1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.570 of 2008 Narayan S/o Mahadeorao Chavan, Aged about Major, Occupation : Nil, R/o : At Post Shelodi, Tah. Darwha, Distt. Yavatmal. ... Petitioner Versus 1. The Executive Engineer, Minor Irrigation, Zilla Parishad, Wardha. 2. The Sub-Divisional Engineer, Zilla Parishad Minor Irrigation, Sub-Division, Wardha. 3. Deleted as per Hon'ble Court's Order dated 7-4-2008. ... Respondents Shri A.S. Deshpande, Advocate for Petitioner. Shri P.D. Meghe, Advocate for Respondent Nos.1 and 2. CORAM : R.C. Chavan, J. DATE : 29th July, 2008 Oral Order : 1. The petitioner-workman takes exception to the award 2 dated 21-8-2007 in Reference I.D.A. No.45 of 1998 by the Presiding Officer, Labour Court, Wardha, whereby the learned Presiding Officer answered the reference in negative, disentitling the petitioner to any relief. 2. It cannot be disputed that the petitioner claimed to have served the respondent-Irrigation Department till 27-9-1988 in various short-spells. His services were terminated by the end of September, 1988. For the first time on 16-1-1997, he served the respondent with approach notice indicating that he would have to approach the appropriate authority if he was not re-employed. Thereafter, he filed an application before the Labour Officer in February, 1997 for initiating conciliation. Since the conciliation failed, the appropriate authority, i.e. the Government of Maharashtra, made a reference to the Labour Court, which was answered by the Labour Court in negative on the ground that the petitioner had failed to explain inordinate delay of 9 years for initiating proceedings after his employment came to an end. 3. I have heard Shri A.S. Deshpande, learned counsel for the petitioner, and Shri P.D. Meghe, learned counsel for the respondents. 4. According to the learned counsel for the petitioner, the learned Presiding Officer of the Labour Court could not have answered the reference in negative on the sole ground that the petitioner had not approached the appropriate authority promptly. He submitted that the delay could not defeat the petitioner's right to adjudication. According to him, the delay would at worst have enabled the Court to mould the relief, and not to deny the petitioner of his right to adjudication. For this purpose, he placed reliance on a number of authorities. 3 5. In Sapan Kumar Pandit v. U.P. State Electricity Board and others, reported at (2001) 6 SCC 222, the services of the employee were terminated on 17-7-1975 and a reference was made by the State Government on 29-3-1993. A petition was filed before the High Court for quashing the reference, and the High Court took the view that the delay is so inordinate that the dispute has ceased to exist by efflux of time and, therefore, quashed the reference. In this context, the Apex Court observed that it was not the case that the appellant woke up at the end of 15 years. It was pointed out that the disputed was raised by the Union on 16-9-1976, i.e. after about an year of the termination of the workman. The claims of 10 workmen were considered by the Labour Court and the appellant therein was assured by the Board that same benefit would be extended to the appellant. In this context, the Apex Court observed that when the dispute remained alive, though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. The Apex Court also held that there are cases in which lapse of time had caused fading or even eclipse of the dispute, and that 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. Such is not the present case. There is no whisper in the approach notice or even in the claim statement of the petitioner as to why he had not approached the appropriate authority soon after his termination. 6. In Director, Food and Supplies, Punjab & Anr. v. Gurmit Singh, reported at 2007 ALL SCR 2229, on which the learned counsel for the petitioner placed reliance, the claim was made 9 years after the termination on 24-8-1986. The Labour Court had not recorded any finding on the plea of 4 the employer that the claim was made belatedly. Since the High Court dismissed the employer's petition, the employer was before the Apex Court. While allowing the appeal by the employer, the Apex Court observed that if the employer makes a grievance that the workman has made a stale claim then an employer can challenge the reference by way of a writ petition and contend that since the claim is belated there was no industrial dispute, but the Tribunal or the Labour Court can not strike down the reference on this ground. The learned counsel for the petitioner, therefore, submitted that it was not open to the learned Presiding Officer of the Labour Court to return a negative finding on the reference on the ground of delay and that authority is vested only in the High Court. Such does not appear to be the import of this judgment. Though the Apex Court observed that the long delay for making the adjudication could be considered by the Adjudicating Authority while moulding the reliefs, it also held that there are cases in which lapse of time had caused fading or even eclipse of the dispute and 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. Therefore, even this judgment is of no help. 7. In Ajaib Singh v. The Sirhind Co-operative Marketing-cum- Processing Service Society Ltd. and another, reported at AIR 1999 SC 1351, the services of workman were terminated on 16-7-1974 and he had issued a notice of demand only on 8-12-1981. But in that case, the Management had not taken any plea regarding delay. Such is not the present case. As observed by the Apex Court in para 10 of its judgment, the plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. In this case, since the employer raised the plea of delay, the Reference Court has 5 entertained the same plea and ruled upon it. 8. In Shahaji v. Executive Engineer, P.W.D., reported at 2005-III-L.L.J.522, the Apex Court held that even if there was delay in making the reference, the Labour Court could have moulded the relief suitably. In that case, the Labour Court did not entertain the dispute on the ground that there was delay in making the reference and, therefore, the reference was stale and not tenable in law. The Aurangabad Bench of this Court upheld this order. In this context, the above observations came. The Apex Court allowed the appeal and remitted the matter back to the Labour Court for a fresh decision in the matter. 9. In State of Maharashtra v. S.G. Syyed, reported in 2003-I-LLJ 491, after considering a number of judgments, a Bench of this Court has ruled that no reference to the Labour Court can be generally questioned on the ground of delay alone, and that even in a case where delay is shown to be existing, the Labour Court can mould the relief appropriately. It may, however, be seen that this case does not give rise to the ratio that delay cannot at all be set up as a ground for deciding the reference. 10. The learned counsel for the respondent-employer has placed reliance on the following judgments of the Apex Court. Relying on a judgment of the Apex Court in U.P. State Road Transport Corpn v. Babu Ram, reported at (2006) 5 SCC 433, the learned counsel submitted that delay in itself may not be a ground for rejection of the reference if it is appropriately explained. In that case, one of the contentions raised before the Labour Court was that reference was based on a belated claim. There was no specific finding recorded by the Labour Court in that regard. Before 6 the High Court, the employer pointed out that the workman had not offered any explanation for the belated claim raised after 15 years. It was submitted on behalf of the workman that the delay had been condoned by the Assistant Commissioner presumably while making reference and, therefore, there was no question of delay. In this context, the Apex Court observed that no fixed formula of universal application could be laid down and it would depend on facts of each case. Quoting with approval the observations in Nedungadi Bank Ltd. v. K.P. Madhavankutty, reported at (2000) 2 SCC 455, the Apex Court held that the workman had not placed any material to show that he had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It observed that it was for the workman to show that the dispute was raised within the reasonable time and that he was not responsible for delay. The Apex Court held that neither the Labour Court nor the High Court had noted the factual finding and that the conclusion was based on surmises and conjectures. The matter was, therefore, remitted back to the High Court to consider the question afresh. 11. In Chief Engineer, Ranjit Sagar Dam and another v. Sham Lal, reported at (2006) 9 SCC 124, in the context of reference made after about 9 years of termination after taking a review of several previous decisions, the Apex Court reiterated that there could be no fixed formula of universal application in this matter and each case would have to be decided on its own facts. It set aside the judgment of the High Court and held in favour of the employer. 12. In Asstt. Engineer, CAD, Kota v. Dhan Kunwar, reported at (2006) 5 SCC 481, where the Labour Court had answered the reference in 7 favour of the workman and the High Court had affirmed the said award. The Apex Court held that the Labour Court should not have granted the relief. Quoting with approval the observations in S.M. Nilajkar v. Telecom District Manager, reported in (2003) 4 SCC 27, the Court held 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. 13. In Haryana Land Reclamation and Development Corporation Ltd. v. Nirmal Kumar, reported in 2008(3) Mh.L.J. 49, the Apex Court was considering the question of retrenchment of the workman on 18-7-1991. A claim was made in the year 1997 and the reference was made in the same year to the Labour Court. The Apex Court recorded that there could be no fixed formula of universal application. This judgment also could not be an authority for the proposition that the workman could merrily approach the authority at his will without even bothering to explain the delay. 14. It was lastly contended by the learned counsel for the petitioner that once a reference is made, it was obligatory for the Presiding Officer of the Labour Court to answer the reference without going into the technicalities, like delay. He placed reliance on the judgment of Division Bench of this Court in Gulf Oil Corporation Ltd., Mumbai v. Union of India and others, reported at 2008(2) Mh.L.J. 625. 15. I have carefully gone through the judgment, but it does not clear as to how it could be an authority for the proposition that a Reference Court was not entitled to consider the question of delay. Had there been some explanation in the approach notice or the claim statement, the petitioner 8 would have been entitled to say that the Reference Court should have entertained the reference and should have moulded the relief considering the delay. Here, the petitioner does not give any reason for his silence for a long period. Therefore, it would not be permissible to upset the findings of the learned Presiding Officer of the Labour Court in exercise of the writ jurisdiction under Article 226 or 227 of the Constitution. The view taken by the learned Presiding Officer is a common-sense view of the matter and in tune with several judgments of the Apex Court, which have been referred to above. 16. The petition is, therefore, dismissed. JUDGE Lanjewar