IB _'S _glGS_ C00&Z OE" SVElCeSVSS. ss ssesie^K ^ W.P. Ho of 1998. «r.»'B tf's Betitioner .; - Eae cutive Baginee r, M.P. Hbasiag Board. Sub Bivisleu No.: DORG (B. P) •ve rs us . Bespp^^ents :^.l. P sidiag Offi.ee r Lacoar Ctoart, Earg. . Kohitlal, r/o village CbaEHiudia Post- Charaudia Sabsil Bhaatari, Eistt Balpar . Bepaty Laboar eoBinissieaer, Raipur iSIT_g£miQ]S VSTSS. ARSICLS 227_OE_'£Sg cess'Ei'cwXoa os ISDI&. / -. HIGH COURT^)FCHHATnSGARH AT BILASPUR WritPfctition No. 3874 of 1998 ^F ^ Petitioner : Executive Engineer, M.P. Housmg Board Versus Respondents : Presidiag OfiRcer & ofhcfs /' Post for order on ^.o"MApril, 2006. Sd/- Satish K. Agnihotri Judge H.^^sjocr-- ..-..-..j.AI-l-i.i-Juui^ HIGH COURT OP CHHATTISGARH AT BILASPUR Writ Petition No. 3874 of 1998 Petitioner Versus Respoudeuts Executive Enguieer, M.P. Housia; Board Presiduig Officer & ottiers Siagfe Bench: Hon'ble Mr. Justice Satish K. Agaihotri. Saiijay Patel, couasel for fhe Petitioner. Shri Saiiiav Pate! SIui H.B. Agrawal, Senior counsel wifh Shri Pankaj Agrawal, couascl for fhe respondent No. 2. None for the resRondents No. 1 aad 3. ORDER (20th ApnL 2006) 1. The present petition fiiled uuderArticle 227 ofthe Constitution of India impugns fhe awaid dated 2.3.1998 passed by the Labour Court ia Case No.31/I.D. Act/93 (Ref.). 2. The facts in nutsheU are that the respondent No. 2/einployee raised flie mdustrial dispute ia regard to the terminLation order dated May, 1983 before the resuondent No. 3. The respondent No. 3 by his order dated 9.11.1993 (Annexure P/ 1) referred the dispute to the Labour Court under Section 10 (1) of fhe Industrial Disputes Act, 1947 to the foUowing efFect:- "Whether tenniaation of service of Rohit Lal was leeal and valid, if no, fhe einplovee is entitled to which relief aiid in fhis regard what direction cau be issued to the eniplover."? The Labour Court, by its order dated 20.1.1998, which was pronounced ixi the open court on 2.3.1998, came to fhe conclusion fhat the petitioner has worked during fhe period 1982-83 before fhe temunation order was passed in May, 1983. <3. 6. The Labour Court further came to fhe conclusion fhat th^' -'>23 L_—.^ termination of tfae service of fhe respondent No. 2 auiounts to retrenchment and fhe order of retrenchinent without payment of retrenchinent coinpensation under fhe provisions of fh.e Industrial Disputes Act, 1947 was invaUd aad uuproper. Accorduigly, fhe petitioner was directed to reiastate the respondent No. 2 in service with 50% back wages. The petitioner/eiiiployer filed this petition im.pugniag fhe awaid passed by the Laboiir Court on the ground fhat the fiiidins recorded by fhe Labour Court was based on conjecture aad surmises. The respondent No. 2/employee has not produced sufficient material to reach to fhe findiag fhat he had worked for 240 days in a year aad further that fhe Labour Court has not considered delay ia raising fhe dispute. It was furfher urged that fhe provisioas of Section 25-F offhe Industrial Disputes Act are not appUcable to the facts of fhe present case as the respondent No.2/em.ployee was eniployed on daily wages basis. Shri Saajay Patel, leamed counsel appearmg for the petitioner subnutted that the impugned award was perverse aiid illegal on fhe grouud that fhe Labour Court has drawn adverse iaference agauist the einployer on the basis of statenient inade by fhe respondent No. 2/employee. It was farther contended that the question of delay was raised ixi fhe reply to fhe stateinent of the claun, but fhe sam.e was not considered aud decided by fhe Labour Court. Shri H.B. Agrawal, leamed Senior counsel wifh Shri Paukaj Agrawal, leamed couasel appearing for the respondent No. 2 submitted, per contra, that the respondent No. 2/employee has dischai^ed his burden to prove that he has worked from Febmary, 82 to tUl May, 83 regularly. The respondent No.2/emplovce has exauuned witaess Dasru Ram to prove that the respdndent No. 2/eiuployee worked diuing that period/as Peon in. fhe OfBce of the Rroperty Manager of fhe Petitioner Housiug Boatd. TIie witaess has supported fhe case of fhe respondent No.2/einployee. The petitioner/employer has not produced auy evidence, despite the order dated 15.7.1997 offhe Labour Court to produce attendauce register, ic.uster roU, paymeiit register and paid niuster. The eraployer/maaagement has not produced aay document aad has not further examiaed any witness in support of its case. On fhe question of delay, it was contended that fhe Labour Coiirt has considered aad accordingly moulded the reUefby grantiag 50% backwages, 7. Haviiig heard leamed counsel for fhe parties and haviag perused pleadiags and other docuinents amiexed to the pleadiugs, it is iudisputably established fhat tbe respondent No. 2/eniployee has specificaUy raised fhe issue ofworking for 240 days and the same has been proved by examiuiag a co-worker who has categoricatty supported the case of fhe respondent No. 2/employee. On the contraiy, fhe petitioner/eniployer, despite several opportunities granted by fhe Labour Court, has faUed to produce relevant documents to rebut fhe statement of the petitioner as well as deposition of the respondent No. 2's witness. The petitioner/employer has fiirther not attempted to coutradict or cross examiae the einployees' witness, 8. In the case ofAjaib Singh Vs. Sirhind Cooperative Marketiag- cum-Processing Servlce Society Liinited aad another1, the Supreiue Court observed as uiider:- "9. In Jai Bhagwaa v. Ambala Central Coop. Bauk Ltd.7 fhis Court declined to set aside ttie order of reiastatement of fhe workmaa who was shown to have approached fh.e i{ (1999) 6 Supreme Court Cases 82} ,. - ,3-5 '-^. 4 However, in fhe y-f. Court after a proloaged delay. circumstences of fh.e case, the Court directed the workman to be reinstated in service wifh continuity from fhe date ou which his services were temunated but having regard to the fact fhat he had raised the industrial dispute after a considerable delay wifhout doing aiiyfbijig in the ineaawhile, he was not awarded the back w^es. The grant of half back wages froxn the date of termiuation of service until the date of order and fiill back w^es frora fhat date tiU his reuistatement was found in the circumstaaces to ineet the ends ofjustice. In H.M.T. Ltd. v. Labour Court8 where fhere was a delav of 14 vears in iuvokm.g the jurisdiction of fhe court, fhis Court found fhat iastead of fuU back wages, fhe grant of 60 per cent of the back wages upon the reinstateinent of the workmaa wouM ineet the ends ofjustice. 10. It follows, therefore, that the provisions ofArticle 137 of the Schedule to the Limitation Act, 1963 are not appUeable to tfie proceediags iiader fhe Act aad that fhe reUef under it cannot be denied to the workcaaDL inerelv on thc ground of delay. The plea of delay if raised by Uie einployer is required to be proved as a inatter of fact by showiag the real prejudice and not as a inerely hypofhetical defence. No reference to fh.e Labour Court caa be generally questioned on the ground ofdelay alone. Evea iu a case whcre the delay is shown to be existing, ftie tribuaal, labour coiirt or board, deating with the case can appropriately mould fhe relief by decliaiag to graat back wages to the workmau till the date he raised the deniand regardiag his iUegal retrenchjaent/tenniaation or disniissal. The court inay also in appropriate cases direct fhe payment of part of fhe back wages iastead of full back wages. Reliance ofthe leamed counsel for the respondent matiagemient on the FuU Bench judgment of the Punjab and Haryaaa High Court iu Ram Chander Moiya v. State of Haryana9 is also of no help to him. In that case fhe Hieh Court nowhere held fhat the provisions ofArticle 137 of the Limitation Act were applicable m the proceedmgs under fhe Act. The Court spectBcaUy held "neither any limitation has been provided nor aay guidelines to ia such cases". However, it went on further to say that "reasonable time ia the cases of laboiu- for demaud qf ^ / reference or dispute by appropriate Govertuneat of labour tribunals w31 be five years after which the GovertLment can refuse to make a reference on the ground ofdelay and lacbes ifthere is no explaaation to fhe delay". 9. ln the case of Mahavir Singh Vs. U.P. State Blectricity Board and others2, fhe Supremie Court observed as under :- "3. Once the tenninatioa is held to be itlegal, we fail to appreciate how the entire reference could bave been rejected. The dispute liagered on for a niuuber of years. That woiiM not mean that the dispute had ceascd to exist. It is, of courae, true that belatedly fhe dispute was raised but that has been taken care of bv the Labour Court by not awardiug fuU back wages but only 50% of fhe back wages all fbroughout froin fhe date of temunation tiU reinstatement. Such order as passed by the Labour Court could uot be said to be iu any way uncalled for and fflegal." 10. In the case ofU.P. State Electricity Board Vs. Rajesh Kumar3, the Supreiae Court observed as under :- "5. It is also not disputed by the leamed counsel for the parties that there is no period ofltmitation as is prescribed for ftie pardes ia makiag the refereuce. The facts aud circiunstauces of each case are to be considered in dealuns wifh the stale claims and appropriate reliefs are to be grauted.,........" 2{ (1999) 9 Supreme CourtCases 178} 3{ (2003) 12 Supreme Court Cases 548} 11. In the case ofS.M. Nilajkar aad others Vs. Telecoin District/ Maaager, Karntaka4, the Supreme Court obseryed as under :-' . "17. It was submitted on behalf of fh.e respondent that on account ofdelay iu raisiug the dispute by fhe appeUaats fhe High Court was justified in denying reUef to fhe appellants. We camiot agree. It is true, as held in Shalimar Works Ltd. v. Workm.cn4 fhat inerelv because fhe Industrial Disputes Act does not provide for a Uinitation for raisiag the dispute, it does not uieau that fhe dispute can be raised at any tiiue aud without rcgard to the delay and reasons fherefore. There is no lunitation prescribed for reference ofdisputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after fhev have arisen aud after concUiation proceedings have failed, particularly so when disputes relate to discharge of workmeu wholesale. A delav of 4 vears in raisiag the dispute after even re- eiiiploynient of niost of fhe old workinen was held to be fatal ia Shalimar Works Ltd, v. Workmen4. In Nedungadi Baak Ltd. v. K.P. MadhavatLkutty6 a delav of 7 years was held to be fatal and disentifled the workmen to aav reUef. In Ratan. Chaudra Sammanta v. Uiiion of India5 it was held fhat a casual labourer retrenched by fhe einployer deprives him.self of remedy available iu law by delay itself; lapse of time results in. losiug fhe remedy aad the right as weU. The delav would certamlv be fatal tf it has resulted iu material evideace relevaut to adiudication bemg lost and rendered not avaUable. However, we do not think that the delay ia fhie case at haad has been so culpable as to disentitle fhe appeUants to aay reUef. Although the High Court has opiaed that there was a delay of 7 to 9 years ia raisiag the dispute before fhe Tribuual but we find the High Court factuaUy not correct. The einploynieat of the appeUants was termiaated sonietuue m. 1985-86 or 1986- 87, Pursuant to the judgnient ia DaUy Rated Casual Labour v. Union of India' the Departaient was fonnulatmg a scheiae to accominodate casual labourers aat the appeUauts were iustified ia awaituig the outeonie thereof. 4{ (2003) 4 Supreme Court Cases 27} / fe-^'./ ^ On 16-1-1990 fhey were rcfdsed to be acconunodated in. ^ 2 fhe Scheme. On 28-12-1990 they initiated fhe-- proceedmgs under the Industa'ial Disputes Act foUowed by concUiation proceedmgs aad then fbe dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not fhink that the appellauts deserve to be non-suited on fhe ground ofdelay. 18. The fact icinains that there was delay, though not a fatal one, ia initiating proceedmgs calculating fhe ttme between fhe date of termination and mitiation of proceedhigs before the Industrial Tribunal-cuiii-Labour Court. The em.ployee caanot be blained for the delay. The leamed Siagle Judge has deiued fhe relief of back wages while directmg the appeUants to be rein.stated. That appears to be a just aiid reasonable order. Moreover, fhe judgment offhe leamed Siugle Judge was not put in issue by fhe appellants by filiug au appeal." 12. In the case of Shahajl Vs. E^iecutive Engineer, FWD, fhe Supreme Court observed aa uiider :- °6. We have heaid counsel for the parties and we have also been taken through the judgments of ttiis Court reported in. Ajaib Siu.gh v. Sirhiud Coop. Marketiug-cum- Processing Service1, Nedungadi Banlc Ltd. v. K.P. MadhavaiLkutty2 aad Sapan. Kumar Paudit v. U.P. SEB3. Havuig gone fhiough fhe judgments we have no doubt fhat fhe judgment of fhis Court in Ajaib Singh case1 lays down the law correctly. In the iastaut case fhere was no ground of delay urged by fh.e maa^einent. Moreover, even if fhere was delay in malang fhe refereace to the Labour Court, if it came to the conclusion that fhe termiuation was illegal, it could have suitably raoulded the reUef to be granted to the workmaa ia view of the delay. In such cases the award of back wages may either be not permitted or curtailed. lu Nedungadi Baak Case2 what was challeuged before fhe High Court was the order inakuig the reference. That was not a case where fhe 5{ (2005) 12 Supreme Court Cases 141} Labour Court refased to entertain fhe dispute on th&/ ^ ,^_ ^i / <-' -'\/' ground ofdelay. Haviag regard to fhe clear position ia Irfw ^>' we are left wifh no option but to aUow this appeal and set aside thejudginent and order offhe High Court." 13. Leamed counsel for the petitioaer has cited fhe decisiou of fhe Supreme Court ia M.P. Electridty Board Vs. Hariram etc.6, whereiu fhe Supreiae Court held as uader:- ''......... lu such a factual background, iu our opinion, the Industrial Court or fhe Hi^h Court could not have drawn an. adverse iaference for the non-production of the Muster RoUs for the vear 1990 to 1992 ia fhe absence to speci&c pleading by fhe respondents-applicants fhat at least during fhat period fhey had worked for 240 days coutinuously in a given year. The application caUiag for the production ofthe docuuients was for the years 1987 to 1992. As stated above, between the period 1987 to 1990, as a iiiatter of fact, tiU end of the vear 1990 the respondents have not been able to estabUsh fhe case of continuous work for 240 days. Considering these facts ia our view drawiaa of an adverse uiference for fhe non- production of fhe Muster RoUs for the vears 1991-92, is whoUy erroneous on fhe part of fhe Industrial Court aud fhe Huih Court. We canaot but bear in rninrl fhe fact that fhe iuitial burdeu of establishiug the factuin of fheir contmuous work for 240 days in a year rests with flie appUcaats-respondents." 14. In the present case, the Labour Court, it appears has not estabUshed the fact fhat the respondent No. 2/eniployee had worked for 240 days coutinuously iu a given year on the basis of adverse inference drawn froui non-production of docuinents, despite fhe courfs order, this fact bas been estabUshed iudependentfy on fh.e basis of the statement made by the "2004 AIR SCW 5476 '^'.} respondent No. 2/employee supported by deposition of other co- worker which stands uncontroverted. Accorduigly, fhe decision ofthe Supreme Court ia M.P. Electricity Board's case (Supra) is not applicable to the facts ofthe present case. 15. On perusal of the above stated dccisions of the Supreme Court, it is clear fhat thc reliefcaiuiot be denied to the workman mierely ou the ground ofdelay when fhe impugned order of termmation was fouitd iUegal. The delay in raising fhe dispute caa bc takcn care of, white awarding back w^es. lu the present case, the Labour Coiut has awarded reinstatement with 50% back wages. It appears froin perusal of the unpugaed order that the Labour Court has not considered fhe question of delay, whUe awarding 50% back wagcs. It M a case where the respondent No. 2/einployce was einployed on dafly wages basis and as such the respondent No. 2/eiaployee cannot be granted back •wa^/ss for the period when he has not worked and the respondent No. 2/emptoyee has raiscd fhe dispute after a period of 10 years. 16. In fhe facts and circumstances of the case, the respondent No. 2/employee is not entitled to any back w^es. However, fhe respondent No. 2/cmployee wiU be entiUed to payment of his salaiy w.e.f. the date of fhe order passed by the Labour Court i.e, 2.3.1998. Leamed counsel for fhc respondent No. 2 submits that the respondent No. 2/empkiyee was paid last wages drawn on reinstatemcnt. The respondent No. 2/employee is entitled to ws^es as admissible and payable at fhe tiine of reiastatement, fhereafter revised from time to time. Accordingty, fhc petitioner is directed to make fhe payment ofdifferencc ofwages from the date, impugned award was passed. Bablu 10 17. For fhe .reasons stated-above, this petition is parfly aUowed ti fhe above extent as graat of 50% back wages is set aside. 1 Reinainiug part of fhe order for reiastating fhe respondcnt No. 2/employee in service is confinned. No order as to costs, Sd/- Satish K. Agnihotri Judge