Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. Writ Petition (MS) No. 46 of 2008 Date of Decision: 06 .08.2010 Bharat Heavy Electricals Limited …Petitioner Versus State of Uttarakhand and others …Respondents Present: Mr. I.P. Kohli, learned Sr. Advocate assisted by Mr. T.C. Pandey, learned counsel for the petitioner. Mr. Pankaj Miglani, learned counsel for the respondents. Connected with Civil Misc. Writ Petition No. 2933 (MS) of 2001 Old Civil Misc. Writ Petition No. 26836 of 1994 Bharat Heavy Electricals Limited …Petitioner Versus State of U.P. (Now Uttarakhand) and others …Respondents Present: Mr. I.P. Kohli, learned Sr. Advocate assisted by Mr. T.C. Pandey, learned counsel for the petitioner. Mr. Pankaj Miglani, learned counsel for the respondents. Hon’ble Nirmal Yadav, J. Abovementioned both the writ petitions are being disposed of together as the question with regard to denial of promotion to respondent no. 5 by the petitioner’s company and the reference of industrial disputes raised by respondents no. 4 and 5 having been made by the State Government is under challenge. The petitioner is a company having its plant at Ranipur, Haridwar. Hari Shankar Jauhari (respondent no. 5) was appointed in the petitioner’s factory with effect from 05.06.1965 as Lower Division Clerk and was further promoted as Assistant (Accounts) in May 1975. His next promotion to the post of Senior Assistant Grade III (Non supervisory) or 2 Assistant Office Superintendent (Supervisory) was due in the year 1982. It is stated that the petitioner-company laid down certain guidelines for promotion vide letter dated 13th June 1979 and as per the guidelines for promotion to the post of Senior Assistant Grade-I had to undergo prescribed selection method. Respondent no. 5 appeared before the Departmental Promotion Committee but was not found fit. Thereafter he did not appear before the Departmental Promotion Committee held for promotion to the next higher grade from the year 1984 to 1994. He raised an industrial dispute in the year 1982 but withdrew the same on 18.04.1984. Thereafter whenever respondent no. 5 submitted his representation/ application for promotion, he was duly informed that unless he was found fit for promotion by promotional committee he could not be promoted. Respondent no. 5 made representation on 18.01.1985 for his promotion to the post of Senior Assistant Grade III but was informed that he could not be promoted, as Departmental Promotion Committee did not find him fit for promotion. Respondent no. 4 B.H.E.L. Mazdoor Union through its General Secretary filed an application before the Conciliation Officer on 30.03.1993 submitting that respondent no. 5 Hari Shankar Jauhari was entitled to promotion as Senior Assistant Grade III with effect from 25.06.1982 and as Senior Assistant Grade II on 25.06.1987 and he was further entitled to be promoted as Senior Assistant Grade I on 25.06.1992 under the Time Bound Promotion Scheme. An application for condonation of delay along with the abovementioned application was also filed wherein it has been submitted that last letter/representation by the petitioner regarding the promotion of respondent no. 5 was communicated on 23rd September 1992. It was pleaded that though there was no delay in making the claim, but even if there was any delay in raising the dispute it has been satisfactorily explained. Thus the delay, 3 if any, may be condoned. The petitioner company filed its objection stating therein that the application moved by respondent no. 4 was highly belated and no satisfactory explanation has been furnished for the delay, therefore, the application is not maintainable. The Labour Enforcement and Conciliation Officer (respondent no. 3) vide order-dated 08.06.1994 condoned the delay in raising the dispute. Against the said order, the petitioner filed the writ petition bearing no. 2933 of 2001. It transpires that during the pendency of the said writ petition the conciliation proceedings concluded and consequent upon the failure report, the State Government referred the following dispute vide order dated 27th July 2007: - (i) Whether the time bound promotion of Hari Shankar Jauhari (respondent no. 5) Assistant (Accounts) Staff No. 1512633 having been denied by the employer with effect from 25th June 1982 as Sr. Assistant Grade III, 25th June 1987 as Sr. Assistant Grade II and 25th June 1992 as Sr. Assistant Grade I is proper and legal? If not, then what relief the respondent no. 5 is entitled to. The above order has been challenged by the petitioner/employer by filing writ petition no. 46 of 2008. This writ petition was clubbed with writ petition no. 2933 of 2001 and both the petitions were allowed by the learned Single Judge of this Court vide order dated 16th July 2008. The learned Single Judge held that no industrial disputes existed or apprehended and the dispute raised by respondent no. 5, was not an industrial dispute, thus quashed the reference order as well as the order dated 08.06.1994 passed by the Labour Enforcement and Conciliation Officer. 4 Since aggrieved B.H.E.L. Mazdoor Union (respondent no. 4) has challenged the order of the learned Single Judge by filing Special Appeal No. 177 of 2008 and Special Appeal No. 180 of 2008. Both the special appeals were allowed by Division Bench of this Court, setting aside the order of the learned Single Judge vide order dated 20th October 2009 and the writ petitions were remitted back for fresh decision. I have heard Mr. I.P. Kohli, learned Senior Advocate assisted by Mr. T.C. Pandey, learned counsel for the petitioner, Mr. Pankaj Miglani, learned counsel for the respondents and perused the material available on record. Learned counsel for the petitioner contended that the Conciliation Officer committed an error in condoning the delay in raising the dispute. According to him old and stale dispute cannot be allowed to be raised, more so, when the earlier dispute raised by the workman was withdrawn as far back as in the year 1984. It is argued that thereafter dispute was raised by the petitioner in the year 1993, but at that time no dispute actually existed between the employer and the employee. The dispute could not remain alive for so long as respondents no. 4 and 5 remained silent for 11 years and suddenly in the year 1993 filed the claim. Respondents have not been able to show any satisfactory or sufficient explanation for being complacent for 11 years and this fact has not been considered by the Labour Enforcement and Conciliation Officer as well as the State government while condoning the delay in raising the dispute and making the reference of the dispute respectively. In support of his argument learned counsel for the petitioner placed reliance upon a judgment of Allahabad High Court in the case of U.P. State Electricity Board and another Vs. State of U.P. and others reported in [2000 (1) CLR 619]. 5 It is further submitted that in the present case the petitioner had rejected the representation of respondent no. 5 vide letter dated 19th February 1987 informing him that vide said letter the employer finally disposed of the issue of his promotion and no further correspondence on this issue will be entertained. Thus there was no occasion for the workman to wait further for challenging his non-promotion. It is further argued that repeated representations did not extend the limitation and therefore, filing of the writ petition raising the dispute after six year thereafter is highly belated and deserves to be rejected on the ground of latches alone. In support of his argument learned counsel for the petitioner referred the judgment of the Apex Court in the case of Union of India and another Vs. S.S. Kothiyal and others reported in [1998 (8) SCC 682]. It is also argued by learned counsel for the petitioner that no industrial dispute was in existence or apprehended when the State Government made the reference. He further submitted that respondent no. 5 had already retired in the year 1995 therefore no reference could be made. He placed reliance upon a judgment of Apex Court in the case of National Engineering Industries Limited Vs. State of Rajasthan and others reported in [2000 (1) SCC 371]. On the other hand learned counsel for the respondents submitted that the circumstances for delay in raising the dispute before the authorities had been explained in the application moved before the Labour Enforcement and Conciliation Officer. It is argued that respondent no. 5 had made several representations from time to time. It is submitted that promotion sought by respondent no. 5 was time bound promotion. In the year 1982 he was to be promoted as Senior Assistant Grade III B VII (Non Supervisory) thereafter in the year 1987 he was to be promoted to Senior Assistant Grade II B- 6 VIII (Non Supervisory) and his next promotion was due in the year 1992 for the post of Senior Assistant Grade I B-IX (Non Supervisory). All the promotions were within the cadre and the respondent no. 5 never raised claim for promotion from non- supervisory post to the supervisory post. He further argued that promotion guidelines were never published nor brought to the notice of the workman. However, he referred to clause 4.2 of the Promotion Policy of B.H.E.L. which pertains to the promotion within cadre wherein eligibility for promotion from a lower grade to the next higher grade is on the basis of completion of the number of years of service prescribed in the lower grade and attainment of satisfactory standard in conduct and performance. Learned counsel for the respondents further submitted that time bound promotion policy is the criteria for promotion within cadre and no departmental promotion committee is to judge the candidates nor any such Departmental Promotion Committee was ever held as alleged by the petitioner. In the case in hand workman Hari Shankar Jauhari was due for promotion for the post of Assistant Grade III in the year 1982. According to him it was the time bound promotion. As per rule 4.2 of the Promotion Policy and Rules of B.H.E.L., employees are eligible for consideration for promotion from a lower grade to next higher grade within the same group/cadre on completion of the number of years of service prescribed in the schedule. The last communication addressed to the petitioner as per respondents’ claim petition vide memo no. PWX/1512633/1686 dated 23rd September 1992 was served to him in November 1992. It has further been argued that respondent no. 5 made several representations with regard to denial of promotion to him thus he was quite vigilant towards his promotion matter, however the management with the mala fide intention did not adhere to his request. 7 The guidelines and principles for promotion are provided in Rule 4, which are reproduced below: - 4. Guidelines and Principles: 4.1 Promotion from one Group/Cadre to another Group/Cadre Promotion from one group/cadre to another group/cadre is on the basis of merit as assessed through a selection process which may include an appraisal of performance, and test/interview designed to determine the employees’ skill, aptitude and abilities for effective functioning in the higher group/cadre. Employees are eligible for consideration for promotion to the higher group/cadre on completion of a specified number of years of service (to be referred to hereafter as “eligibility period”) in the highest grade in the lower group/cadre, subject to organizational needs. This eligibility period will be notified by the Management from time to time keeping in view the requirements of the organization. 4.2 Promotion within a group/cadre Employees are eligible for consideration for promotion from a lower grade to the next higher grade within the same group/cadre on completion of the number of years of service prescribed in the lower grade (to be referred to hereinafter as the “qualifying period”) and attainment of satisfactory standards in conduct and performance. The “qualifying period” for promotion within a group will be notified by the Management from time to time keeping in view the requirements of the organization. Respondent no. 5 does not fall in the supervisory or executive cadre. He falls in the skilled/Ministerial group, which carries grade A-III/B IV to A-IX/B IX. It is not the case of promotion from one group/cadre to another group/cadre. It is within the same group/cadre. As per rule 4.1, employees are eligible for consideration for promotion to the higher group/cadre on completion of a specified number of years of service subject to the organizational needs. The promotional 8 guidelines issued in May 1985 provides the eligibility period. Group A is for technical employees and Group B is for the non- technical employees. Respondent no. 5 Hari Shankar Jauhari falls in the group of non-technical employee and for the promotion to B VII, B VIII and B IX grades five years service is the eligibility criteria. It does not provide that the employee has to be interviewed or judged by any Departmental Promotional Committees. Along with the supplementary affidavit, the petitioner company has submitted the promotional guidelines mentioning the criteria for promotion. Normal promotion for non-executive reads as under: - ‘Normal’ Promotion- Non Executives All promotions under normal category in respect of non-executives would be on the basis of suitability cum career advancement policy. Whenever change of house is involved, the promotions would be subject to requirements and shall be made through positive selection taking into account the prescribed job specifications as per the selection procedures involving interviews/tests and performance appraisals. As per the above criteria, promotion under normal category would be on the basis of suitability cum career advancement policy. But if change of cadre is involved the promotion was to be subject to selection procedure involving interview/test and performance appraisals. In the instant case it is not petitioner’s plea that promotion of the workman involves change of cadre and therefore, he will have to undergo the selection process such as interview by the D.P.C. Be that as it may, this issue can be taken into consideration by the Labour Tribunal while adjudicating the reference of dispute by the State Government. 9 In the instant case, the petitioner has challenged as to whether stale dispute can be raised or entertained. It is not in dispute that law does not prescribe any time limit for the appropriate government to exercise its power under Section 10 of the Industrial Disputes Act or under Section 4-K of the U.P. Industrial Disputes Act. It is not in dispute that the power cannot be exercised at any point of time to revive matters which do not exist or which has since been settled in a reasonable and in a rational manner, it can be exercised keeping in view the reasonable and satisfactory explanation having been given by the workman. While disposing of the application for condonation of delay by respondent no. 4 and 5 the Labour Enforcement and Conciliation Officer has given sufficient reasons for condoning the delay, it finds mention that workman had been representing in writing and orally to the management but the management did not consider his representation in proper perspective. It has also been stated that against his promotion, respondent no. 5 had raised a dispute in the year 1982, however that was withdrawn by the union. Thus, it is clear that no conciliation took place in the matter and the matter was not decided on merit. Thereafter respondent no. 5 had been denied promotion from time to time i.e. in the year 1982, 1987 and 1992 against which he had been representing to the employer. According to the petitioner-company they had informed the workman vide letter dated 19th February 1987 that issue with regard to his promotion had been disposed of finally in the year June 1982 and therefore, no correspondence in this issue will be entertained. Learned counsel for the petitioner therefore, argued that submitting of representation from time to time would not extend the limitation. To my mind, the argument of learned counsel for the petitioner does not survive in view of the fact that workman was denied promotion in the year 1982, 10 thereafter in 1987 and 1992 and thus respondent no. 5 made representation and raised dispute in the year 1993. It is not a case where respondent no. 5 suddenly woke up at the end of 11 years and raised the dispute. The workman was having the expectation that the management would decide his representation that is why he was persisting his request upto the year 1992 but when he found that his request was not adhered to, he approached the Labour Enforcement and Conciliation Officer along with an application for condonation of delay. The said application was allowed by the Labour Enforcement and Conciliation Officer and the State Government made reference for adjudication of dispute on 27th July 2007. The argument of learned counsel for the petitioner that since workman had retired in the year 1995, therefore, the dispute cannot be accepted, does not survive. In fact respondent no. 5 had already raised the dispute in the year 1993 and which was pending before the Conciliation Officer. Section 4 K of the U.P. Industrial Disputes Act provides as under: - “4-K. Reference of disputes to Labour Court or Tribunal.- Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule or adjudication: Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court.” 11 No time limit has been fixed for making the reference of a dispute for adjudication. The words ‘any time’ mentioned in the above section indicates to a period without the limitation, however, while considering the time limit the factual position whether the dispute existed at the day of reference is to be taken into consideration. The Government has to take into account certain facts such as subsistence of conciliation proceedings and the continuous cause of action having arisen to the workman. In the present case, the dispute still existed till the year 1993, when the claim was raised by respondent no. 5. The Judgment relied by the learned counsel for the petitioner in the case of U.P. State Electricity Board and another Vs. State of U.P. and others reported in [2000 (1) CLR 619] has been reversed by the Apex Court in the case of Sapan Kumar Pandit Vs. U.P. State Electricity Board and others reported in [AIR 2001 SC 2562] wherein it has been observed as under:- “The words “at any time” as used in the S. 4- K are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this section itself to indicate that the time has some circumscription. The words “where the Government is of opinion that any industrial dispute exists or is apprehended” have to be read in conjunction with the words “at any time”. They are, in a way, complimentary to each other. The Government’s power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression “at any time” terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government it is idle to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have 12 extinguished the power of the Government to make the reference. Section 4-K indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference there is a presumption that in the opinion of the Government there existed such a dispute. Thus when the Government have chosen to refer the dispute for adjudication under S. 4-K the reference could not be quashed merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether.” In view of the factual position discussed in the earlier part of the judgment and in the background of the legal position as noted above, the delay has been correctly condoned by the Labour Enforcement and Conciliation Officer and thereafter the reference having made by the State Government. I find no merit in the writ petition and the same is dismissed. No order as to costs. (Nirmal Yadav, J.) VKG 06.08.2010