IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 16384 of 1998 Between: K.Rajaiah, S/o Mallaiah, Scheduled Caste, R/o Chandulapur, (Via) Chinnakuduru, Medak District. ..... PETITIONER AND 1 The Desk Officer, Ministry of Labour Rep. by Union of India, Shram Shakti Bhawan, New Delhi-110001. 2 The Asst.Labour Commissionjer (C)-II, % RLC (C), ATI Campus, Hyderabad-500007. 3 The Telecom District Manager, Sanagareddy-502050. 4 The Sub-Divisional Officer, Telecommunications, Medak-502 110. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate Writ, Order or direction, more particularly a writ in the nature of certiorari, calling for the records relating to the 1st Respondent's adjudication order N.L-40012/37/97-IR(DU), dt.9.3.98and to quash the same with consequential directions to the 1st Respondent to refer the dispute for adjurisdiction by the concerned Industrial Tribunal or Labour Court and to grant any other appropriate relief. Alternatively, the petitioner may be permitted to the ﬁle the Industiral Dispute before the Industrial Tribunal-I, Hyderabad with appropriate directions to the said tribunal to enquire into the dispute and adjudicate the matter declaring that the I.D.Act, 1947 or any other other enactment does not impose any time limit in raising disputes, otherwise, the petitioner will suffer irretrievable loss and injury. Counsel for the Petitioner:MR.C.SURYANARAYANA Counsel for the Respondent No.: MR.R.S.MURTHY The Court made the following : THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 16384 of 1998 ORAL ORDER : This writ petition is directed against the orders passed by the Ministry of Labour, declining to refer the dispute for adjudication to the Industrial Tribunal and the reason is that the dispute has been raised after a lapse of 15years of the cause of action without any justiﬁcation for such a long delay. The writ petitioner has asserted that he was engaged as casual mazdoor in the Telecom Department on 2.3.1979 at Bikanoor and also at various other places which were forming part of the former Hyderabad Telegraph Division. The writ petitioner himself has pointed out that he was about 15 years of age at the time of his initial engagement. He asserts that he had worked without availing even weekly oﬀs. Due to a mishap at the work place he seems to have suﬀered an electric shock during October, 1981 and consequently remained absent from duty till May, 1982. After May, 1982, he had been retrenched from service by an oral order without indicating the reasons whatsoever. The writ petitioner has asserted that he has been engaged once again during the month of April, 1987 for 30 days and retrenched without any notice or reasons with eﬀect from 1.5.1987. Therefore, he asserts that his initial retrenchment from May, 1982 which was followed up in May, 1987 is illegal and that he should be accorded with the beneﬁt of continuous service from 2.3.1979 onwards. This claim was made on 29.3.1996. Thus, nearly after 14 years he had raised the issue relating to the wrongful termination of his services during 1982. In these set of circumstances, it was considered by the Ministry to be a stale claim and hence declined to refer the same for adjudication. Sri C.Suryanarayana, learned counsel for the petitioner has placed reliance on para 150 of the Financial Hand Book of Posts and Telegraph Department, which has been issued laying down proper working procedure by the department. According to the learned counsel, paragraph 150 dealt with the issue of maintaining a Muster Roll at the relevant point of time. Para 150 therefore required a Muster roll accounting for the works is to be maintained correctly with the department, and similarly these muster rolls are required to be kept in a book form and the stock of the muster roll books has got to be maintained and these muster rolls are also required to contain the data prescribed in para 157, based upon which the payments should be made in accordance with the procedure prescribed under paragraphs 164 and 165. With reference to paragraphs 167 and 170 of the Financial Hand Book, the learned counsel would urge that the Muster rolls and the payment data be not only maintained, but be preserved for veriﬁcation purposes at any point of time. It is relevant to notice the contents thereof : 150. The muster roll is one of the initial records upon which the accounts of works are based, and shows the work done by daily labour, and the amounts payable on this account. It is kept to prevent payments being made for work not really done. It may be kept up by any person in whom the Oﬃcer-in- charge of the work has conﬁdence, and may be either in English or in vernacular, whichever is most convenient and practicable. 157. As required by the form, every muster roll must invariably show on the observe of the form (i) the month to which the roll relates, (ii) the name of coolly, cartman, etc., and the description of labour, (iii) father’s name, (iv) address, (v) the rate of wages, (vi) the days on which each workman was actually present, (vii) the total number of days present, (viii) the details of the amount payable, (ix) the total amount paid, and (x) the balance due, and the on the reverse of the form, (i) the total amount of each kind of work done, (ii) the work or estimate to which the wages are chargeable, and (iii) the corresponding work order number and date. 164. Payments on muster rolls should be made, as far as possible, by the Sub- Divisional Oﬃcer or Attached Oﬃcer himself but they may be entrusted to a subordinate. When making the payments, the paying oﬃcer should satisfy himself that the payments are being made to the persons to whom they are due. In order to ensure that the payment is made to rightful persons, the paying oﬃcer should verify the identity of the mazdoors at the time of payment and should endorse the following certiﬁcate over his signature on the muster roll form :- “Certiﬁed that before making the disbursement I have interrogated the payees to ensure that they are proper persons and I have also compared their signature and/or thumb impressions with the corresponding ones on record and noticed no marked difference.” A certiﬁcate of the amount paid including the place and date of payment should be endorsed on the muster roll by the oﬃcer actually making the payment to the labourers. When the paying oﬃcer is of a rank other than a Gazetted Oﬃcer the payment should be witnessed by an oﬃcial of the highest standing available on the spot. When payment is made by a subordinate, this certiﬁcate of payment should be countersigned by the Sub-Divisional Oﬃcer or Attached Oﬃcer stating that he authorized the paying oﬃcer to make the payment. 165. Payments to daily labour employed on muster rolls may be made by service money orders when it is inconvenient or expensive for a paying oﬃcer to make a special journey for the purpose of paying the amounts in cash. This procedure should be adopted only in cases in which the amount to be paid is so small as to render it unnecessarily extravagant for a special journey to be undertaken for this purpose. In all ordinary cases, payments should be made in cash at the site of the work. When payment is made by service money order the paying oﬃcer should attach the money order receipt as well as the acknowledgement to the muster roll. If, however, the relevant muster roll has already been sent to the Divisional Oﬃce, the acknowledgement should be sent to that oﬃce for veriﬁcation and record with the muster roll. 167. The paid muster rolls should be submitted to the Oﬃcer-in-charge of the work for submission to the Divisional Engineer. When the muster rolls are received in the Divisional Oﬃce, the thumb impressions, etc., should be compared with the thumb impressions, etc., already on record in the Divisional Oﬃce vide Rule 158. Muster rolls are not sent to the Circle Accountant in support of the Cash Accounts Charges on these rolls should be described as such in the accounts to enable the Circle Accountant to accept them without the production of the vouchers. The following certiﬁcates should be endorsed on the muster rolls :- (1) A certiﬁcate to be endorsed by the Divisional Engineer, Telegraphs, over his signature to the eﬀect that the signatures and/or thumb impressions were compared in the Divisional Oﬃce with the corresponding ones on record and that no marked differences were noticed. (2) A certiﬁcate to be endorsed by the Junior Accounts Oﬃcer over his signature to the eﬀect that he has personally conducted a test-check of 2 per cent of the signatures and thumb impressions with the corresponding ones on record and noticed no marked differences. The Junior Accounts Oﬃcer should either put his dated initials in the relevant column in the muster roll against the names of mazdoors whose signatures and thumb impressions have been test-checked or alternatively indicate the serial Nos. and names of such Mazdoors in the endorsement on muster rolls. 170. Muster rolls should be treated as specially important records and kept under lock and key in charge of the Junior Accounts Oﬃcer or where there is no such oﬃcial, by the Head Clerk. The Oﬃcial in whose charge they are kept will be held personally responsible for all recorded muster rolls and should not give them to any one without the written permission of the Divisional Engineer. The Divisional Engineer should occasionally check the recorded muster rolls to see that they are correct. Oﬃcers authorized to draw cheques on Treasuries should, as far as possible, make all large payments by means of cheques payable at Treasuries. Learned counsel has also drawn my attention to Appendix 3 of the Financial Hand Book where the periods of preservation of records of account have been noted. While dealing with the register of works it was ordered to be retained for 20 years where as Ledger page sheets are required to be retained for all time to come and the muster rolls are to be retained for five years. Since the pay sheets are required to be retained for all times to come, the learned counsel would urge that that the conclusion drawn that the claim is a stale one is not proper or correct one and consequently the dispute requires adjudication by the Labour Court. Per contra, Sri R.S.Murthy, learned counsel would urge that the muster rolls maintained by the officers in-charge of the works are liable to be retained for only period of ﬁve years and hence any dispute which is to be entertained after ﬁve years of the cause of action, causes prejudice and diﬃculty for the contesting respondents, who will not be able to produce the necessary material in support of their case and therefore the delay which has been caused in raising the dispute renders it stale. Further, even assuming that the record of works has not been kept up properly or preserved as required by the Financial Handbook, it does not give raise for the claims to be raised at any point of time. Sri Murthy further contends that the instructions contained in the Financial Hand Book are essentially intended for Accounting and Auditing purposes of the Department and once it is realized that the works are properly accounted for, the records are not need to be preserved for long periods, particularly in view of acute constraints of space and infrastructure. While it is true that there is no speciﬁc period of limitation prescribed for raising an industrial dispute, but nonetheless it is fundamental that all disputes need to be adjudicated upon within the proximate closeness of cause. Things of remote past loose their sheen and do deprive the contesting parties to put forth eﬀective defence while resisting the claim. Thus, a prejudice is likely to be caused to the opposite parties in contesting such claims made after extraordinary delay. The petitioner has not chosen to explain the extraordinary amount of time taken by him for raising the dispute in question, except asserting that he is not so literate and that he belongs to schedule caste. When somewhat similar situation has been confronted, the Supreme Court in Asst. Exec. Engineer v. Shivalinga [1] has resolved the matter in the following words : “6. Learned counsel for the appellant strongly relied on the reasoning of the Labour Court and contended that the view of the High Court would not advance the cause of justice. Learned counsel for the respondent relied upon two decisions of this Court in Ajaib Singh v. The Sirhind Cooperative Marketing-cum- Processing Service Society Ltd. & Anr., AIR 1999 SC 1351 : 199(6) SCC 82 : 1999-I-LLJ-1260 and in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors., (2001) 6 SCC 222 : 2001-II- LLJ-788 to contend that there is no period of limitation prescribed under the Industrial Disputes Act, to raise the dispute and it is open to a party to approach the Court even belatedly and the Labour Court or the Industrial Tribunal can properly mould the relief by refusing or awarding part payment of back wages. It is no doubt true that in appropriate cases as held by this Court in aforesaid two decisions, such steps could be taken by the Labour Court or the Industrial Tribunal as the case may be, where is no such dispute as to relationship between the parties as employer and employee. In cases where there is a serious dispute or doubt in such relationship and records of the employer become relevant, the long delay would come in the way of maintenance of the same. In such circumstances, to make them available to a Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A situation of that nature would render the claim to have become stale. That is exactly the situation arising in this case. In that view of the matter, we think two decisions relied upon by the learned counsel have no application to the case on hand…..” As can be seen, there is a serious dispute between the parties as to the very nature of direct relationship between them. Therefore, the production of relevant records by the respondents acquires signiﬁcance in contesting the case. The unexplained delay of large number of years certainly causes prejudice for putting forth quality defence by the respondents. Hence I accept the plea made by Sri R.S.Murthy, the learned Addl. Standing Counsel for Central Government that the delay on the part of the petitioner caused prejudice to the respondents. Further, the detailed instructions contained in the Financial Code are obviously intended for the beneﬁt of proper Accounting and Auditing of works and the related payments undertaken by the department. Perhaps, when the said objective is accomplished to the satisfaction of the Department, there may not be any further necessity to preserve those records and registers. It is for the department to act suitable in that regard keeping in mind the ever increasing demands for Warehousing infrastructure and constraints of space as well. More importantly, these rules are not intended to confer any beneﬁt or any right on any particular or class of workman, for one to demand or insist upon for their safe preservation for long periods or for such periods prescribed in the code. This apart, Section 2(a) has been introduced recognizing retrenchment from service of an individual workman to be an industrial dispute by itself, notwithstanding the fact that no other workman or any union of workmen is a party to such a dispute. By the State amendment, provision has been incorporated in this regard in I.D. Act through A.P. Act No. 32 of 1987 rendering every such workman who has been retrenched as entitled to make an application in the prescribed manner and seek directions from the Labour Court for adjudication of the industrial dispute arising out of his retrenchment. Thus the necessity to have such a dispute referred for adjudication via, the mechanism contemplated under Section 10 of the Industrial Disputes Act has been shortened. Therefore, there is no necessity for the writ petitioner to have waited for a reference to be made to the Industrial Tribunal for entertaining the adjudication of his claim. He could have approached the Industrial Tribunal directly on his own if he was genuinely soliciting the redressal. He has not preferred to avail the same within a reasonable period of time after the cause of action has accrued to him. I therefore consider that the claim of adjudication sought to be made by the writ petitioner is stale and it has also the eﬀect of causing prejudice to the opposite parties to contest the matter. For these reasons, I do not ﬁnd any merit in the writ petition and the same is accordingly dismissed. No costs. ------------- -- knk 09.09.2008 ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{MSKM} [1] 2002-I-LLJ-457