Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.534 of 2007 (M/S) Yash Pal Singh S/O Sri Gyan Singh R/O V.P.O. Bahadarpur Jatt, District Haridwar. …… Petitioner. Versus State of Uttarakhand, through its Secretary, Ministry of Labour, Civil Secretariat, Dehradun and three others. … Respondents. Sri Pankaj Miglani, learned counsel for the petitioner. Learned Additionoal Chief Standing Counsel for the State-respondents no. 1-3. Sri V.K.Kohli, Senior Advocate, with Sri T.C.Pande, learned counsel for the respondent no.4. Date July 25, 2008. Hon’ble B.S.Verma, J. This writ petition has been filed to issue a writ, order or direction quashing the impugned orders dated 14-8-2006 and 23.2.2007 passed by respondent no.2 contained in Annexures No. 12 and 14 respectively to the writ petition. Prayer has also been made for a direction to respondent no. 3 to refer the dispute to the labour court for its adjudication. Brief facts, giving rise to the present writ petition, are that the petitioner was engaged by respondent no. 4 on the post of fitter in Block III on 8-10-1975 and he worked there till 1.7.1977. Thereafter since 2.7.1977, the petitioner was illegally refused to work in the concern of respondent no.4. According to the petitioner, he made every effort to get his job back but of no avail. The petitioner made complaint to the Assistant Labour Commissioner Saharanpur. Then the petitioner was informed by letter No. 8269/S.Pur/Haridwar (BHEL)/95 dated 13.7.1995 that since respondent no. 4 was not taking him back on work, therefore, he may put his grievances before the Conciliation Officer for consideration. 2 Upon the said advice, the petitioner raised an industrial dispute by making application under Section 2-A of the U.P. Industrial Disputes Act (for short the Act). The Conciliation Officer rejected the application by order dated 6.4.1995 on the ground of delay and because no application for condonation of delay was annexed to the application. According to the petitioner, there was no question of delay on the part of the petitioner. Aggrieved, the petitioner preferred appeal before the Deputy Labour Commissioner, Meerut, who remanded the matter for hearing afresh by the Conciliation Officer. The Conciliation Officer rejected the application of the petitioner by his order-dated 12.12.1997 on the sole ground of delay. Aggrieved, the petitioner filed second application on 1.4.1998 along with the delay condonation application. The Conciliation Officer by his order- dated 17.7.1999 rejected the delay condonation application moved by the petitioner. The petitioner again moved an application under Section 2-A of the Act and by order dated 25.8.2001, the Conciliation Officer proposed to refer the matter to the State Government for making reference to the Labour Court under Section 4-K of the Act. The matter was ultimately dropped by the respondent no.2 by order dated 18-1-2002 on the sole ground that since the petitioner had not worked for more than 240 days in 12 preceding calendar months, hence there was no dispute between the parties. The petitioner made several representations to respondent no. 3 on different dates as mentioned in paragraph no. 6 of the memo of writ petition. After hearing both the parties, the respondent no. 3 rejected the representations of the petitioner on the ground of delay as well as on the ground that the petitioner had not completed 240 days continuous service. It was held that there existed no industrial dispute between the parties. 3 The petitioner ultimately preferred a Writ Petition No. 191 (M/S) of 2005 before the High Court. The same was dismissed vide order dated 5-9-2005. The petitioner preferred Special Appeal No. 73 of 2005, which was dismissed in limine vide order dated 21- 11-2005. It was observed in the orders passed by the High Court that the delay in raising the dispute was unexplained. The petitioner again made an application on 4-1-2006 under Section 2-A of the Act explaining all the facts and circumstances that there was no delay on his part and as soon as the petitioner was advised by the Conciliation Officer, the application under Section 2-A of the Act was made and prior to that the petitioner approached the respondent authorities regularly. Notices were issued to the respondent no.4, who filed its reply and ultimately, a failure report of the conciliation proceeding was sent to respondent no. 2, who issued notices to both the parties. The respondent no. 2 by his order dated 14-8-2006 rejected the application of the petitioner on the ground that his writ petition had already been dismissed vide order dated 5-9-2005 passed by the High Court. The petitioner again made an application to respondent no.2 on 5-10-2006, which too was rejected by order dated 23.2.2007. Counter Affidavit has been filed on behalf of respondent no.4. It was stated in paragraph no. 4 of the counter affidavit that it has already been held in the decision given in Writ Petition NO. 191 (M/S) of 2005 Yashpal Singh Vs. State and others that the petitioner had worked only for 39 days including the days in which he was ill. Hence his petition under Section 2-A of the Act was rightly rejected and the present writ petition on the same cause of action is not legally maintainable. It was also stated in the counter affidavit that the Conciliation Officer had rightly rejected the application of the petitioner on the ground of delay. It was also stated that in view of the order dated 18th January 2002 passed by 4 the respondent no. 2, the petitioner had no right to move any fresh petition. It was further stated in counter affidavit that the writ petition no. 191 (M/S) of 2005 Yash Pal Singh Vs. State and others was dismissed by this Court vide order dated 5-9-2005 and the Special Appeal having been dismissed by this Court, the petitioner had no right to move any application under Section 2-A of the Act as barred by the principles of res-judicata. I have heard learned counsel for the parties and perused the memo of writ petition and the counter affidavit filed by the respondent no.4 and the rejoinder affidavit, filed by the petitioner. Firstly, it has been contended by the learned counsel for the petitioner that the second application is not barred by principles of res-judicata because the dispute raised by the petitioner has not been adjudicated on merits, hence even after dismissal of the writ petition, the State Government can refer the matter. In support of his contention, the learned counsel has placed reliance upon the case of M/s Western India Watch Co. Ltd. Vs. The Western India Watch Co. Workers Union and others [AIR 1970, Supreme Court, 1205], wherein it was held that “ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can “at any time”, i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication.” It was inter alias held in paragraph no. 14 as under:- “14. In the present case though nearly four years had gone by since the earlier decision not to make the reference, if the Government was satisfied that its earlier decision had been arrived 5 at on a misapprehension of facts, and therefore, required its reconsideration, neither its decision to do so nor its determination to make the reference can be challenged on the ground of want of power. The fact that the dispute between the concerned workman and the management had become an industrial dispute by its having been espoused by the union since 1957 cannot be disputed. The fact that the workman was then not a member of the union does not preclude or negative the existence of the community of interest nor can it disable the other workmen through their union from making that dispute their own.” The ratio of the Apex Court judgment cannot be disputed. The facts of the case before the Apex Court are quite distinct from the facts of the case at hand. In the case before the Apex Court, it was the State Government, who made a reference of the dispute on the representation made by the respondent-union, while in the case at hand, the respondent no.2 has rejected the application/representation of the petitioner to refer the matter to Labour Court for adjudication. Moreover, in the case at hand, admittedly, the petitioner had come up before this Court in Writ Petition No. 191 (M/S) of 2005, Yesh Pal Singh Vs. State of Uttaranchal and others. The writ petition was dismissed by this Court vide order dated 5-9- 2005. A perusal of the order goes to show that the petitioner applied for apprenticeship with respondent no. 4 and by letter dated 15-9-1975, petitioner was called for interview and was selected for the same. The petitioner remained as apprentice for the period 8- 10-1975 to 7-6-1976. Thereafter by order dated 24-05-1977, the petitioner was appointed on the post of Fitter. Thereafter, the petitioner was appointed afresh by letter dated 9-6-1977 for a period of one month. During the period of fresh appointment, the petitioner fell seriously ill. The petitioner was refused to resume his duties after recovery from illness. Petitioner made several representations to respondent no.4 and on 14-8-1995, he raised an 6 industrial dispute by making an application under Section 2-A of the U.P. Industrial Disputes Act. The application was rejected by order dated 6.4.1996 on the ground of delay. Again, the petitioner made applications for condonation of delay on 23-12-1996 and 1-4- 1998, which were subsequently rejected vide orders dated 12.12.1997 and 17-7-1999 by the then Conciliation Officer. Again on 20-5-2000, another application was moved under Section 2-A of the Act and, ultimately, the matter was proposed by the Conciliation Officer fit to be sent to the State Government for making reference to Labour Court under Section 4-K of the Act. Record shows that the presentations of the petitioner had been rejected time and again, which gave rise to the Writ Petition No. 191 of 2005 (M/S). This Court had also observed that “the number of days on which the petitioner worked with the Respondent No. 4 including the days in which he was ill, he has worked only for 39 days. As such, now he cannot be allowed to raise such a dispute after lapse of such a long time.” Against the order dated 5-9-2005, the petitioner filed Special Appeal No. 73 of 2005 Yesh Pal Singh Vs. State of Uttaranchal and three others, which too was dismissed on merits by the Division Bench of this Court vide order dated 21.11.2005. There is no material on record to indicate that the petitioner has ever challenged the orders passed by this Court before the Apex Court. The order dated 5-9-2005 passed in Writ Petition No. 191 (M/S) of 2005 has already attained finality. Since this Court had already observed in the order dated 5-9-2005 that the petitioner cannot be allowed to raise such a dispute after lapse of such a long time and the said order has attained finality, therefore, the case-law M/s Western India Watch Co. Ltd. (supra) is of no help to the petitioner. Learned counsel for the petitioner has further contended that there is no bar in making second reference. He has relied upon the judgment of the Apex Court in the case of Virendra 7 Bhandari V. Rajasthan State Road Transport Corporation and others [JT 2002 (5) SC 21], wherein it has been observed that “A perusal of the award made on the earlier occasion will clearly indicate that there is no adjudication of the dispute at all. All that was stated was that the concerned parties had not appeared before the tribunal and in such an event, the tribunal should have noted its inability to record the finding on the issue referred to it not that the dispute does not exist. When there is no adjudication of the matter on merits, it cannot be said that the industrial dispute does not exist.” The ratio of the Apex Court judgment cannot be disputed but the facts of the case at hand are quite distinct, because in the case before the Apex Court the Government by another order made a reference of the dispute to the tribunal on the same questions on which earlier reference had been made. In the case at hand, the prayer for making a reference to the labour court had been declined by the respondent-authorities. In the case at hand, it is obvious that no disputed existed between the parties. The learned counsel for the petitioner has further placed reliance upon the case of Uttaranchal Forest Development Corporation Vs. M.C.Joshi [2007(113) FLR 191] (Supreme Court), wherein the Apex Court has observed that the Conciliation Officer purported to have condoned the delay. He could not do so. There is no dispute that the U.P. Industrial Disputes Act does not provide for any period of limitation. But it is now well settled that the relief to which a workman would be entitled to in such a situation would depend upon the facts and circumstances of each case. In that case, the workman was employed as daily wager on or about 1-8-1989 and his services were terminated on 24-11-1991. The workman allegedly completed 240 days’ of continuous work in a period of twelve months preceding the order of termination. The ratio of the Apex Court judgment cannot be disputed. In the case at hand, as is clear from the order passed by this Court on 5-9-2005, the 8 petitioner-workman had worked only for a period of about 39 days in all. Apart from above, it is pertinent to mention that the Division Bench of this Court in its order dated 21-11-2005 while dismissing the Special Appeal preferred by the petitioner, has observed that “apart from this the view expressed in Sapan Kumar Pandit’s case AIR 2001 S.C. 2562 the apex court has expressed the view that the expression “at any time” does not stretch time to endless period to get the reference made. The view in Sapan Kumar Pandit’s case is a later one, and being latest is more binding on this Court. Not only this, in Nedungadi Bank Ltd. Vs. K.P.Madhavankutty 2000 S.C.C. (L&S) 283, the apex court has held that the dispute which is stale could not be the subject matter of reference under the Industrial Dispute Act.” The petitioner never chose to challenge the order dated 21-11-2005 before the Apex Court and the petitioner did not even seek review of the order. The Division Bench has already opined “If the party to dispute has failed to keep the dispute alive for unreasonable long period without reasonable explanation, it cannot be said that the dispute remained existed.” In view of clear cut finding recorded by the Division Bench of this Court that no industrial dispute remained existed, the orders impugned passed by the authorities below do not call for interference by this Court in the present writ petition. For the reasons and discussion aforesaid, the writ petition is devoid of merit and is liable to be dismissed outright. The writ petition is dismissed. Costs easy. ( B.S.Verma, J. ) RCP 9 10