Case: Prabhakar Vs. Joint Director, Sericulture Department &amp; Another

2. We may state at the outset that the main factor with which the High Court has been influenced is that the petitioner, whose services were terminated on April 01, 1985, raised the industrial dispute only in the year 1999, i.e. after a period of more than fourteen years. On the facts of this case, the High Court has held that there was no live dispute and even when no period of limitation is provided for raising the disputes under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and provisions of the Limitation Act, 1963 are not applicable, there could not have been a reference at such a belated stage, inasmuch as, after a lapse of such abnormal time, the dispute ceases to exist and, therefore, the appropriate Government had no jurisdiction or power to make a reference of adispute. The petitioner has questioned the appropriateness of this view taken by the High Court.The petitioner was appointed as a Clerk in the Sericulture Department, Government of Karnataka, Belgaum on April 01, 1984. His services were terminated on April 01, 1985. During the period April 01, 1985 till 1999, the petitioner did not approach anyauthority challenging the said termination. In fact, not even a notice or legal notice was served upon the Management questioning the validity of the said termination. However, some time in the year 1999, the petitioner approached the appropriate Government alleging that his services were terminated illegally and in violation of the provisions of Section 25F of the Act. Insofar as delay is concerned, in the claim made by the petitioner, only explanation given was that he had approached the Management on several occasions with request to reinstate him in service and pay back wages and other consequential benefits. He also alleged that though the Management initially assured that they would reinstate him, but dragged on the matter on one pretext or the other and when they ultimately told him that they would not reinstate him into service, he had no alternative but to raise the industrial dispute. The conciliation proceedings have started, which ended in failure. Thereafter, the appropriate Government referred the matter regarding validity of termination of the petitioner for adjudication.5. The Management had taken a specific plea in the conciliation proceedings as well as before the Labour Court that such a reference was not competent and the petitioner was not entitled to any relief when he had raised the dispute after fourteen years of his termination. On merits it was pleaded that the Management had not terminated the services and, in fact, it is the petitioner who left the services. Various issues were framed by the Labour Court, which included a specific issue as to whether any relief could be given when the dispute was raised after fourteen years of alleged termination. After the evidence was led, the Labour Court passed the award holding that the petitioner had worked for more than 240 days and his services were terminated by the Management without complying with the provisions of Section 25F of the Act. The termination was, thus, held to be invalid. The contention of the Management that the petitioner had left the service of his own was negatived by the Labour Court with the reason that no person would give up the work easily without any cause and as the petitioner had not got any alternate employment anywhere, the question of leaving his job by himself did not arise. Insofar as the issue of raising the dispute belatedly is concerned, the Labour Court held that even if there was a delay of fourteen years, only relief was required to be moulded because of that reason. Thus, the Labour Court ordered reinstatement, but denied back wages or other benefits. For this purpose, the Labour Court referred to the judgment of this Court in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors. ((2001) 6 SCC 222 )6. As pointed out above, the writ petition preferred by the Management against this award was dismissed by the Single Judge of the High Court. Against the order of dismissal passed by the learned Single Judge, the Management preferred writ appeal, which has been allowed by the Division Bench vide impugned judgment dated June 06, 2011. This special leave petition is preferred challenging the said judgment and there is also a delay of 1438 days in filing the same.

Reasoning:
7. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averred that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service, there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearlyPertinently, even the Labour Court has not accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate.It has been held in catena of judgments that while performing this administrative function, the Government would not decide the dispute between the parties which may be termed as judicial function and such judicial function is to be discharged by the Labour Court/Industrial Tribunal only.At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.19. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power under Section 10 of the Act, such a power could not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture.20. As early as in 1959, this Court in the case of Shalimar Works Ltd. v. Their Workmen ((1960) 1 SCR 150 ) pointed out that there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) of the Act. At the same time, the Court also remarked that the dispute should be referred as soon as possible after they have arisen and after conciliation proceedings have failed. In that case, reference was made after four year of dispute having arisen. In these circumstances, this Court held that relief of reinstatement should not be given to the discharged workmen in such a belated and vague reference.It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in Its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference.The aforesaid case law depicts theLaw of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.(b) The words at any time used in Section 10 would support that there is no period of limitation in making an order of reference.(c) At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.(d) Whether dispute is alive or it has becomeat the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference.If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/ Industrial Tribunal to decide the same issue coming before it.29. In this process, let us first examine as to what would constitute industrial dispute because of the simple reason that the appropriate Government has power to refer what is known as an industrial dispute and likewise the Labour Court/Industrial Tribunal has jurisdiction to decide if there is an industrial dispute. We are not going into the entire gamut of what constitutes industrial dispute within the meaning of Section 2(k) of the Act. Our focus is only on the aspect that what can be referred should be the dispute which is existing and in praesenti when the reference is sought. To put it otherwise, if it no longer remains an industrial dispute or industrial dispute does not exist at that time, there would not be any question on making reference or adjudicating the matter as it is not an industrial dispute.The term industrial dispute connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression dispute or difference as used in the definition, therefore, means a controversy fairly definite and of real substance, connected with the employment oror with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.On the basis of aforesaid discussion, we summarise the legal position as under:An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that any industrial dispute exists or is apprehended. The words industrial dispute exists are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessaryIn such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated asthen it would bedispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an existing dispute. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is noin the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.42. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters.43. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the appropriate Government to consider whether it is expedient or not to make the reference. The words at any time used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers financial arrangement and to avoid dislocation of an industry.44. On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a