1. Petitioner while working on the post of Driver with U.P. State Road Transport Corporation at Azamgarh (hereinafter referred to as "UPSRTC") was allegedly involved for theft and misappropriation of Diesel. A charge sheet was issued against petitioner wherein the petitioner was charged for theft and misappropriation of Diesel. The reply of petitioner was found unsatisfactory and, therefore, an Inquiry Officer was appointed. A show cause notice was issued to petitioner and he submitted reply to the same. Inquiry Officer submitted his report dated 06.09.1994 wherein out of four charges only two (Charge No. 2 and 3) were found proved. The disciplinary authority thereafter considered the reply of petitioner, approved the inquiry report and awarded punishment for removal from service vide order dated 28.01.1995. Petitioner, thereafter, remained silent for about 7 years and he approached the Government for reference in 2002. The State Government vide order dated 17.04.2002 made following reference under Section 4-K of U.P. Industrial Disputes Act, 1947 for adjudication to Labour Court:
"क्या सेवायोजक पक्ष द्वारा अपने श्रमिक छेदीलाल पुत्र श्री रामजी की सेवायें दिनांक 28.1.95 से समाप्त किया जाना अनुचित एवं अवैधानिक है, यदि हाँ तो संबंधित श्रमिक क्या हितलाभ पाने का अधिकारी है एवं अन्य किस विवरण सहित?"
2. The Labour Court passed award dated 12.04.2017 whereby it has interfered with the findings of Inquiry Officer as well as order of disciplinary authority and found that no charge was proved against petitioner. However, considering that there was a delay of about 7 years in approaching for reference as also that petitioner has already attained age of superannuation, the following award was passed:
"अतः सेवायोजक पक्ष को आदेश दिया जाता है कि कर्मकार छेदी लाल को एक माह के नोटिस के स्थान पर एक माह के वेतन की धनराशि और सेवा समाप्ति करने के आदेश दिनांक 28.01.95 से उसकी सेवानिवृत्ति की आयु तक की अवधि के प्रत्येक पूर्ण वर्ष के लिये 15 दिन के औसत वेतन की धनराशि का भुगतान अवार्ड प्रकाशन की तिथि के एक माह के अन्दर करना सुनिश्चित करें।"
3. Petitioner being aggrieved by aforesaid award dated 12.04.2017 has approached this Court by filing present writ petition under Article 226 of the Constitution of India.
4. Learned counsel for petitioner has submitted that once the Labour Court has found that petitioner was not guilty of any charge, therefore, he should be granted all the benefits including pensionary benefits and, therefore, the award is liable to be modified to this extent.
5. The aforesaid submission was opposed by learned counsel appearing for UPSRTC. He contended that petitioner approached for reference after about 7 years of his dismissal and, therefore, despite the fact that no charge was found proved, the entire benefit cannot be granted automatically and there are various judgments of this Court as well as Supreme Court where, in similar circumstances, order for one time compensation or the order, such as impugned in present writ petition, were affirmed. Therefore, there is no merit in the writ petition and it is liable to be dismissed.
6. Heard learned counsel for parties and perused the material available on record.
7. In Prabhakar vs. Joint Director Sericulture Department and Ors, 2015(15) SCC 1 Supreme Court has dealt with the issue of delay in approaching for adjudication and the legal position has been summarised in para 42 of the judgment, which is reproduced as under:
"42. On the basis of aforesaid discussion, we summarise the legal position as under:
42.1 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.
42.2 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 necessary pre-condition. In 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.
42.3 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 as "dead", then it would be non-existent dispute which cannot be referred.
42.4 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.
42.5 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.
42.6 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 no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted."
8. In the present case there is no dispute that petitioner has approached the Government for reference after a period of 7 years and meanwhile he was already attained the age of superannuation. The Labour Court has found that no charge was found proved. However, considering that there was an extraordinary delay in approaching the Government for reference, the Labour Court passed award impugned in this writ petition. While passing award the Labour Court has also relied on a judgment passed by Supreme Court in Ajaib Singh vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Ors., 1999(6) SCC 82 where in para 10 Court held as under:
"10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned Counsel for the respondent-management on the full bench judgment of the Punjab and Haryana High Court in Ram Chancier Morya v. State of Haryana (1999) 1 SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act."
9. In a later judgment Supreme Court in Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal, 2013(14) SCC 543 has held as under:
"15. Recently in the case of Assistant Engineer, Rajasthan Development Corporation and Anr. v. Gitam Singh (2013) 5 SCC 136, this Court speaking through one of us (R.M. Lodha, J) on consideration of the most of the cases cited above reiterated the principle regarding exercise of judicial discretion by the Labour Court in a matter where the termination of the workman is held to be illegal being in violation of Section 25-F in these words:
"The Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute".
16. xxxxx
17. Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Anr. (1999) 6 SCC 82, in our view, cannot be read as laying down an absolute proposition of law that where plea of delay is not raised by the employer, the delay in raising the industrial dispute by the workman pales into insignificance and the Labour Court will be unjustified in taking this circumstance into consideration for moulding the relief. On the contrary, in Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Anr. : (1999) 6 SCC 82, the Court said that on account of admitted delay, the Labour Court ought to have appropriately moulded the relief though this Court moulded the relief by denying the workman some part of the back wages.
18. In a subsequent decision in Balbir Singh v. Punjab Roadways : (2001) 1 SCC 133, this Court observed that Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Anr. : (1999) 6 SCC 82 was confined to the facts and circumstances of that case. It is true that in Balbir Singh v. Punjab Roadways : (2001) 1 SCC 133, the plea of delay was raised before the Industrial Tribunal but we would emphasize the passage from Balbir Singh v. Punjab Roadways : (2001) 1 SCC 133 where it was said:
"Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially".
19. We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Assistant Engineer, Rajasthan Development Corporation and Anr. v. Gitam Singh : (2013) 5 SCC 136 that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed."
10. In view of above referred judgments of Supreme Court, it is clear that when there is a delay, which is about 7 years in the present case, the Labour Court, in case found that punishment for removal from service is not legally correct, could mould the relief and instead of reinstatement and back wages even the order for compensation could be passed, which is determined to be salary of 15 days per month from the date of order of removal (28.01.1995) till age of superannuation, which is a reasonable order. Also considering that in the present case petitioner has already attained age of superannuation and that there is a delay of about 7 years for reference and in view of above judgments passed by Supreme Court, I find no reason to interfere with the award passed by Labour Court.
11. The writ petition lacks merit. Dismissed accordingly.
12. Interim order, if any, stands vacated.
Order Date :-18.08.2021 AK