1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5475/1996 ------------------------------------------ The Executive Engineer M.I.(South) Division, Z.P.Ahmednagar. .. PETITONER VERSUS Shri Sayyad Abdul Raheman Umar and another. .. RESPONDENTS .... Shri S.T.Shelke,Adv.for petitioner Smt.A.N.Ansari,Adv. , for respondent no.1. .... CORAM : R.K.DESHPANDE,J. JUDGMENT RESERVED ON :09/11/2009 JUDGMENT PRONOUNCED ON:16/11/2009 JUDGMENT : 1] This petition challenges final award dated 28/6/96 passed in Reference (IDA) No.138/92, by the learned Presiding Officer, IInd Labour Court, Ahmednagar, partly allowing the reference and directing reinstatement of the second party i.e. respondent herein, in service without any backwages but with continuity in employment. The facts 2 leading to the case are as under : 2] In the statement of claim dated 21/12/1992, filed by the respondent, it was alleged that the respondent was appointed as mustering clerk in the year 1978 and he worked upto 1982. Thereafter, it was further alleged that he worked in the year 1978, for 136 days, in the years 1979,1980 and 1981 for 240 days per year and 136 days for the year 1982. The respondent was posted to Mirajgaon, Kopargaon but was not given any job and was orally informed that the second party/workman could report for duties after getting necessary orders but unfortunately, no such written orders were received. The respondent thereafter sent notice on 12/8/1991, demanding appointment, but no action was taken and therefore, sought appointment. The statement of claim was filed on 21/12/92, alleging that the termination was illegal and in violation of the provisions of Section 25-F of the Industrial Disputes Act and therefor, he should be given reinstatement, backwages with continuity in service. 3] The petitioner Zilla Parishad opposed the said claim by filing written statement. It was denied that the respondent had completed 240 days continuous service in the employment. It was further denied 3 that any order of appointment was issued posting respondent in Mirajgaon and Kopargaon, as alleged. It was the stand taken that the respondent was appointed as Writing Mukadam and as per the work available with the petitioner, his services were terminated at each time as per appointment order i.e. after completion of the work. It was further the stand taken that the work allotted to the second party was temporary and as and when the work was available, specific orders were issued, which formed the contract of service. That after lapse of the period of appointment stipulated in the order of appointment, his services were terminated. It was further the stand that the reference was not filed within reasonable period and hence was it was liable to be dismissed on the ground of delay. 4] The learned Presiding Officer of the Iind Labour Court at Ahmednagar, partly allowed the Reference by his judgment and order dated 28/8/1996, granting reinstatement with continuity in service but rejecting the claim for backwages. On the question of limitation/delay, the learned Presiding Officer adopted sympathetic view and relying upon the judgment of the Punjab and Haryana High Court, reported in 1996 I CLR 520, Balwant Singh Vs. Labour Court and others held, that at the most the relief of backwages can be refused. So far as the 4 question of retrenchment was concerned, the learned Presiding Officer did not consider this question u/s 2(oo)(bb) of the said Act but held on the basis of order of appointment and letter at Exh.U-15, that the workman had completed more than 240 days continuous service. It was held that the provisions of Section 25-F were not complied with and hence the termination was set aside, granting reinstatement with continuity in service. However, the backwages were not granted. 5] Shri Shelke, learned counsel for the petitioner has urged that the services of the respondent were terminated on 15/1/1982, the demand for Reference was made on 12/8/91 i.e. after lapse of 9 years and 9 months, which cannot be said to be a reasonable period. According to him, because of lapse of time, so called industrial dispute ceased to exist and therefore, the Reference was required to be rejected on this sole ground. For this purpose, he relied upon the decision of the Apex Court reported in : (1)AIR 2000 S.C.839 The Nedungadi Bank Ltd. V/s K.P.Madhavankutty and others. (2) 2006 AIR S.C.W. 3574 Chief Engineer, Ranjit Sagar Dam and another V/s Sham Lal. 5 (3)2006 AIR S.C.W. 3571 Assistant Engineer, C.A.D.Kota V/s Dhan Kunwar. Shri Shelke, learned counsel further urged that it was not the case of retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947. According to him, the instant case was within the exception as provided under Section 2(oo) (bb) of the said Act i.e. it was the case of termination of service as a result of non-renewal of contract of employment, on expiry of fixed term and also the termination of service under a stipulation contained in the order of appointment. In order to substantiate his contention, he has relied upon several orders of appointments, issued from time to time. The first order being dated 20/5/1978 and the last order being dated 13/7/1981. He further relied upon the decisions of the Apex Court reported in [1] AIR 1996 S.C. 1001 State of Rajastan V/s Rameshwarlal Gahlot. [2] 2006 AIR S.C.W. 3589 Kishore Chandra Samal V/s Divisional Manager,Orissa State Cashew Development Corporation Ltd. [3] 2005 AIR S.C.W. 3160 Rajasthan State Ganganagar S.Mills Ltd. V/s State of Rajasthan and another. 6] As against the aforesaid contentions, Mrs.Ansari, learned 6 counsel for the respondent employee has urged that there is no limitation prescribed for making reference and if at all there is any delay in making reference at the most, the employee would be disentitled to get the backwages and that is, what is done by the learned Presiding Officer of the Labour Court, in the instant case by refusing to grant backwages and she relied upon the decisions of the Apex Court reported in [1] [2003] 4 S.C.C. 27 S.M.Nilajkar and others V/s Telecom District Manager, Karnataka. [2] [2008] 1 Mh.L.J. 654 Jeroo Dastur V/s Union of India. [3] [2008] 3 Mh.L.J. 49 Haryana Land Reclamation V/s Nirmal Kumar. Mrs.Ansari further urged that there was no stand taken by the petitioner in the written statement that the services of the respondent were terminated on account of closure of work. This is not the reason even stated in the order of termination dated 15/1/1982. She further urged that the learned Presiding Officer of the Labour Court was right in relying upon Exh.U-15, which indicate his continuous employment from the year 1978 till 1982 and also by drawing an adverse inference 7 for non production of documents by employer. According to her, the evidence on record clearly established that the employee has completed 240 days continuous service in the employment and undisputedly there was non compliance of the provisions of Section 25-F of the said Act. Hence according to her, Labour Court was therefore, right in granting the reinstatement with continuity in services and refusing to grant backwages on the basis that the reference was delayed. 7] The Apex Court in its decision reported in AIR 2000 S.C. 839 The Nedungadi Bank Ltd. V/s. K.P.Madhavankutty and others, was dealing with the question of delay caused in making Reference under Section 10 of the said Act. The respondent was appointed as Clerk and after rendering 10 years of service, he was dismissed on 11/8/1972. After about 7 years i.e. on 14/7/1979, he submitted an application for Reference under Section 10 of the said Act. In para 6 of the said judgment, the Apex Court, dealing with the question of delay observed as under : “[6] Law does not prescribe any time limit for the appropriate Government to 8 exercise its powers under Section 10 of the Act. It is not that this power can be exerecised 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 lapse of about seven years of 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 9 would 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 industrial dispute was ex facie bad and incompetent.” 8] Thus, the Apex Court has held that there was no rational basis on which Central Government has exercised the power of making reference after lapse of about 7 years of the order dismissing the respondent from service. It was in view of the delay caused in making Reference that the Apex Court held that the dispute was stale and could not be the subject matter of Reference. It was held that in fact at the time of Reference, no industrial dispute existed or could be even said to have been apprehended. It was held that the demand by the respondent for presuming industrial dispute was ex-facie bad and 10 incompetent. In (2006) S.C.C.337 ONGC and another V/s Shyamlal Chandra Bhowmik, it was held that no universal formula can be laid down and it would depend upon facts of each case. 9] The Apex Court in the decision reported in 2006 AIR SCW 3574 was again dealing with question of delay of about 9 years to demand reference, the termination was effected on 13/11/1990, the demand for making reference was made on 15/12/1999. It was held that the employee had worked for more than 240 days and his termination, which was in breach of Section 25-F of the said Act, was bad. The workman was reinstated with full backwages in service. The High Court dismissed the writ petition, against which the S.L.P. was preferred. The Apex Court set aside the decision of the labour Court as well as that of the High Court. The Apex Court has held that the High Court had lost sight of the fact that the claim was highly belated. Shri Shelke, learned counsel for the petitioner also relied upon the decision of the Apex Court reported in 2006 AIR S.C.W. 3571 which was also a case dealing with the delay in making Reference. The delay was about 8 years. The Apex Court held that the labour Court should not have granted Reference. In 1993 Suppl.(4) S.C.C.67 Ratan Chandra V/s Union of India, it was held that delay would be fatal, if it 11 has resulted in material evidence relevant to adjudicate being lost or unavailable.Thus, this is one line of judgments holding that belated reference should not be entertained. 10] Now, the other line of judgments need to be considered. In (2003) 4 S.C.C. 27 S.M.Nilajjkar V/s Telecom District Manager, Karnataka, the employee was granted reinstatement with continuity in service plus 50% backwages. The learned Single Judge in Writ Petition confirmed the said order of reinstatement only but denied the backwages. The Division Bench in appeal set aside order of learned Single Judge on the ground that there was delay of 7 to 9 years in making reference. On facts, the Apex Court held that High Court was wrong in holding that there was delay of 7 to 9 years in raising the dispute and it was held that though there was some delay, it was not fatal in initiating the proceedings. The order of the learned Single Judge denying the backwages and maintaining reinstatement was confirmed. 11] The Division Bench of this Court in its judgment reported in (2008) 1 Mh.L.J. 654 Jeroo Dastur V/s Union of India was dealing with question of delay in making reference. The delay was from 2001 to 12 2003 and it was held that the said delay was not inordinate to dismiss the claim. 11] The Apex Court in the decision reported in (2008) 3 Mh.L.J. 49 Haryana Land Reclamation V/s Nirmalkumar, was dealing with the case of retrenchment made in the year 1991. The Reference was made in the year 1997. There was reinstatement plus backwages. The S.L.P. was dismissed without laying down any law. The judgment of the Apex Court in Nilajkar’s case was referred to. 13] Although, prima facie it may seem that there are two conflicting views, but in fact there is no conflict. From all the decisions, the principles which emerge are that no straight jacket formula can be laid down and it will depend upon facts and circumstances of each case, as to whether the reference need to be rejected on the ground of delay, in the absence of there being no limitation provided for it. The delay would be fatal if it has resulted in material evidence relevant to adjudication being lost or unavailable. The delay would also be fatal if there is change in the nature of work available with employer, as a result of which, the services of terminated employee cannot be availed; due to lapse of time. In one case the delay of four years has 13 been held to be fatal whereas in other case delay of about 7 years is not held to be fatal. At any rate, the decision cannot be on sympathetic view of the matter, as has been held by the industrial Court in the present case. The Court has to apply its mind to the facts and circumstances of the case to arrive at the decision, as to whether delay is fatal or not. However, it seems to have not been done in the present case. Hence the finding on this aspect by the Labour Court that the sympathetic view has to be taken, to condone the delay, cannot be sustained. The Labour Court committed an error in condoning delay without considering the relevant factors. 14] The next question which needs to be considered is regarding the retrenchment of an employee. In 2006 AIR S.C.W. 3589; Kishore Chandra Somal V/s Divisional Manager, Orissa State Cashew Development corporation Ltd., it was held that disengagement of employee after lapse of last order is not retrenchment. The appellant was appointed as Junior Typist on N.M.R. w.e.f. 12.7.1982 and from time to time he was allowed to continue for fixed period. He alleged that refusal of work beyond 11/8/1989 amounted to retrenchment. The claim was rejected. The Apex Court in its decision reported in AIR 1996 S.C.1001 State of Rajasthan V/s Rameshwarlal Gahlot has held 14 that it is for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or tribunal to come to the conclusion that he had worked for 240 days in a year. The Apex Court in its decision reported in (2001) 9 S.C.C.713 State of Gujrat V./s Pritamsing Narsingh Parmar has held that the appointment for a fixed period of covered by Clause (bb) of Section 2(oo) of the said Act and unless there is a finding that power under clause (bb) was used or exercised malafide, it cannot be said that the termination is illegal. 15] In the light of the aforesaid judgments of the Apex Court, what is required to be seen is that whether the termination in question amounts to retrenchment within the meaning of Section 2(oo) of the I.D.Act, 1947. The orders of appointment are placed on record. As pointed out earlier, the first order of appointment was dated 20/5/1978 containing the stipulation no.2 as under : “2. The appointment is purely temporary and his services are liable to be terminated at any time without notice and without assigning any reasons or immediately on closure of the work shown 15 against his name only for the period of six months which is earlier.” In clause no.6 of the said order of appointment, the employee was asked to furnish an undertaking, which is also reproduced below : “ I understand that by appointment under Zilla Parishad as Writing Mukadam is purely temporary and that my services may be dispensed with at any time without any notice and without any reasons being assigned or as soon as the work allotted to me is closed. I accept t he employment on this basis.” The aforesaid undertaking is undisputedly signed and furnished by the respondent-employee. Every time, the orders of appointment are issued to the employee and as pointed out earlier, the last order of appointment was dated 13/7/1981, which also contains the aforesaid two clauses. No doubt that the burden to establish that the case of the employee falls under Clause (bb) of Section 2(oo) is upon the employer. In the instant case, the same has been discharged. Shri Shelke, was right in contending that it was a case of non renewal of contract of employer, which automatically came to an end in terms of the stipulations stipulated in the orders of appointment. According to 16 him, the order of appointment clearly stipulated that it was clearly for stipulated period, on expiry of which, the contract was to come to an end. It is also not disputed that every time, the employee was being appointed on different works. The employee entered the witness box and he was cross examined. He has stated in clear terms that after 15/12/1982, there was no order of appointment issued to him. In view of this evidence being on record, it is thus clear that the case of the employee was within the exception under Clause (bb) of Section 2(oo) of the I.D. Act, 1947. Hence it was not a case of retrenchment from service. In view of this, the question of non compliance of Section 25- F of Industrial Disputes Act, 1947 does not arise. The respondent is out of employment and hence no question of reinstatement. 16] In the result, Petition is allowed. The judgment and order dated 28/6/1996 passed by IInd Labour Court, Ahmednagar in Reference (IDA) No.138/1992, is quashed and set aside. The reference is answered in negative. Rule made absolute in the above terms.No order as to costs. In view of disposal of Writ Petition, Civil Application No.7725/2008 stands dismissed. [R.K.DESHPANDE] JUDGE umg/wp5475-96 17