HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 746 OF 2004 Monday, the Twenty Sixth Day of October, Two Thousand and Nine Between P.M. Khan Petitioner AND The Principal Secretary to the Government, Labour, Employment Training and Factories (Lab-I) Secretariat, Hyderabad and others Respondents THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 746 OF 2004 ORAL ORDER: The petitioner, a driver in the A.P. State Road Transport Corporation (for brevity the APSRTC) challenges the action of the Government of Andhra Pradesh, vide letter No.1820/Lab.I/A2/2002 dated 13.08.2002, refusing to refer the dispute raised by the petitioner, under Sec. 12(5) of the Industrial Disputes Act, 1947 (for brevity, the Act of 1947) on the ground that the same was raised after a lapse of more than six years. The petitioner seeks a consequential direction to the Government to refer the said dispute to the concerned Labour Court for adjudication. The petitioner was appointed as a Driver in the APSRTC in the year 1981. He was subjected to disciplinary proceedings under the charge sheet dated 20.07.1995 with regard to his unauthorized absence from 5.8.1993 to 8.8.1993 and also for his bad record of attendance from January, 1993 to August, 1993. Thereupon, the petitioner was removed from service, which was also confirmed in appeal. However, on the review application filed by the petitioner, the Regional Manager, APSRTC, Kurnool, the third respondent, modified the punishment imposed directing that the petitioner should be reinstated in service as a fresh Driver Grade II and that his seniority should be reckoned from the date of his reporting for duty. The said order was passed by the Reviewing Authority on 15.12.1995. It appears that the petitioner being aggrieved by the loss of his past service, raised a dispute which was referred for conciliation. The date of reference to the Assistant Commissioner of Labour, Kurnool, the Conciliation Officer, is however not available in the record. Be that as it may, by report dated 31.03.2001, the Assistant Commissioner of Labour, Kurnool, informed the Government of the failure of the conciliation efforts and requested it to refer the dispute to the Labour Court, Ananthapur for adjudication. However, the Labour, Employment Training and Factories (Lab.I) Department, Government of Andhra Pradesh through the impugned proceedings dated 13.8.2002 refused to make the reference under Sec. 12(5) of the Act of 1947, stating that the petitioner was seeking to agitate a stale claim as he had raised the dispute after a lapse of more than six years. Hence, this writ petition. The Government of Andhra Pradesh did not choose to file a counter affidavit in this case. The APSRTC however filed its counter affidavit through its authorized Law Officer and admitted the facts hereinbefore stated. The ‘Reference’ portion of the impugned proceedings dated 13.8.2002 reflects that the representation of the petitioner addressed to the Conciliation Officer was dated 10.06.2001 while the Conciliation Report of the Assistant Commissioner of Labour, Adoni was dated 31.03.2001. This is obviously wrong as the Conciliation Report could not have preceded the representation of the petitioner addressed to the Conciliation Officer. In the absence of the date of initiation of the conciliation proceedings, the conclusion of the Government that there was a delay of six years in the raising of the dispute, is without basis. Further, it is relevant to note that the Supreme Court, in Ajaib Singh Vs. Sirhind Cooperative Marketing- cum-Processing Service Society Limited and another ([1]), held that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would not be applicable to the proceedings under the Act of 1947 and that the relief cannot be denied merely on the ground of delay. The Supreme Court stated that no reference to the Labour Court can be generally questioned on the ground of delay alone and observed that even in a case where delay was shown to be existing, the Tribunal, Labour Court or Board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. In view of the judgment of the Supreme Court in Ajaib Singh, the stand of the respondent Government that it is not required to make the reference under Sec. 12(5) of the Act of 1947 on the sole ground that it perceived a delay on the part of the petitioner in raising the dispute, cannot be sustained. Under Sec. 12(5) of the Act of 1947, the appropriate Government is required to consider the report submitted by the Conciliation Officer under Sec. 12(4) of the Act of 1947 and satisfy itself as to whether there is case for reference to the Labour Court or Tribunal, as the case may be. In the present case, the Government of Andhra Pradesh did not comply with the statutory requirements of Sec. 12(5) of the Act of 1947 having baldly rejected the request for reference on the ground of delay alone. The Writ Petition is accordingly allowed setting aside the proceedings in Lr. No. 1820/Lab.I/A2/2002 dated 13.8.2002. There shall be a consequential direction to the Government of Andhra Pradesh, respondent No.1, to address the matter afresh in the light of the provisions of the Act of 1947, duly considering the report of the Assistant Commissioner of Labour, Kurnool submitted under Sec.12(4) of the Act of 1947 and decide as to whether a case is made out for reference of the dispute raised by the petitioner, under Sec. 12(5) of the Act of 1947 to the appropriate Labour Court/Tribunal. In the circumstances of the case, there shall be no order as to costs. __________________ Justice Sanjay Kumar October 26, 2009 MAS. [1] (1996)6 Supreme Court Cases 82