: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6456 OF 1997 Mahanagar Telephone Nigam Ltd. ... Petitioner V/s. Deepak Sadashiv Shrikande & Ors. ... Respondents Mr.S.R. Rajguru for Petitioner Mr.S.N. Pillai for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: JULY 8, 2010 ORAL JUDGMENT: 1. The Petition challenges the award passed by the CGIT No.II, Mumbai in Reference No.CGIT-2/2 of 1996. By this award, the Tribunal has allowed the Reference by directing the Petitioner to reinstate the respondent as a casual labourer and to pay him all wages from the date of termination of his services till reinstatement. 2. The facts in the present case cannot be disputed. Respondent No.1 was employed as a casual labourer with the petitioner from October 1985. He continued working with the petitioner till August 1986. His services were terminated on 1.9.1986 without complying with the procedure contemplated u/s 25F of the Industrial Disputes Act. Respondent No.1, therefore, approached the machinery available to : 2 : him under the Industrial Disputes Act for redressal of his grievance. A reference was made on 2.1.1995 for adjudication of his dispute for reinstatement with continuity of service and backwages. 3. Respondent No.1 in his statement of claim contended that he had wrongly been terminated from service by the petitioner without following the provisions of section 25B and 25F. Respondent No.1 therefore sought reinstatement with continuity of service and full backwages. The petitioner did not appear before his Tribunal. Despite this, the Tribunal considered the question as to whether the petitioner was an industry as defined u/s 2(j) of the Industrial Disputes Act. After considering various judgments of the Supreme Court right from the law laid down in the case of State of Bombay & Ors. v/s. Hospital Mazdoor Sabha & Ors., 1960 I LLJ 251 to the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board etc. vs. A. Rajappa & Ors., 1978 I LLJ 349, the Tribunal also considered the effect of the judgment of the Supreme Court in the case of Sub-Divisional Inspector, Posts v/s. Theyyam Joseph, (1996) 2 SCC SUPREME 487 where the Supreme Court had taken the view that Post and Telegraph Department was not an industry. The Tribunal then considered a later judgment of the Supreme Court where a three- Judge bench of the Supreme Court has observed that the law in Sub-Divisional Inspector, Posts v/s. Theyyam Joseph’s case (supra), is not correct in view of the decision in the case of Bangalore Water Supply and Sewerage Board (supra). The Tribunal therefore has held that the petitioner is an industry. 4. On the issue as to whether on merits, respondent No.1 was entitled to any relief the Tribunal held that the certificate issued by the petitioner indicated that : 3 : Respondent No.1 was working from October 1985 till August 1986 i.e. for about 320 days. In view of this, the Tribunal observed that Respondent No.1 was in continuous service as contemplated u/s 25B and therefore, was entitled to a notice or wages in lieu of notice besides payment of retrenchment compensation u/s 25F prior to termination of his service. Admittedly, the Tribunal observed that the termination of service was not on account of any misconduct and therefore amounted to retrenchment. The Tribunal has granted relief of reinstatement as a casual labourer. It has further directed that all wages from the date of his termination of service should be paid to the workman. The respondent has accordingly been reinstated in service on 18.4.2002. 5. The present writ petition has been admitted and the award has been stayed only as regards backwages. Obviously therefore the petitioner has reinstated the workman only after the order was passed on 21.9.1998 admitting the petition. 6. Mr.Rajguru appearing for the petitioner, submits that it is not an industry and therefore, the Tribunal has erred in adjudicating on the reference. He submits that the five-Judge bench of the Supreme Court has referred the decision in the case of Bangalore Water Supply and Sewerage Board (supra) to a larger bench of the Supreme Court for reconsideration of the kind of establishments which fall within the sweep of the definition of “industry” as stipulated u/s 2(j) of the Industrial Disputes Act. In these circumstances, he contends that this writ petition should not be heard till the reference is decided by the Apex Court. : 4 : 7. The submission of Mr.Rajguru is unsustainable. Today, the judgment in the case of Bangalore Water Supply and Sewerage Board etc., governs the field as to whether an establishment is an industry as defined u/s 2(j). Although this decision has been referred to a larger bench for reconsideration the judgment in the case of Bangalore Water Supply and Sewerage Board etc. (supra), has not been stayed. Therefore, since it holds the field, both the Tribunal and this Court are bound by the judgment in Bangalore Water Supply and Sewerage Board etc. (supra). The Tribunal has on the basis of the evidence on record held that the petitioner is an industry. Significantly, no written statement was filed by the petitioner. Nor does the petitioner appear to have cross-examined the respondent. In my view, the reasons set out by the Tribunal for declaring that Mahanagar Telephone Nigam Limited is an industry are cogent and must be accepted. Moreover, the contention of Mr.Rajguru that the department is not an industry cannot be accepted in view of the judgment in the case of Sub-Divisional Inspector, Posts v/s. Theyyam Joseph (supra). 8. Mr.Rajguru then submits that the workman has obtained a reference after an inordinate delay and therefore, the Tribunal has erred in directing the petitioner to pay the workman full backwages. He submits that although there was a cessation of employment on 1.9.1986, the workman raised the demand much later and obtained a reference in 1996. He therefore submits that the petitioner should not be saddled with payment of backwages from 1.9.1986. In my view, this submission of Mr.Rajguru is well founded. The Tribunal ought not to have granted full backwages when the workman had not approached the machinery under the Industrial Disputes Act diligently and within a reasonable time. There was a delay of 10 years in obtaining the reference. The workman had raised the demand only on 2.1.1994 : 5 : when he approached the Assistant Labour Commissioner. Therefore, in my opinion, he is not entitled to wages from the date of his termination from service till he raised the demand on 2.1.1994. 9. In any event, in the present case, the respondent has filed an affidavit on 21.4.2010 in which he has offered to forego backwages awarded by the Tribunal if he is regularised in service with continuity of service. 10. In my opinion, I need not consider this offer made by the workman since the Reference was not in respect of regularisation of the service of the workman. The reference only related to reinstatement. Therefore, it would not be appropriate for me to direct MTNL to regularise him only because of the offer. If the respondent workman is entitled to be regularised, the petitioner will do so in accordance with law. 11. The contention of Mr.Rajguru on the basis of the judgement in the case of Director, Food & Supplies, Punjab & anr. vs. Gurmit singh, AIR 2007 SC 3012 that full backwages ought not to have been granted and the matter should be remanded for a fresh consideration is unsustainable. In the aforesaid case, the Supreme Court was considering whether a long delay in obtaining a reference should be taken into account by the adjudicating authority while passing the award. The Supreme Court has observed thus: 5. .... The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. 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. The Tribunal or the Labour Court cannot strike down the reference on this ground. As observed in Sapan Kumar Pandit v. U.P. State Electricity Board : 6 : and Ors. (2001 (6) SCC 222) there are cases in which lapse of time had caused fading or even eclipse of the dispute. 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. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. The long delay for making the adjudication could be considered by the Adjudicating Authority while moulding the reliefs. That is a different matter altogether. 12. Therefore in my view, the matter need not be remanded and the relief can be molded in this court itself. 13. Mr.Rajguru then relied on the judgment in the case Reserve Bank of India vs. Gopinath Sharma & anr., (2006) 6 SCC 221 to contend that the laches and delay would make a dispute stale and therefore such a reference is not valid. The submission of Mr.Rajguru cannot be accepted. In Reserve Bank of India vs. Gopinath Sharma & Anr. (supra), the delay in obtaining the reference was 13 years. The Court held that such a delay in obtaining a reference was inordinate. Another bench of the Supreme Court in a later judgment in the case of Director, Food & Supplies, Punjab & Anr. vs. Gurmit Singh, reported in AIR 2007 SC 3012, has observed that in case there is a delay in approaching the Court the reference cannot be invalidated on the ground of delay but the Tribunal or the Labour Court can mould the relief. In fact, the Supreme Court has observed that if the employer has a grievance that the workman had raised a stale claim, it is open for the employer to challenge the reference by filing a writ petition. No such steps have been adopted in the present case, therefore, in my opinion, the submission of Mr.Rajguru that the reference ought to have been dismissed since it was delayed is untenable. : 7 : 14. The question now is whether the respondent could be entitled to full backwages. In my opinion, there is no justification for granting full backwages from 1986 to 1994 when he had not even raised a demand. Therefore, the petitioner need not pay backwages for that period. 15. Accordingly, the petition is disposed of with the modification that backwages from 1986 to 1994 need not be paid by the petitioner to the respondent. However, the petition shall pay the rest of the backwages awarded by the Tribunal to Respondent No.1 16. Mr.Rajguru seeks a stay of this order. Stay refused.