IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 5961 of 1999 Between: The Sub.Divisional Officer, Telecommunications, Mahaboobnagar - 509001 ..... PETITIONER AND 1 Sri K.Venkataramana, S/o D.K.Elaiah, 1-7-1573A, Hanuman Nagar, Mahaboobnagar - 509001 2 Pesiding Officer, Industrial Tribunal II, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, or order or directions more particularly one in the nature of mandamus and to declare the Award dt.25-9-98 of the Industrial Tribunal II, Hyd. in I.D No.22/98 on the file of the Industrial-II, Hyd. as being illegal, null and void and pass such other order or orders as this Hon'ble Court may deem fit and proper in the cidrcumstances of the case. Counsel for the Petitioner:MR.R.S.MURTHY Counsel for the Respondent No.: MR.L.PRABHAKAR REDDY The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 5961 OF 1999 ORDER: Aggrieved by the award of the Industrial Tribunal II, Hyderabad, in I.D.No.22 of 1998 dated 25.09.1998, the Sub-Divisional Officer, Telecommunications, Mahaboobnagar has invoked the jurisdiction of this Court. In exercise of its powers under Section 10(1)(d), and 10(2A) of the Industrial Disputes Act, the Government of India, by its order dated 23.02.1993, referred the following dispute for adjudication by the Industrial Tribunal II, Hyderabad: “Whether the action of the Sub-Divisional Officer, Telecom, Mahaboobnagar in terminating the services of Shri K.Venkataramana, Ex-casual Mazdoor w.e.f. 2.4.1983 is legal and justified? If not, what relief he is entitled to? Before the Tribunal, the 1st respondent workman contended that he had joined the petitioner herein as a casual mazdoor on 1.2.1982, that he was in continuous service till 1.4.1993 on which date his services were illegally terminated, that he worked for 320 days in a year from 1.2.1982 to 1.4.1983 and that his termination was in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act. The 1st respondent contended that, when his services were terminated, the petitioner had not put him on notice nor was he paid one month’s wages or compensation whereas several persons juniors to him were continued in service. In his counter, filed before the Tribunal, the petitioner herein contended that no written order was issued to the 1st respondent when he joined as a casual mazdoor and as such issuing a termination order did not arise, that it was false to state that the 1st respondent worked for 320 days from 1.2.1982 to 1.4.1983, that he had worked only for 122 days, that too with frequent breaks in his work from 8.2.1982 to 12.12.1982, that the department was granting seniority to casual mazdoors depending upon the physical working days put in by each individual, that the date of joining was immaterial, that the 1st respondent had gainfully employed himself in other profitable avocations all these 15 years, that the petitioner had drastically reduced its man power requirements, that there was surplus man power and that engagement of additional casual labour would place a needless burden on the department. The 1st respondent examined himself as W.W.1. On behalf of the petitioner herein one Sri M.V.Prasada Rao was examined as M.W.1. While the 1st respondent marked Exs.W.1 to W.5 as exhibits, the petitioner herein did not let in any documentary evidence. The Tribunal held that the burden of proof, that Section 25-F was applicable to his case, lay on the 1st respondent workman, that the 1st respondent had deposed that he was appointed as a casual labourer on 1.2.1982 and was continued upto 1.4.1983 in Gadwal and Mahaboobnagar sub- divisions, that his services were terminated without notice, that after termination he had approached the S.D.O.T to take him into service, that Ex.W.1 was a copy of the representation given to the sub-divisional Officer, Mahaboobnagar, that Ex.W.2 was the day book which showed that he was in continuous service, that Ex.W.3 was the list of employees which showed that several employees juniors to him were continued, that Ex.W.4 was the representation given to the S.D.O.T. and the Labour Officer and that Ex.W.5 was the minutes of the conciliation proceedings before the Assistant Commissioner of Labour. The Tribunal noted that M.W.1 had deposed that the 1st respondent had worked as a casual labourer from 8.2.1982 at the S.D.O.T office, that he was paid Rs.5 to 6 per day, that he worked with breaks upto 12.12.1982, that Ex.W.2 was the day book maintained by the 1st respondent, that it was not signed by the supervising officer or any other officer, that the 1st respondent had not reported for duty from 13.12.1982 onwards and that he had worked only for 122 days. The Tribunal held that Ex.W.1 disclosed that the 1st respondent was continuously working in the petitioner’s office till his services were terminated, that as per the evidence of W.W.1 it was evident that the 1st respondent had worked as a casual labourer in the office of the petitioner from 1.2.1982 till 1.4.1983 and that he had worked for 259 days during the said period. The Tribunal also held that no records were filed by the petitioner herein and that M.W.1 had clarified that Ex.W.2 was the day book maintained by the petitioner wherein the line-man and the Sub-inspector of the Telephone Department used to sign. The Tribunal further held that, even after the services of the 1st respondent was terminated, the petitioner had engaged several casual labourers, juniors to the petitioner, who were still continuing in service and that terminating the services of the 1st respondent was illegal. The Tribunal held that the 1st respondent had worked for 240 days and, while his services were terminated, his juniors were continued in service which was in violation of Section 25-F of the Industrial Disputes Act and that the principle of ‘last come first go’ had to be applied. The Tribunal noted the petitioner’s contention that there was delay in raising the industrial dispute, that the 1st respondent had not explained the delay in raising the dispute and as such he was not entitled to his claim. The Tribunal held that, in the present case, the 1st respondent had given a representation to the Assistant Commissioner of Labour based on which conciliation proceedings were initiated and, since the management did not agree, the 1st respondent had raised a dispute and that he had properly explained the delay in approaching the Court. The Tribunal also held that the petitioner had not produced any records, that even though the 1st respondent had filed I.A.No.89 of 1998 to cause production of the original documents showing the names of candidates and the date on which they were appointed as casual mazdoors in Mahaboobnagar District, the petitioner had not produced the said record and that, because of non-production of the records, an adverse inference could be drawn against the petitioner. The Tribunal held that, as against the plea of the 1st respondent that his juniors were continuing in service and that the petitioner had engaged casual mazdoors after termination of his services, there was no rebuttal evidence on the part of the petitioner. Holding that the 1st respondent was terminated without notice, compensation or notice pay, the Tribunal observed that such termination was illegal and in violation of Section 25-F of the Industrial Disputes Act. The Tribunal also observed that, while the services of the respondent-workman were not re-engaged, several other casual labourers were engaged and continued in service. While directing reinstatement of the 1st respondent into service, the Tribunal directed that his service be treated as continuous but that he was not entitled for back wages. Before this Court Sri R.S.Murthy, Learned Counsel for the petitioner, would contend that the 1st respondent had worked in two establishments i.e., Gadwal and Mahaboobnagar sub-divisions and that service in two establishments could not be clubbed together for reckoning continuous service under Section 25-B of the Act. Learned counsel would submit that the inordinate delay on the part of the 1st respondent in raising the industrial dispute from the date when his services were terminated till the Government referred the dispute for adjudication on 23.2.1993, ie. for nearly a decade, would disentitle him from being granted any relief in the Writ Petition. Learned Counsel would point out that, while the 1st respondent had worked from February, 1982 till December, 1982 i.e., 12.12.1982, the Tribunal had erroneously examined whether the 1st respondent had put in more than 240 days from 2.4.1982 till 1.4.1983. Learned counsel would submit that, as the services of the 1st respondent were admittedly disengaged from 13.12.1982 onwards, the very question referred to the Tribunal, whether termination of the services of the 1st respondent from 2.4.1983 was legal and justified, was itself based on an erroneous premise and that the Tribunal, on the basis of such an invalid reference, could not have examined whether the services of the 1st respondent had been rightly terminated on 13.12.1982 or not. According to the Learned Counsel, the only option left to the Tribunal was to hold that the reference could not be answered since termination of the services of the 1st respondent workman was not from 2.4.1983, but on 13.12.1982. Learned counsel would place reliance on Haryana Urban Development Authority v. Om Pal; D.G.M, Oil and Natural Gas Corporation Ltd v. Ilias Abdulrehman and The Nedungadi Bank Ltd v. K.P.Madhavankutty. Sri L.Prabhakara Reddy, Learned Counsel for the respondent-workman, would contend that neither did the petitioner plead nor did they adduce any evidence before the Tribunal that the Sub-divisions of Mahabubnagar and Gadwal were two separate and distinct establishments having different cadre strengths of workmen and, therefore, this contention not even raised before the Tribunal could not be permitted to be raised for the first time in certiorari proceedings under Article 226 of the Constitution of India. On the question of delay and latches, learned Counsel would submit that the dispute was referred soon after conciliation proceedings failed, that delay would not validate an illegal order and that the Tribunal could appropriately mould the relief taking into consideration the delay, if any, in raising the dispute. Learned Counsel would submit that, since M.W.1 had admitted that the respondent-workman did not work from 13.12.1982 onwards and as Ex.W.2 day book clearly showed that the he had worked for 259 days during the period from February, 1982 to December, 1982, the mere fact that the order of reference had noted that the respondent- workman’s services were terminated with effect from 02.04.1983 was of no consequence. Learned Counsel would submit that this was merely an incidental question and that the Tribunal was justified in entertaining the dispute and adjudicating the same on merits. Learned Counsel would point out, that even under Section 2-A(2), the workman could directly approach the Labour Court, questioning his termination from service, without having to go through the process of conciliation and the Government having to make a reference. The first question which necessitates examination is whether Mahaboobnagar and Gadwal sub-divisions are two separate and distinct establishments requiring the services rendered by the respondent-workman being treated separately and not to be clubbed together. In Ilias Abdulrehman2, the workman had pleaded before the Industrial Tribunal that he had worked in the department of geophysics at Baroda and Mehsana and also in the chemistry department as a daily wage employee, that while his appointment was intermittent in nature he had worked continuously for a period of 240 days in a given year and, hence, his non-employment was contrary to Section 25-F of the Industrial Disputes Act. The Corporation, however, pleaded that the respondent was merely a water supplier contractor and that he had never been appointed in its service. The Industrial Tribunal held that, according to the respondent workman himself, he had worked in different units under different administrations of the appellant-corporation at Baroda and Mehsana projects, that these units could not be considered as a single unit or a department under the appellant Corporation and hence the days put in by the workman in different units could not be counted for the purpose of determining whether the workman had worked for 240 days continuously for the purpose of Section 25-F of the I.D. Act. The Learned Single Judge of the Gujarat High Court, however, held that the services of the petitioner under several sections or departments in the same industry had to be counted as under the same employer and, in view of non-compliance of the provisions of Section 25-F, his termination was illegal. The order of the Learned Single Judge was confirmed in appeal by the Division Bench of the Gujarat High Court. When the matter was further carried in appeal, the Supreme Court observed: “………A perusal of the evidence adduced by the workman himself shows that he went in search of employment to different places and whenever there was temporary employment available in different Departments of the appellant -Corporation; be it the field work or the work in the Chemistry Department, he accepted the employment and worked in these departments not in one place alone but at different places like Baroda and Mehsana. It has come on record that the Management did try to accommodate the appellant in a permanent job but could not do so because of lack of qualification. In such circumstances we think the industrial Tribunal was justified in coming to the conclusion that the number of days of work put in by the respondent in broken periods, cannot be taken as a continuous employment for the purpose of section 25F of the Act, as has been held by this Court in the case of Indian Cable Co. Ltd. (supra ). We are aware that the judgment of this Court in Indian Cable Co. Ltd. (supra) was rendered in the context of section 25 G of the Act, still we are of the opinion that the law for the purpose of counting the days of work in different Departments controlled by an apex Corporation will be governed by the principles laid down in the judgment of Indian Cable Co. Ltd. (supra) and the Industrial Tribunal was justified in dismissing the Reference……..” (emphasis supplied). In Om Pal1, the respondent was appointed as a daily wager. While he worked for 145 days in the Panipat Sub-division, he worked for 90 days in Sub-division No.3 before his services were terminated. On the dispute being referred for its adjudication, the Industrial Tribunal held that the services of the respondent workman, in both these sub-divisions, should be counted for the purposes of Section 25-F read with Section 25-B of the Industrial Disputes Act. The Tribunal directed reinstatement of the respondent workman with continuity of service and full back wages. The writ petition filed thereagainst came to be dismissed. When the matter was carried in appeal the Supreme Court, while noting that it was not in dispute that the two sub-divisions constituted two different establishments and the mere fact that there was one controlling authority did not mean that the establishments were not separate, observed: “……The respondent did not produce his offers of appointment before the Industrial Tribunal-cum-Labour Court. If offers of appointment had been issued in his favour by the two sub-divisions separately, the same ipso facto would lead to the conclusion that they were separate and distinct. If his appointment was only on the basis of entry in the muster roll(s), the designation of the authority who was authorised to appoint him as a daily wager would be the determinative factor. It is not the case of the respondent that he was appointed in both the establishments by the same authority. The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. If both the establishments are treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act, as was held by the Tribunal, a person working at different points of time in different establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act. Thus, once two establishments are held to be separate and distinct having different cadre strength of the workmen, if any, we are of the opinion that the period during which the workman was working in one establishment would not enure to his benefit when he was recruited separately in another establishment, particularly when he was not transferred from one sub-division to the other……” (emphasis supplied) The Supreme Court modified the order, of reinstatement with full back wages, to that of payment of compensation of Rs.25,000/- to the workman. In the case on hand, the petitioner has not even averred in their counter before the Tribunal that the sub-divisions at Mahabubnagar and Gadwal were separate establishments. It is on the basis of what was deposed by the respondent - workman that such a contention has been raised for the first time before this Court. Ex.W.2 is the day book which shows that the petitioner worked continuously during the period from February, 1982 till 12.12.1982 i.e, for a period of 259 days. There is no separate day book for Gadwal and Mahaboobnagar Sub-Divisions. Except for a stray statement, in the evidence of the respondent workman, there is no other material on record to show that the sub-divisions of Mahaboobnagar and Gadwal were separate and distinct establishments having different cadre strength of workmen. It must also to be noted that the Industrial Tribunal has not gone into this question. It is only if the petitioner had put this aspect in issue, and had raised a specific plea in its counter, would the Tribunal have been required to examine this contention. No plea much less any evidence has been adduced in this regard by the petitioner herein. (Shankar Chakravarty v. Britannia Biscuits) This Court, while exercising its Certiorari jurisdiction under Article 226 of the Constitution of India, would not, ordinarily, examine questions of fact raised for the first time before it nor would it substitute its conclusions for that of the Industrial Tribunal. A contention not raised before the Industrial Tribunal would not, ordinarily, be the subject matter of enquiry in certiorari proceedings under Article 226 of the Constitution of India. The contention raised by the petitioner herein regarding Mahaboobnagar and Gadwal Sub-divisions being separate and distinct establishments must, therefore, fail. On the question of delay, it is well settled 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 disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed. (Shalimar Works Ltd. v. Workmen, S.M. Nilajkar v. Telecom District Manager) . The power, under Section 10 of the Act, cannot be exercised at any point of time and matters, which have long since been settled, cannot be revived. A dispute which is stale cannot 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 would be incongruous that a reference is made under Section 10 of the Act. (K.P.Madhavankutty3). 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 the adjudication, being lost and rendered not available. (Ratan Chandra Sammanta v. Union of India; S.M. Nilajkar6). In so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on the facts of each individual case. (Chief Engineer, Ranjit Sagar Dam v. Sham Lal; Asstt. Engineer, CAD v. Dhan Kunwar; Haryana Land Reclamation and Development Corpn. Ltd. v. Nirmal Kumar). Even if there is a delay in making the reference, if the Labour Court comes to the conclusion that the termination is illegal, it can suitably mould the relief to be granted to the workman in view of the delay. In such cases the award of back wages may either be not permitted or curtailed. (Ajaib Singh v. Sirhind Coop. Marketing- cum-Processing Service Society, Shahaji v. Executive Engineer, PWD). In the present case, the Industrial Tribunal has observed that, since the 1st respondent had submitted a representation to the Assistant Commissioner of Labour based on which conciliation proceedings were initiated and, as the management did not agree to the reconciliation, a reference was made by the Government. While this may possibly be an explanation for the delay subsequent to initiation of conciliation proceedings, it would not amount to reasonable cause being shown for the delay from the date of termination till the date of submission of a representation to the conciliation officer. It needs no reiteration that mere submission of representation, or for that matter repeated representations, cannot be a justification for the inordinate delay or laches on the part of the workman in raising an industrial dispute. While the award of the tribunal may have necessitated its being quashed on this ground, it cannot be lost sight of that the tribunal has not even examined the nature and extent of delay prior to initiation of conciliation proceedings. It must also be borne in mind that the Tribunal has the power to examine the question of delay and mould the relief accordingly. Every case of a stale claim, or a belated raising of an industrial dispute, would not by itself necessitate complete denial of the relief sought for by the workman. On the facts and circumstances of each case, the Industrial Tribunal can examine whether delay by itself would disentitle the workman to the relief claimed or whether the relief can be, appropriately, moulded. On the question whether the Industrial Tribunal had exceeded its jurisdiction, and had decided a question not even referred to it, it must be noted that, while the Tribunal cannot travel beyond the scope of the reference, it can examine questions incidental to the reference. The Industrial Tribunal is a creature of a statute and it gets jurisdiction on the basis of the reference. It cannot go into the question regarding the validity of the reference. (National Engineering Industries Ltd. v. State of Rajasthan). Its jurisdiction is limited and restricted only to the issues referred to it by the appropriate Government by the order of reference. (R.S. Ramdayal Ghasiram Oil Mills v. Labour Appellate Tribunal; West Bengal Press Workers and Employees Union v. Eighth Industrial Tribunal). The Tribunal would have no right to travel outside the reference, and proceed to adjudicate matters not referred to it. (Gouri Sankar Chatterjee v. Texmaco Limited; Workmen of British India Corporation Limited v. British India Corporation Ltd.; Delhi Cloth and General Mills Company Limited Vs. Its Workmen , Jaipur Udyog Limited Vs. The Cement Work Karmachari Sangh, Sahu Nagar, Firestone Tyre and Rubber Company of India Private Limited v. Workmen). Where in an order, referring an industrial dispute to a Tribunal under Section 10 (1) of the Act, the 'appropriate Government' has specified the points of dispute for adjudication, the Tribunal should confine its adjudication to those points and matters incidental thereto. The Tribunal is not free to enlarge the scope of the dispute referred to it. (Jhagrakhand Collieries (P) Limited Vs. Central Government Industrial Tribunal). The word 'incidental’, in