JUDGMENT
Sunil Ambwani, J.
1. After several adjournments, this writ petition had come up for hearing on 14.2.2003 and was dismissed in the absence of counsel for petitioner, after hearing Sri Devendra Dahma, counsel for contesting respondent-workman. On an application made by counsel for petitioner pleadings personal difficulties in attending the Court on 14.2.2003, the order, dismissing the writ petition, was recalled on 25.2.2003, and that after hearing counsel for both the parties, the judgment was reserved.
2. Petitioner is a society registered under the U. P. Cooperative Societies Act. Respondent No. 3 Lalta Prasad Singh, was appointed as kamdar in the society in the year 1963 and worked as Secretary of the Society from 1972 to 18.6.1977. It is alleged that he misappropriated a sum of Rs. 21,263.78 p. for which a first information report was lodged against him on 8.8.1978 and the same has been registered as case Crime No. 145 under Section 409, I.P.C. The said case was transferred for investigation by Cooperative Cell of Civil Police. The matter with regard to the recovery of amount was referred to the Deputy Registrar, Cooperative Society, U. P. at Gorakhpur, who appointed District Assistant Registrar Cooperative Societies, Deoria as Arbitrator. Respondent No. 3 did not appear before the Arbitrator inspite of service of notice on which proceedings were closed and an ex parte decree for recovery of the aforesaid amount was passed. He filed an appeal under Section 98 of U. P. Co-operative Societies Act, 1965, against the award. The Cooperative Tribunal U. P., Lucknow, found that the arbitrator, instead of entering into reference, proceeded to consider the matter on the administrative side collecting information about the first information report. Sri Lalta Prasad Singh respondent-workman had appeared before him and prayed for adjournment. On 20.9.1980, his statement was recorded which went on to prove that he had deposited a part of the amount and had claimed adjustment of certain amounts and thus indirectly admitted the liability to the tune of Rs. 5,307.78 p. The case was kept pending by arbitrator between 1980 and 1987 for the reasons which are not known, and thereafter he recorded a finding that Sri Lalta Prasad Singh could not answer the question or produce any evidence and made an award in favour of society. The Tribunal found that there was a detailed statement of Sri Lalta Prasad Singh on record and that the entire procedure adopted by the arbitrator was incorrect. The award was given without application of mind and was premeditated. The appeal was accordingly allowed and while setting aside the award, the suit was decreed for recovery of Rs. 5,307.78p and for rest of the claim, the matter was remanded to the Deputy Registrar for recording a fresh order of reference to a competent authority. It was also directed that the suit shall proceed only after deposit of Rs. 500 with the District Co-operative Bank concerned as security for payment to the defendant and in the event of failure of suit towards the costs. It was also directed that the defendant, if he contests that suit, shall also be entitled to his travelling expenses from the place of his ordinary residence and the same shall be taxed in the decree, if so awarded. Thereafter it appears that the matter has not been considered and finalised by the arbitrator. Both the parties were not able to inform about the status of proceedings as well as the criminal case.
3. The services of respondent-workman were terminated on 19.6.1977 on the ground of alleged defalcation. He approached the Deputy Labour Commissioner for conciliation after which the matter was referred by the State to the Labour Court, Gorakhpur, on 19.12.1996 for adjudication. The labour court sent a notice to the petitioner by registered post. By an order dated 5.7.1999, the Court, after narrating the case of workman-respondent No. 3 in para 2, finding that employer has not filed any written statement, nor any one appeared on its behalf, made the award under Rule 12 (19) of U. P. Industrial Disputes Rules, 1957 and directed reinstatement with entire back wages with all consequential benefits with costs of Rs. 100.
4. It appears that respondent-workman filed a caveat application in High Court, a copy of which was sent to the petitioner. Claiming source of knowledge from the said caveat application, petitioner filed an application before the labour court on 18.4.2000 for setting aside ex parte order under Rule 16 (2) of U. P. Industrial Disputes Rules, 1957. It was stated in para 9 of the application that petitioner came to know about the order in the second week of February, 2000, on the receipt of the copy of caveat application. The services of respondent-workman were terminated on 10.6.1977. He had raised dispute in which an arbitrator was appointed who gave his award on 19.12.1987, against which the appeal was allowed and the matter was remanded. The respondent-workman was held responsible for Rs. 5,307.78p. and that dispute, raised after 20 years, could not have been referred to the labour court and adjudicated by him.
5. Petitioner thereafter filed Writ Petition No. 15196 of 2000 which was dismissed on 31.3.2000 on the ground that petitioner has alternative remedy before the labour court for ventilation of his grievances. By the impugned order dated 26.3.2002, the labour court rejected the application on the ground that the application has been filed beyond ten days of the period prescribed under Rule 16 (2) and that since the employer was sent a notice by registered post, it did not return back, there is presumption of service upon them. The award and the finding of labour court was not passed ex parte and that the application was liable to be rejected both on the aforesaid ground as well as on merits. Aggrieved, petitioner society has filed this writ petition.
6. Sri Sudhakar Pandey, learned counsel for petitioner submits that respondent-workman was dismissed on 10.6.1977 after following the procedures provided under Service Rules. The society had taken the recourse to the arbitration proceedings in which a decree of Rs. 21,263.78 p. was passed. The matter was remanded by the Cooperative Tribunal with the direction to the respondent-workman to deposit Rs. 5,307.78 p. which has not been deposited by him and that the industrial dispute in respect of Secretary of the Cooperative Society could not have been referred after a period of 20 years. According to him, industrial dispute was raised in the year 1998 when the matter was pending with the arbitrator, and has also relied upon a judgment of Supreme Court in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors., 1997 (4) SCC 391, in which it was held that every department of Government cannot be treated as industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. According to him, the service conditions of Secretary were regulated by statutory rules and thus the dismissal of respondent-workman, after following the procedure, could not be treated as retrenchment of his services under the Industrial Disputes Act, 1947. Sri Pandey further submits that the labour court after narrating the case of respondent-workman in his statement, straightaway proceeded to made an award without taking any evidence as well as without recording finding in respect of delay in raising the industrial dispute. The labour court has given no reasons and has not recorded any finding with regard to the justiciability of termination of respondent-workman services and in the circumstances, it may be stated that the award did not contain any reason to return the finding in favour of respondent No. 3. The application for recalling the ex parte award was made within limitation and thus the award as well as the order, rejecting the application to set aside the ex parte award, are liable to be set aside.
7. Sri Devendra Dahma, on the other hand, submits that there is no limitation provided for raising the industrial disputes. The respondent No. 3 was a workman and the petitioner is an industry as defined under the U. P. Industrial Disputes Act, 1947. The petitioner society failed to appear inspite of service of notice upon it. and that since the matter proceeded ex parte, there was no necessity to give reasons in support of the award. Sri Dahma states that petitioner has played sharp practice in filing an incorrect copy of award, and is thus not entitled to any discretionary relief from this Court. He has relied upon the Judgments in Dr. Vijay Kumar Kathuria v. State of Haryana and Ors., AIR 1983 SC 622 and Indian Bank v. . Satyam Fibres (India) Put Ltd., 1997 (1) AWC 2.18 (SC) (NOC) : JT 1996 (7) SC 135, in support of submissions that where fraud is played with the Court, no discretionary relief can be granted. He has further relied upon a judgment in Gujarat State Co-operative Land Development Bank Ltd. v. P. R. Manda and Ors., 1979 (3) SCC 123, in submitting that where the U. P. Cooperative Societies Act does not provide a remedy for reinstatement, the matter can be agitated before the labour court ; and the Judgment in Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. Management and Ors. AIR 1973 SC 1227, for the proposition that powers of labour court with reference to Section 11A of the Industrial Disputes Act, 1947, are wide enough to reappraise the evidence and correct the finding in domestic enquiry.
8. The object of reference of industrial disputes to a labour court to maintain industrial peace by adjudication of disputes between the two parties. The services of respondent No. 3 were terminated on 10.6.1977. He waited for about ninteen years before approaching the Deputy Labour Commissioner for adjudication of dispute. After such a long period it cannot be said there was any dispute pending between the respondent No. 3 and the society to be adjudicated upon by the labour court. In Indian Iron and Steel Co. Ltd. v. Prahlad Singh, (2001) 1 SCC 424, the dispute was raised after 13 years of the termination of service of workman which was refused to be adjudicated upon by the Tribunal on the ground of delay and laches. The High Court interfered in the matter upon which the Supreme Court, while setting aside the order of High Court, held that the question whether relief can be declined on the ground of delay and laches, depends on the facts and circumstances of each case. In the said case, since the claim was made almost after a period of 13 years without any reasonable or justifying ground and there was nothing on record to explain the delay, the Tribunal refused to grant any relief. In Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd., 1999 (2) AWC 1649 (SC) : 1999 (82) FLR 137, the workman slept over the matter for seven years, and, in Sapan Kumar Pandit v. U. P. State Electricity Board, 2001 (3) AWC 2342 (SC) : 2O01 (90) FLR 754, the delay was fifteen years. Following the decisions in Western India Match Co. Ltd. v. Western India Match Co. Workers Union, 1970 (2) FLR 279 and Nedungadi Bank Ltd. v. K.P. Madhavan Kutty, 2000 (2) AWC 923 (SC) : 2000 (84) FLR 673 (SC), it was held that the expression ‘at any time’, though seemingly without any limits, is governed by the context in which it appears. Article 137 of the schedule to Limitation Act, 1963, is not applicable but these are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody has kept the dispute alive during the long interval, it is reasonably possible to conclude that the dispute ceased to exist after some time. In the present case, the respondent No. 3, did not challenge the termination and did not agitate the matter before any Forum, Authority or Court. The arbitration proceedings for a decree of defalcated amount were initiated by cooperative society. There was, as such, no dispute alive in 1998 to be referred for adjudication at all.
9. The U. P. Co-operative Societies Act, 1965, provides for registration of cooperative societies after which the work and governance of society is regulated by the Act. Section 122 of the Act, provides that the State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of cooperative societies, or a class of cooperative societies, and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a co-operative society and the society. The regulations framed under Sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette. Section 122A provides for centralisation of certain services. U. P. Co-operative Societies Employees Service Regulations, 1975, made in exercise of powers under Section 122 of the Act provides for strength of staff, recruitment, appointment, probation, confirmation, termination and retirement. In respect of cooperative society placed under the purview of the notification dated 4th March, 1972. Regulation 29 provides for retrenchment and Regulation 84 provides for penalties after disciplinary proceedings under Regulation 85. An appeal is provided against penalty under Regulation 86. The Service Rules, as such provide for settlement of disputes with regard to the terms of employment.
10. In R.C. Tiwari v. M. P. State Cooperative Marketing Federation Ltd. and Ors., 1997 (5) SCC 125, it is held by Supreme Court that where special procedure has been provided under the Act for resolving the dispute of management in business of society, it also provides for terms and condition of employment of the employees and disciplinary action against the employees is provided in the special Act, namely, M. P. Co-operative Societies Act, 1960, excluded the provisions of general Act, the Industrial Disputes Act, 1947 and thus the reference under Section 10 of the Industrial Disputes Act, 1947, therefore, stood excluded. I, therefore, find that in the present case, where a remedy was provided to the petitioner to challenge the order of termination by filing of appeal, which was a comprehensive remedy available to the petitioner, the dispute, if any, could not have been referred by the State Government to the labour court.
11. Coming to the merits of the matter, the labour court did not adjudicate the matter at all. It only narrated the case of workman-respondent No. 3, as set up by him in the written statement and without discussing the evidence adduced or even accepting the case of respondent No. 3, proceeded to make an award for his reinstatement with full back wages after a period of 22 years of the termination of service. The reasons given by labour court to refuse to set aside the ex parte award cannot be sustained.
12. In the present case, the society had referred the dispute for a decree of defalcated amount. In the year 1979, the arbitrator had awarded an amount of Rs. 21,263,78p. against the respondent No. 3. The Cooperative Tribunal modified the award and while decreeing the suit for recovery of Rs. 5,307.78 p. only, remitted the matter for fresh decision. There is nothing on record to show as to what happened thereafter before the arbitrator. In the aforesaid facts and circumstances, when respondent No. 3 had accepted the order of termination and had not challenged the same for the last twenty years, the State Government was not justified to have referred the dispute to the labour court for adjudication.
13. Learned counsel for petitioner has fairly submitted that there was an error in typing out the copy of the award. He submits that para 3 of the award was omitted and has prayed for that the true copy of the award, as annexed to the supplementary counter-affidavit, may be taken to be correct copy of the award. According to him, para 3 of the award is only to the effect that the employer has not filed the written statement and that no one was present or has filed any application on behalf of employer. According to him, the error due to which the aforesaid para 3 of the award was left out, was bona fide and was not intentional. Although, such an error should not have been made and may have prejudiced the Court while admitting the matter, for the reasons, set out above, I do not propose to deal the matter any further except to advise the counsel for petitioner to be more careful in future.
14. For the aforesaid reasons, the writ petition succeeds and is allowed. The impugned award dated 5.7.1999 made in adjudication case No. 561 of 1997 by Labour Court, U. P. Gorakhpur, as well as the order dated 26.3.2002 rejecting the application for setting aside the ex parte award, are set aside. There shall be no order as to costs.