REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of S.L.P. (C) No. 4137 of 2007)
Kuldeep Singh .... Appellant (s)
Versus
G.M., Instrument Design Development
and Facilities Centre & Anr. .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) Leave granted.
2) This appeal is filed against the judgment and order of
the High Court of Punjab & Haryana at Chandigarh dated
31.10.2006 in CWP No. 8774 of 2005 wherein the Division
Bench of the High Court confirmed the award passed by
the Labour Court, Ambala and dismissed the writ petition
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filed by the appellant herein for reinstatement with full
back wages and other consequential benefits.
3) Brief facts:
(a) It is the case of one Sh. Kuldeep Singh, the
appellant/workman, that on 08.10.1990, he was
appointed as Data Entry Operator on daily wages and he
worked as such till 28.11.1991 and thereafter on ad-hoc
basis and worked up to 26.05.1992 without any break
when his services were terminated by the Instrument
Design Development and Facilities Centre (IDDC)-the
respondent/management herein. According to him, no
notice or compensation in lieu thereof was given for
terminating his services though he had worked for 240
days in the preceding 12 months. According to the
appellant workers junior to him were retained and even
fresh appointments were made after the termination of his
services which is in violation of provisions of Sections 25F
2
to H of the Industrial Disputes Act, 1947 (in short “the
Act”).
(b) It is the case of the respondent/Management that the
appellant/workman was working on daily wages to meet
the exigencies of work and his contract of employment
was on day to day basis and that the workman did not
render duty for requisite number of days in the 12
preceding months as claimed. It was further denied that
any worker junior to the appellant was retained in service
or any fresh appointment was made.
(c) On 12.12.2003, the Labour Court, after adverting to
the reference made by the Governor of Haryana as to the
non-employment of the appellant and after framing
necessary issues has held that the
respondent/Management is an industry within the
meaning of Section 2(j) of the Act and found that the
workman rendered the duty for more than 240 days in the
12 preceding months but the Management terminated his
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services without complying with the provisions of Section
25F of the Act, so the order impugned is illegal, null and
void and deserves to be set aside. Having found so on the
material issues 1, 5 and 6 in favour of the workman,
however, on the ground of delay in raising the demand
and finding that the reference is bad and incompetent
being raised so belatedly dismissed the claim of the
workman.
(d) Aggrieved by the dismissal of his claim, the workman
filed Civil Writ Petition No. 8774 of 2005 before the High
Court of Punjab & Haryana at Chandigarh. By the
impugned judgment dated 31.10.2006, the Division Bench
of the High Court by holding that the unexplained
inordinate delay has rendered the dispute in question as
patently stale accepted the award of the Labour Court and
dismissed the writ petition. Questioning the same, the
workman has filed the above appeal by way of special
leave.
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4) Heard Mr. B.S. Mor, learned counsel for the
appellant/workman and Mr. Shishpal Laler, learned
counsel for the respondent/Management.
5) The point for consideration in this appeal is whether
the Labour Court and the High Court justified in rejecting
the claim of the workman merely on the ground of delay
when the Labour Court concluded in categorical terms
that the termination of the services of the workman by the
Management without complying with the provisions of
Section 25F of the Act is illegal, null and void and
deserves to be set aside.
6) It is not in dispute that the appellant was terminated
from service w.e.f. 26.05.1992. It is the claim of the
workman that he has worked as Data Entry Operator from
08.10.1990 to 28.11.1991 and thereafter, on ad hoc basis
from 28.11.1991 to 26.05.1992 and since he had worked
for more than 240 days in the 12 preceding months and
his juniors were retained in service and fresh
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appointments were also made after his termination, the
act of the Management is in violation of the provisions of
Section 25 F to H of the Act.
7) After prolonged correspondence, the Governor of
Haryana in exercise of power conferred under Section
10(1)(c) of the Act, has made the following reference
between the appellant/workman and the
respondent/Management to the Labour Court, Ambala for
adjudication by way of notification bearing No. 62638
dated 22.11.1999:
“Whether the termination of services of the workman
Kuldeep Singh is valid and justified, if not so, to what
relief including back wages is he entitled?”
8) Before considering the order of reference, it is
worthwhile to refer Section 10 of the Act. Chapter-III of
the Act speaks about reference of Disputes to Boards,
Courts or Tribunals. We are concerned with Section 10 (1)
which reads as under:
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“10. Reference of disputes to Boards, Courts or
Tribunals.- (1) Where the appropriate Government is of
opinion that any industrial dispute exists or is
apprehended, it may at any time, by order in writing-
(a) refer the dispute to a Board for promoting a
settlement thereof; or
(b) refer any matter appearing to be connected with or
relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it
relates to any matter specified in the Second
Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, whether
it relates to any matter specified in the Second
Schedule or the Third Schedule, to a Tribunal for
adjudication:
xxx xxxxx”
Based on the above provision, on the application of the
workman, the Government of Haryana made the above
reference to the Labour Court, Ambala. On receipt of the
reference from the State Government, the Court assigned
it as reference No. 254 of 1999. Both the workman and
the Management filed their written statements before the
Labour Court. The Labour Court, based on the claim of
both the workman and the Management framed the
following issues for trial:-
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(1) Whether the termination of services of workman
Kuldeep Singh is valid and justified? If not so to
what relief including back wages is he entitled?
(2) Whether the reference is not maintainable as alleged
in preliminary objection No1 of the written
statement? OPM
(3) Whether the respondent-Management is an industry,
if so, to what effect? OPM
(4) Whether the reference is bad on account of delay and
laches as alleged in preliminary objection No.2 of the
WS? OPM
(5) Whether the workman was appointed on ad hoc basis
and against a specific work and after the completion
of work his services came to an end and if so, to what
effect? OPM
(6) Whether the workman did not complete mandatory
240 days as alleged? OPM
9) Before the Labour Court, both the parties led
evidence in support of their respective claims. The
workman, as WW-1, reiterated about his service
particulars as stated in his claim petition and also marked
documents A-E in support of his claim. On the other
hand, one Balbir Singh, S.O., was examined as MW-1 on
the side of the Management. Appointment letter of the
workman was marked as Exs.M1 & M2. The relevant
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pages of the attendance register are marked as Exs. M3 to
M16. MW-1 asserted that the Management never removed
the workman from service and he has not rendered the
duty for 240 days in the preceding 12 months. After
considering the claim of both parties in the form of oral
and documentary evidence, in respect of issues 1, 5 and 6,
the Labour Court, in para 19, has concluded thus:
“Workman rendered the duty for more than 240 days in
the 12 preceding months, as I held above, but the
Management terminated his services without complying
with the provisions of Section 25F of the Industrial
Disputes Act, so the order impugned is illegal, null and
void and deserves to be set aside. Accordingly, issue
Nos. 1, 5 & 6 are decided in favour of workman.”
10) It is clear that the Labour Court, on appreciation of
oral and documentary evidence, has concluded that the
termination of the workman i.e. the appellant herein is
illegal, null and void and deserves to be set aside. This
finding has become final since the Management did not
question the same by way of writ petition.
11) It is not in dispute that with regard to issue No.3, the
Labour Court has concluded that the Management-the
9
respondent herein is an industry within the meaning of
Section 2(j) of the Act.
12) The Labour Court has concluded that the workman
had raised the demand of reference after more than five
and a half years of his termination and has not offered
plausible and convincing explanation. On the other hand,
it is the claim of the workman that though his services
were terminated on 26.05.1992, all along, he was agitating
the issue with the Government in one form or other and
by making representation to various authorities. Having
found the termination void and contrary to the provisions
of the Act, the Labour Court dismissed the claim of the
workman only on the ground of delay.
13) The appellant/workman has furnished the following
information to show that after termination, he made
several representations to various authorities. They are:
(i) Representation dated 10.06.92 to the Hon’ble
Minister of respondents’ department.
(ii) Representation dated 11.05.93 to the Chief
Secretary of Haryana State.
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(iii) Representation dated 7.12.94 to the General
Manager, IDDC., Ambala
(iv) Representation dated 4.1095 to the General
Manager, ID.D.C., Ambala
(v) Representation dated 16.7.96 to the Manager,
HARTON, Chandigarh.
Besides that, he attempted for the same job twice as
under:
(i) Applied and interviewed for the same post out of 4
vacancies advertised in the Tribune dated
19.09.92.
(ii) Applied and interviewed for the same post out of
60 vacancies in the Sunday Tribune dated
14.5.1995.
The factual details have not been seriously denied by the
Management.
14) We have already noted that the Labour Court held
that the appellant has completed 240 days in 12
preceding months and the respondent/Management
terminated his services without complying with the
provisions of Section 25(f) of the Act and that the order of
termination dated 26.05.1992 is illegal, null and void and
deserves to be set aside but only on the ground of delay
rejected his claim in its entirety.
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15) Let us consider whether the Labour Court and the
High Court justified in rejecting the claim of the workman
only on the ground of delay in making the reference, more
particularly, when the Labour Court found that the
termination is bad and contrary to the Act. It is not in
dispute that there is no limitation prescribed for making
reference to the Government under Section 10 of the Act.
It is useful to refer to the decision of this Court in Sapan
Kumar Pandit vs. U.P. State Electricity Board and
Others, (2001) 6 SCC 222 which is directly on the point in
the case on hand. In that case, the appellant was
appointed as a Clerk on 01.01.1974 in the Electricity
Distribution Division, Mathura of the U.P. State Electricity
Board, but his services were terminated on 17.07.1975.
He raised an industrial dispute that the termination of his
services was illegal. The State Government, by an order
dated 29.03.1993, referred the dispute to the Labour
12
Court for adjudication as per Section 4-K of the U.P.
Industrial Disputes Act.
“Whether termination of the appellant on 17.07.1975 by
the employer was proper and legal; if not so, to what
reliefs the workman is entitled?”
The Labour Court took up the reference as Adjudication
Case No. 158 of 1993. The respondent Board filed a writ
petition before the Allahabad High Court assailing the
aforesaid reference order and also praying for quashing
the adjudication case pending in the Labour Court. The
appellant was arrayed as Respondent No. 5 in the writ
petition. A Single Judge of the High Court took the view
that the delay is so inordinate that the dispute has ceased
to exist by efflux of time and hence no reference under the
U.P. Act should have been made. Accordingly, the order of
reference passed by the Government was quashed by the
High Court holding that the workman kept silent for more
than 15 years and he woke up only after the petition of
other co-workmen was allowed and he made no efforts to
13
get his dispute referred to the Industrial Tribunal or
Labour Court. By holding so, allowed the writ petition of
the Management. The decision further shows that along
with the appellant, the Board retrenched ten other
workmen. Though the Industrial Tribunal passed an
award granting retrenchment compensation and certain
further other reliefs, the Union was not satisfied with the
said award and they filed a writ petition in 1980 before the
High Court of Allahabad. On 28.04.1988, the High Court
allowed that writ petition and held that retrenchment was
bad in law and the workmen concerned are entitled to be
reinstated. Though the Board filed special leave petition
in this Court which was dismissed in 1989. According to
the appellant, he was entertaining the expectation that the
Board would extend the same benefit to him. He was
proceeding with his request to the Board that he should
be treated on par with eight workmen some of whom were
reemployed by the Board. When the appellant found that
14
this was not done, he approached the Conciliation Officer
appointed by the State Government. His application for
condoning the delay in initiating conciliation proceeding
was disallowed by the Conciliation Officer. However, the
Deputy Labour Commissioner went to his rescue as the
delay was condoned and the conciliation proceedings were
revived. This happened on 28.01.1992. It was in the
aforesaid background that the State Government made
the reference for adjudication on 29.03.1993. Section 4-K
of the U.P. Industrial Disputes Act is almost in tune with
Section 10 of the Industrial Disputes Act, 1947 and also
there is no time limit fixed for making the reference for a
dispute for adjudication. Considering the identical words
i.e., “at any time” used in Section 10 (1) of the Act and
Section 4 of the U.P. Industrial Disputes Act, considered
the main question namely, “Was the industrial dispute in
existence on the date of reference for adjudication?” While
considering the same, a three-Judge Bench decision of
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this Court as to the scope of the very same provision,
namely, Section 4-K of the U.P. Industrial Disputes Act
was cited before the Bench. In M/s Western India Match
Co. Ltd. vs. The Western India Match Co. Workers
Union and Ors., (1970) 1 SCC 225 = AIR 1970 SC 1205,
the learned Judges made the following observations:-
“Therefore, the expression `at any time’, though
seemingly without any limits, is governed by the context
in which it appears. Ordinarily, the question of making
a reference would arise after conciliation proceedings
have been gone through and the Conciliation Officer has
made a failure report. But the Government need not
wait until such a procedure has been completed. In an
urgent case, it can `at any time’, i.e., even when such
proceedings have not begun or are still pending, decide
to refer the dispute for adjudication. The expression `at
any time’ thus takes in such cases as where the
Government decides to make a reference without
waiting for conciliation proceedings to begin or to be
completed. As already stated, the expression `at any
time’ in the context in which it is used postulates that a
reference can only be made if an industrial dispute
exists or is apprehended. No reference is contemplated
by the section when the dispute is not an industrial
dispute, or even if it is so, it no longer exists or is not
apprehended, for instance, where it is already
adjourned or in respect of which there is an agreement
or a settlement between the parties or where the
industry in question is no longer in existence.”
Based on the interpretation of the three-Judge Bench, it
was concluded:
16
“15. 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 galvanised by the
workmen or the union on account of other justified
reasons, it does not cause the dispute to wane into total
eclipse. In this case, when the Government has chosen
to refer the dispute for adjudication under Section 4-K
of the U.P. Act the High Court should not have quashed
the reference 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. The High Court has obviously gone wrong in
axing down the order of reference made by the
Government for adjudication. Let the adjudicatory
process reach its legal culmination.”
After saying so, allowed the appeal of the workman and
set aside the judgment of the High Court.
16) Learned counsel appearing for the Management
heavily relied on the decision of this Court in Nedungadi
Bank Ltd. vs. K.P. Madhavankutty and Others, (2000)
2 SCC 455, particularly, the ultimate conclusion in para 6
which reads thus:
“6. Law does not prescribe any time-limit for the
appropriate Government to exercise its powers under
Section 10 of the Act. It is not that this power can be
exercised at any point of time and to revive matters
which had since been settled. Power is to be exercised
reasonably and in a rational manner. There appears to
us to be no rational basis on which the Central17
Government has exercised powers in this case after a
lapse of about seven years of the order dismissing the
respondent from service. At the time reference was
made no industrial dispute existed or could be even said
to have been apprehended. A dispute which is stale
could not be the subject-matter of reference under
Section 10 of the Act. As to when a dispute can be said
to be stale would depend on the facts and
circumstances of each case. When the matter has
become final, it appears to us to be rather incongruous
that the reference be made under Section 10 of the Act
in the circumstances like the present one. In fact it
could be said that there was no dispute pending at the
time when the reference in question was made. The only
ground advanced by the respondent was that two other
employees who were dismissed from service were
reinstated. Under what circumstances they were
dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for
raising an industrial dispute was ex facie bad and
incompetent.”
17) Though this decision lays down that law does not
prescribe any time limit for appropriate Government to
exercise its power under Section 10 of the Act, the Court
has concluded that the said power is to be exercised
reasonably and in a rationale manner. In that case, the
Central Government exercised its power after a lapse of
about seven years of the order dismissing the workman
from service. A perusal of the said decision shows that
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the workman has not furnished adequate
reasons/materials for such a long delay and the only
ground advanced by him was that two other similarly
placed employees dismissed from service were reinstated.
18) It is true that following the decision in Nedungadi
Bank Ltd. (supra), another two-Judge Bench of this Court
in Haryana State Coop. Land Development Bank vs.
Neelam, (2005) 5 SCC 91 accepted the similar claim of the
Management and non-suited the workman on the ground
of delay.
19) We have already pointed out that there is no
limitation prescribed in the Act or in any other local Act
prescribing such period. We have also referred to the
materials placed by the workman. By making various
representations from the day when his services were
terminated and till his last representation dated
16.07.1996 to the Manager, HARTON, Chandigarh the
workman has proved that he was agitating his termination
19
one way or other with all the authorities concerned. The
particulars furnished clearly show that the
appellant/workman was fighting for his cause before the
Management as well as with the State Government
including the Chief Secretary and the Minister of the
concerned Department. Ultimately, the State Government
has made a reference on 22.11.1999 to the Labour Court
for adjudication.
20) The view expressed in Sapan Kumar Pandit (supra)
which is identical to our case has been considered and
followed in the subsequent decision, namely, S.M.
Nilajkar and Others vs. Telecom District Manager,
Karnataka, (2003) 4 SCC 27. In both the decisions, the
principles laid down in Nedungadi Bank (supra) have
been considered and distinguished. We have already
mentioned that in Sapan Kumar Pandit (supra), this
Court followed the principles enunciated in three-Judge
Bench decision of Western Indian Match Co. (supra). At
20
this juncture, it is useful to remind and reiterate the
finding rendered by the Labour Court on issue Nos. 1, 5
and 6 holding that the termination of the services of the
workman/appellant herein without complying with the
provisions of Section 25F is illegal, null and void and
deserves to be set aside. Undoubtedly, the Management
has to follow the provisions of the Act while effecting
termination, in fact, which was accepted by the Labour
Court and the Management has not challenged the same
before any forum.
21) In view of the above, law can be summarized that
there is no prescribed time limit for the appropriate
Government to exercise its powers under Section 10 of the
Act. It is more so in view of the language used, namely, if
any industrial dispute exists or is apprehended, the
appropriate government “at any time” refer the dispute to
a Board or Court for enquiry. The reference sought for by
the workman cannot be said to be delayed or suffering
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from a lapse when law does not prescribe any period of
limitation for raising a dispute under Section 10 of the
Act. The real test for making a reference is whether at the
time of the reference dispute exists or not and when it is
made it is presumed that the State Government is
satisfied with the ingredients of the provision, hence the
Labour Court cannot go behind the reference. It is not
open to the Government to go into the merit of the dispute
concerned and once it is found that an industrial dispute
exists then it is incumbent on the part of the Government
to make reference. It cannot itself decide the merit of the
dispute and it is for the appropriate Court or Forum to
decide the same. The satisfaction of the appropriate
authority in the matter of making reference under Section
10(1) of the Act is a subjective satisfaction. Normally, the
Government cannot decline to make reference for laches
committed by the workman. If adequate reasons are
shown, the Government is bound to refer the dispute to
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the appropriate Court or Forum for adjudication. Even
though, there is no limitation prescribed for reference of
dispute to the Labour Court/Industrial Tribunal, even so,
it is only reasonable that the disputes should be referred
as soon as possible after they have arisen and after
conciliation proceedings have failed, particularly, when
disputes relate to discharge of workman. If sufficient
materials are not put forth for the enormous delay, it
would certainly be fatal. However, in view of the
explanation offered by the workman, in the case on hand,
as stated and discussed by us in the earlier paragraphs,
we do not think that the delay in the case on hand has
been so culpable as to disentitle him any relief. We are
also satisfied that in view of the details furnished and the
explanation offered, the workman cannot be blamed for
the delay and he was all along hoping that one day his
grievance would be considered by the Management or by
the State Government.
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22) In the light of the above discussion and conclusion,
we set aside the award of the Labour Court insofar as
holding that the reference by the State Government is bad
and incompetent being raised so belatedly and dismissing
the claim statement on this ground and the order of the
High Court dated 31.10.2006 in C.W.P. No. 8774 of 2005
affirming the said order of the Labour Court and
dismissing the writ petition filed by the workman. In view
of the conclusion of the Labour Court with regard to Issue
Nos. 1, 5 and 6 deciding in favour of workman holding
that the Management terminated his services without
complying with the provisions of Section 25F of the Act
and the said order is illegal, null and void deserves to be
set aside, we order reinstatement of the appellant-
workman with consequential service benefits but without
back wages within a period of eight weeks. Since the
appellant is fighting for his survival for more than a
decade, we award a cost of Rs.50,000/- to be paid by the
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respondent-Management directly to the
appellant/workman within the same period.
23) The appeal is allowed to the extent mentioned above.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
DECEMBER 3, 2010.
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