IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 889 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents WITH Writ Petition No. 880 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 885 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 886 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others Writ Petition No. 887 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 888 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 890 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 891 of 2008 (M/S) Divisional Marketing Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1091 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents 2 Writ Petition No. 1092 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1093 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1094 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1095 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1096 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1105 of 2008 (M/S) Divisional Sales Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 1106 of 2008 (M/S) Divisional Logging Manager ..……… Petitioner Versus State and others ……… Respondents Writ Petition No. 340 of 2008 (M/S) Divisional Marketing Manager & Ors. ..……… Petitioners Versus State and others ……… Respondents Writ Petition No. 1376 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Surendra Singh Bisht ……… Respondent Writ Petition No. 1377 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners 3 Versus Vinod Kumar Kandwal ……… Respondent Writ Petition No. 1378 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Nidhish Kumar ……… Respondent Writ Petition No. 1379 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Manohar Singh ……… Respondent Writ Petition No. 1380 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Tika Prasad Pokhroyal ……… Respondent Writ Petition No. 1390 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Veer Singh Rawat ……… Respondent Writ Petition No. 1391 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Narendra Singh ……… Respondent Writ Petition No. 1392 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Krishna Ballabh ……… Respondent Writ Petition No. 1393 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Tejpal Singh ……… Respondent Writ Petition No. 1394 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Hayat Singh Gusain ……… Respondent Writ Petition No. 1395 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Virendra Kumar ……… Respondent 4 Writ Petition No. 1396 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Bhupal Singh Rawat ……… Respondent Writ Petition No. 1397 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Kirti Mohan Badola ……… Respondent Writ Petition No. 1589 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Natthi Prasad Mamgain ……… Respondent Writ Petition No. 1590 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Braham Pal Singh Rana ……… Respondent Writ Petition No. 1591 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Ganga Ram Singh ……… Respondent Writ Petition No. 1592 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Mukul Ranjan Dixit ……… Respondent Writ Petition No. 1593 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Ami Chand ……… Respondent Writ Petition No. 1594 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Kuldeep Singh Bisht ……… Respondent Writ Petition No. 1595 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Gulab Singh Rawat ……… Respondent Writ Petition No. 1596 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners 5 Versus Ranjeet Singh ……… Respondent Writ Petition No. 1597 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Mahabeer Singh ……… Respondent Writ Petition No. 1598 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Kanchan Singh ……… Respondent Writ Petition No. 1610 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Rohitash Singh ……… Respondent Writ Petition No. 1645 of 2009 (M/S) M.D., U.K. Forest Devp. Corp. & Ors...……… Petitioners Versus Meharban Singh Negi ……… Respondent Writ Petition No. 1646 of 2009 (M/S) Divisional Marketing Manager ...……… Petitioner Versus Bahadur Singh ……… Respondent Writ Petition No. 1648 of 2009 (M/S) Managing Directors and others ...……… Petitioners Versus Devendra Singh ……… Respondent Writ Petition No. 1649 of 2009 (M/S) Regional Manager, U.K. Forest Devp. Corporation ...……… Petitioner Versus Rai Singh Negi ……… Respondent Hon’ble Tarun Agarwala, J. This group of petitions assails the validity and legality of the order passed by the Conciliation Officer whereby the application of the workman to condone the delay in referring the matter for conciliation of the dispute was allowed. In all this group of petitions, the impugned order is more or less the same, 6 though the wordings are slightly different and, in some of them, ex-parte orders have been passed against the petitioners. The facts leading to the filing of the writ petition is, that the predecessor of the petitioner, namely, the U.P. Forest Corporation, in the course of its usual business had engaged different kinds of workers either in a permanent capacity or on a daily rated basis or on a casual basis. The services of the workers involved in the present group of writ petitions were dispensed with mostly in the year 1995, but some of them were also dispensed with earlier in the years 1992 and 1993. The reason urged in the petitions is that the predecessor of the petitioners found the workers to be surplus and on account of decrease in the work load, a decision was taken to retrench the workers. It is alleged that junior most persons were retrenched after paying compensation as provided under the U.P. Industrial Disputes Act, 1947. Some of the workers, being aggrieved by the retrenchment, soon thereafter, raised an industrial dispute which was eventually referred for adjudication before the Labour Court. The Labour Court, after considering the matter, gave an award holding that the workers were not entitled for any relief and held that the retrenchment was valid. The Labour Court, accordingly, declined to grant any relief to the workers. The workers, being aggrieved by the said award, filed various writ petitions. The writ court allowed the writ petitions holding that the Corporation was required to adhere to the provision of retrenchment compensation and that the provision of Section 6-N was squarely applicable upon the daily rated workers employed by the Corporation. The High Court, accordingly, directed reinstatement of the workers with continuity of service and with backwages. 7 It may be stated here that during the pendency of the writ petitions, the State of Uttarakhand was formed and the petitioner, being the successor in interest, came into existence and, accordingly, the petitioners challenged the order of the writ court before the Supreme Court of India. In the meanwhile, certain workers, who were retrenched in the year 1995, also filed various writ petitions before the High Court questioning the veracity and legality of the retrenchment and dispensation of the service made by the Corporation in the year 1995. These writ petitions were allowed by various judgments of the High Court holding that the dispensation of the services of the workers was illegal and that the workers were liable to be reinstated. These judgments of the High Court were also challenged by the Corporation before the Supreme Court of India and, all these petitions were clubbed together and decided by the Supreme Court by a judgment dated 12/12/2006, namely, in the matter of Uttaranchal Forest Development Corporation and another Vs. Jabar Singh and others (2007) 2 SCC 112. The Supreme Court held that the workers who had filed the writ petition directly before the High Court were not entitled for any relief and that they should have availed an alternative remedy by raising an industrial dispute under the Industrial Law. The Supreme Court observed that the High Court fell into error in entertaining the writ petition, since, there was no exceptional circumstances made out to entertain the writ petition. The Supreme Court further observed that the writ court should have dismissed the claim of the workers on the ground of laches since the workers did not get the dispute adjudicated by the Tribunal. The Supreme Court held that these workers who had approached the writ court directly were not entitled for reinstatement, backwages and continuity of service. The Supreme Court, however, upheld the claim of the workers who had raised an industrial dispute and who had come through 8 the process of Industrial Tribunal / Labour Court and held that the Corporation, being an industrial establishment, the provision of Section 6-N of the U.P. Industrial Disputes Act was attracted and, therefore, the order of the High Court directing reinstatement of the workers was justified. The Supreme Court observed the aforesaid findings in paragraph 43, 44, 45, 46 and 48 which are quoted hereunder:- “43. We are unable to countenance the above submission of Mr. Mehta and Mr. Sangal insofar as it relates to the non-maintainability of the writ petition and the delay and laches. It is not in dispute that the effective alternative remedy was not availed by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches. We have already referred to the decision of this Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr, (supra). This Court speaking through Arijit Pasyat, J. has held in categorical terms that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act unless exceptional circumstances are made out. 44. In the instant case, the workmen have not made out any exceptional circumstances to knock the door of the High Court straightaway without availing the effective alternative remedy available under the Industrial Disputes Act. But the dispute relates to enforcement of a right or obligation under the statute and a specific remedy is, therefore, provided under the statute the High Court should not deviate from the general view and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure. There are several decisions to the same effect. The respondents have not made out any strong case for making a departure. Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the writ petition. 9 45. We are, therefore, of the opinion that the writ petitioners (respondents herein) who have not invoked the jurisdiction of the Tribunal are not entitled to any relief in the writ petitions. They are not entitled for any benefits of reinstatement, back-wages and continuity of service. 46. On the other hand, the respondents in civil appeals arising out of special leave petitions as detailed infra who approached the Tribunal and the High Court are entitled for the relief of reinstatement, back-wages and continuity of service in view of our finding that the appellant-Corporation is an Industrial Establishment and that provisions of Section 25N of the Industrial Disputes Act are attracted. 48. For the foregoing reasons, we hold that the provisions of Section 25-N of the Industrial Disputes Act, 1947 are attracted and non-compliance of the said section makes retrenchment order illegal and non est. Against certain other orders passed by the High Court, the petitioner preferred SLP No.13975 of 2004 which was disposed of by the Supreme Court by an order dated 7th March, 2007 in terms of the earlier judgment dated 12/12/2006. The Supreme Court, however, observed that it would be open to the workman to approach the appropriate forum for any relief. The order of the Supreme Court dated 7th March, 2007 passed in the aforesaid SLP is quoted hereunder:- “Delay condoned. Heard both sides. Both sides agreed that S.L.P. (C) No.85561/2004 are covered by the judgment dated 12/12/2006 delivered by this Court in Uttaranchal Forest Development Corporation & Anr. Vs. Jabar Singh & Ors. Reported in 2006 (13) SCALE 556. We, therefore, dispose of the above two SLPs. in the light of the judgment dated 12/12/2006 (Supra), reported in 2006 (13) SCALE 556. However, the learned counsel for the workmen seeks permission to approach the Labour Court for redressal. It is upto the workmen to approach in 10 appropriate forum for any relief. These two SLPs. are disposed of accordingly. Post S.L.P. (C) No. 13975/2004 in usual course.” Pursuant to the aforesaid observations made by the Supreme Court, the workers whose claim was dis-allowed by the Supreme Court as well as several other workers who were watching the drama on the sideline, filed various applications before the Conciliation Officer praying for the settlement of their dispute with their employer. These applications were filed in the year 2007. For facility, the facts of writ petition No. 889 of 2008 (M/S) is being taken into consideration. Alongwith the said application, an application was also filed for condoning the delay in referring the matter for the settlement of the dispute. The ground urged in the said application was that the delay was not on account of any laches and that the delay was bonafide and genuine, in as much as, the employers had given an assurance to the workers for their re-engagement. It was further alleged that even otherwise, there is no time frame for raising the dispute and that it was open to the workers to raise a dispute at any moment of time. The petitioners filed their objections to the application for condonation of delay and submitted that no plausible explanation for the delay was given by the workers. Further, the application was not maintainable, in as much as the U.P. Forest Corporation, the predecessor of the petitioner, was not arrayed as a necessary party. The petitioners further contended that the petitioner had nothing to do with the engagement or with the dispensation of the services of the workers and that the grievance, if any, of the workers was against the U.P. Forest Corporation. 11 The Conciliation Officer, after considering the matter, held that as per the decision of the Supreme Court in the case of Sapan Kumar Pandit Vs. U.P. State Electricity Board and others, (2001) 6 SCC 222, there is no time frame for raising an industrial dispute and held that a reference cannot be set aside only on the ground of delay and, that as held by the Supreme Court, the delay in raising a dispute could only be a mitigating factor for moulding the relief for the parties. The Conciliation Officer, consequently, condoned the delay and directed the conciliation proceedings to be registered for conciliation. The petitioner, being aggrieved by the order of the Conciliation Officer condoning the delay, has preferred the writ petition. Heard Shri B.C. Pandey, the learned Senior Counsel duly assisted by Shri Shri Virendra Kaparwan for the petitioners, Shri Subhash Upadhyaya, the learned Brief Holder for the State Government and Shri Jitendra Chaudhary, Shri Vinay Kumar, holding brief of Shri M.S. Bist, Shri Shailendra Nauriyal, Shri B.S. Mehra, holding the brief of Shri M.C. Pant, Shri Devesh Bishnoi and Shri Mangal Singh Chauhan, the learned counsel appearing for various set of workers in various writ petitions. Shri B.C. Pandey, the learned Senior Counsel submitted that the application of the workman for the conciliation of the dispute was admittedly filed after more than 12 years and that no plausible explanation was given for the delay. Consequently, such old and stale dispute could not be raised and, since only existing or apprehended dispute could be referred under Rule 4 of the U.P. Industrial Disputes Rules, the discretion exercised by the Conciliation Officer in condoning the delay was not valid. The learned counsel further submitted that the judgment of the Supreme Court in the case of Sapan Kumar Pandit (Supra) was 12 wrongly relied upon and, that the said judgment has been distinguished by the Supreme Court itself in various judgments subsequently delivered. The learned counsel further submitted that there was no master and servant relationship between the petitioner and the workers and that the predecessor of the petitioner, namely, the U.P. Forest Corporation was a necessary party who was not arrayed as a party and, therefore, on account of non-joinder of a necessary party, no industrial dispute could be referred or raised nor could be settled in conciliation proceedings. The learned counsel, consequently, submitted that the order of the Conciliation Officer condoning the delay was wholly illegal and is liable to be quashed. In support of his submission, the learned counsel placed reliance upon various decisions which would be discussed hereinafter at the appropriate place. On the other hand, Shri Jitendra Chaudhary, the learned counsel for some of the workers held that even though the grounds for condoning the delay was not happily worded in the application, nonetheless, the workers had pursued the remedy in a writ jurisdiction under Article 226 of the Constitution of India which was allowed by the High Court, but, subsequently, reversed by the Supreme Court on the ground that the workers should have availed the alternate remedy of raising the dispute under the industrial law. The learned counsel submitted that the remedy pursued by the petitioner was done bonafidly and, after the dismissal of their claim by the Supreme Court on the ground of alternate remedy, the workers have approached the correct forum by raising an industrial dispute before the Conciliation Officer. The learned counsel submitted that the workers should not be non- suited on the ground of delay, since, an industrial dispute remains in existence. The learned counsel submitted that since a benefit has been provided by the High Court as well as by the Supreme 13 Court to certain sections of workers, the workers are also entitled for a similar relief. The learned counsel submitted that the petitioner is also entitled to the benefit of Section 14 of the Limitation Act, and that, the Conciliation Officer rightly exercised his discretion in condoning the delay and registering the case. The learned counsel placed reliance upon certain decisions which would be referred hereinafter. The rival parties have advanced their contention on the question whether old and stale dispute could be referred or not. The Supreme Court in a catena of cases, right from Shalimar Works Ltd. Vs. Workmen, AIR 1959 SC 1217 till recently in the case of Steel Authority of India Ltd. & Anr. Vs. State of West Bengal & others, 2008 AIR SCW 7019 has held that there is no time frame for raising an industrial dispute under the Industrial Disputes Act and that each case has to be considered on its own facts and circumstances. The Supreme Court held that the necessary ingredients is, that the industrial dispute should be an existing one or is apprehended and, in that light, the delay, if any, has to be considered. In order to elucidate the submissions made by the learned counsel for the parties, Rule 4 of U.P. Industrial Disputes Rules, 1957 which is applicable is extracted hereunder:- [4. Powers, procedure and duties of Conciliation Officers. – (1)On receipt of information about an existing or apprehended industrial dispute, the Conciliation Officer may, if he considers necessary, forthwith arrange to interview both the employers and the workmen concerned with the dispute at such place and time as he may deem fit and endeavour to bring about settlement about the dispute in question. 14 (2) The Conciliation Officer may hold a meeting of the representatives of all the parties jointly or of each party separately. (3) The Conciliation Officer shall conduct the proceedings expeditiously and in such manner as he may deem fit. (4) Where a reference has been made by the State Government in the matter of a dispute under Section 4-K of the Act to the Tribunal or Labour Court or the Adjudicator, the Conciliation Officer concerned shall forthwith forward to the Tribunal or the Labour Court or the Adjudicator concerned, the file of the Conciliation Board relating to that matter, immediately after the application in Form I is filed by the Union.] A perusal of the aforesaid indicates that where an existing or apprehended industrial dispute is received by the Conciliation Officer, he would make an endeavour to arrange or interview the workers and bring about a settlement about the dispute in question. If a settlement is arrived at, the same would proceed as per the Rule 5 of the Rules and, if no settlement is arrived at, the Conciliation Officer would submit a failure report to the State Government. In furtherance to the provision of Rule 4 of the Rules, the State Government issued a notification No.738 dated 31st December, 1957 under Section 3 (d) of the U.P. Industrial Disputes Act with regard to reference of dispute to a Conciliation Board. For ready reference, the said notification is extracted hereunder:- “published in the U.P. Gazette, Extraordinary, dated December 31, 1957/Pausa 10, 1879 Saka Era. LABOUR (A) DEPARTMENT Dated Lucknow, December 31, 1957. No.738 (ST)/XXXVI-A-112 (ST) 1957. – WHEREAS it is necessary in the opinion of the State 15 Government so to do for securing the public safety and convenience and the maintenance of public order and supplies and services essential to the life of the community, and for maintaining employment; Now, THEREFORE, in exercise of the powers conferred by clause (d) of section 3 of the U.P. Industrial Disputes Act, 1947 (U.P. Act No.XXVIII of 1947), the Governor of Uttar Pradesh is pleased to make the following order and to direct, with reference to section 19 of the said Act, that notice of this Order is given by publication in the official Gazette : ORDER 1. Definitions – In this Order, unless there is anything repugnant in the subject or context, - (a) “Act” means the U.P. Industrial Disputes Act, 1947; (b) “Chairman” means the Chairman of a Conciliation Board; (c) “Form” means a form given in the Schedule to this order; and (d) “Labour Commissioner” means the Labour Commissioner, Uttar Pradesh. 2. Reference to disputes to Conciliation Boards. – (1) An application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area concerned in Form - (i) in the case of a workman - (a) subject to the provision of sub-section (3) of section 6-I, by an officer of a union of which he is a member, or by an officer of a Federation of Unions to which such union is affiliated; or (b) where no union of workmen exists by five representatives of the workmen employed in a concern or industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry at a