not make reference after recording and communicating its reasons therefor. The authority of the Government to examine if there exists a dispute in presenti or in apprehension cannot be denied. It is true that the legislature has not provided any time limit for raising of the dispute and making of reference but thereby it cannot be adopted as an abstract proposition that the dispute is available to be raised whenever the workman would choose to do so. Such proposition does not stand in conformity with the requirements of the statute and with the law declared by the Hon'ble Supreme Court as noticed above.'' In the present case, it is apparent on the face of record that in the name of raising of a so-called dispute, the petitioner has simply attempted to take a chance to litigate against the 10 erstwhile employer. Though the petitioner has not stated the date of filing of the application Annexure-1 but apparent it is that with reference to a so-called oral termination of service on 31.07.1985, the dispute has been raised for the first time in the year 2004. There are no particulars available on record about any so-called person junior to the petitioner having been retained or any other person having been employed on the same work. The Vikas Adhikari, Panchayat Samiti, Siwana had stated in his reply Annexure-2 that the petitioner's engagement was purely on contract basis for repairs of hand pumps at Rs.150/- per year per hand pump; and that he worked only in the months of April and May 1984 and was paid total amount of Rs.1,074/- for the hand pumps repaired by him. In the overall circumstances of the case, with the petitioner having failed to show any attempt to raise any dispute anytime earlier, the Government cannot be faulted in refusing to refer such a stale matter raised nearly 19-20 years after the alleged date of termination. It has been suggested in the writ petition that courts of law have held only in the year 1995 that Hand Pump Mistries are workmen and they can claim benefit under the Act of 1947. Apart that such averments are vague and uncertain, and apart that such averments hardly make out any case of any legal right in the petitioner, there appears no reason for the 11 petitioner attempting to raise a so-called dispute even on that basis only in the year 2004. This Court is clearly of opinion that the beneficial provisions of the Industrial Disputes Act are meant for relief in cases of bona fide disputes; and are not meant to be used for the purpose of forcing a litigation on the employer at any time with reference to any remote engagement once upon a time. Apart from the aforesaid, noteworthy it is that the petitioner has chosen not even to implead the alleged employer a party respondent in this writ petition. In the overall facts and circumstances of the case, this Court finds no cause or justification to issue any writ, order, or direction in this matter. The petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK