JUDGMENT Bharati Sapru, J.
1. This writ petition has been filed the petitioner Institute against an award of the Labour Court IV, Kanpur dated 27.7.1999 published on 6.9.1999 in adjudication case No. 78 of 1998. The said award of the Labour Court has reinstated the respondent No. 2 in the services of the petitioner and has also awarded to him wages for the period 10.9.1998 onwards. The order of reference reads here in below:
KYA SEVAYOJKO DWARA SHRAMIK SRI ANIL KUMAR PANDKY PUTRA SRI VIJAY SHANKER PANDEY (PROJECT MECHANIC) KO OINAK 17.2.91 SE KARYA SE PRATHAK/VANCIHT KIYA ,JANA UCHIT EVAM VAIDHANIK IIAl ? YADI HAI TO SAMBANDHIT SHRAMIK KYA HITLAB/KSHATIPURTI PANE KA ADHIKARI HAI? KIS TITHI EVAM ANYA KIS VIVRAN KE SATH.
2. The facts of the case are that the Indian Institute of Technology, Kanpur (hereinafter referred to as the 'Institute') is a body corporate which is established under the provisions of the Institute of Technology Act, 1961. The petitioner is thus constituted as a 'statutory body under the provisions of the Act aforesaid. The petitioner is empowered to provide for both instruction and research in various branches of engineering and technology, arts and science and as also to provide for the dissemination of knowledge in all such branches.
3. In view of the statutory obligation imposed upon the Institute, it also undertakes to various research projects. The period of these projects varies from project to project.
4. It is the contentions of the petitioner that the persons who are engaged on these projects are not direct employees of the Institute but are employees of the concerned projects, which are administered by the Dean, Research and Development of the Institute.
5. According to the petitioner, it engaged services of the respondent No. 3 on a research project No. ARDB/ME/8908 vide appointment letter dated 31.8.1989 for a fixed period of three months on a consolidated salary of Rs. 1000/- per month as an ad hoc project worker, which is part of the record as Annexure 2 to the writ petition. Thereafter the respondent no, 3 was appointed in another project No. ARDB/ME/8940 on a consolidated salary of Rs. 1000/- per month for a period of three months by way of appointment letter dated 22.11.1989, which is also a part of the record as Annexure 3 to the writ petition.
6. Thereafter there was another ad hoc appointment on 17.1.1990, against which the respondent No. 3 applied and was issued an appointment for a period of six months on 26.2.1990 on a consolidated salary of Rs. l200/~. The term of the respondent No. 3 was extended upto 16.2.1991 by way of a letter dated 3.9.1990.
7. In pursuance of the appointment made against the advertisement dated 17.1.1990, an agreement was executed between the parties on 26.2.1990, which is on record as Annexure 7 to the writ petition. The first portion of the agreement recorded thus -
It must be understood that although the agreement is in the form of an agreement with the DIRECTOR, INDIAN INSTITUTE OF TECHNOLOGY, KANPUR, this appointment is made by the Indian Institute of Technology, Kanpur, out of R & D funds of the Institute for the sponsored research work. A person selected to fill it will be subject, in all respects, throughout his service to the orders that Institute issues from time to time in respect of staff employed out of R & D funds.
8. According to the petitioner, clause 3 of the same agreement provided as below -
3. The services of the party of the first part may be terminated as follows:
(i) During the first year by either party without notice and without assigning any reason.
9. The duration of the project was three years, according to the petitioner, as per letter dated 2.1.1989 which had been issued by the Ministry of Defence, Department of Aeronautical Engineering is also a part of the record of the case as Annexure 8 to the writ petition. Para 9 of the writ petition records that funds sanctioned for the project was Rs. 3,13,200/- and the project was finally closed on 31.12.1992 and balance of Rs. 1587/- was also refunded to the sponsoring agency which was the Ministry of Defence and therefore it is the petitioner's contention that on 31.12.1992, the project had come to an end.
10. According to the petitioner, the services of the respondent No. 3 were terminated in accordance with the provisions of clause 3 (i) of the agreement. The terms of letter of termination is dated 4.12.1990, which is quoted hereinbelow -
In accordance with 01.3 (i) of the agreement of your appointment in the project No. ARDB/ME/8908, your services are hereby terminated with immediate effect.
11. Undisputed fact which emerges from the case is that first time the respondent No. 3 made challenge to the letter of termination was by way of filing a writ petition No. 3111 of 1998 (Anil Kumar Pandey v. Director, Indian Institute of Technology, Kanpur and Anr.) in which he sought the following reliefs:
(a) to issue a writ, order or direction in the nature of mandamus commanding the respondent to reinstate the petitioner on the post of project mechanic forthwith.
(b) to issue a writ, order or direction in the nature of mandamus commanding the respondent to pay salaries from 6.12.90 to 16.2.91.
(c) to issue any other writ, order or direction which this Hon'ble Court may deem fit in the facts and circumstances of the case.
(d) award the costs to the petitioner.
12. The petitioner who had been terminated in the year 1990 first approached the Court in 1998. The above noted writ petition was dismissed by the Hon'ble Alok Chakaraborti, J. on 12.2.1998, by an order, which reads as under:
In the facts stated in the writ petition there is no explanation as to why the petitioner has filed the present writ petition after a long period of seven years. The repeated non-statutory representations do not explain the conduct of the petitioner and such want of diligence disentitles him to approach the court of law after a long period of seven years. Therefore, in that view of the matter, no relief can be granted to the petitioner either in respect of his grievance about termination or the claim for payment of salary for the period between 6.12.90 to 16.2.91.
It is after dismissal of this writ petition that respondent workman approached the Conciliation Board and the matter was ultimately referred in adjudication case No. 78/98 which is resulted in the impugned award.
13. The pleadings were exchanged before the Labour Court and also evidence was led. Various preliminary objections were also raised by the petitioner with regard to the delay in seeking the reference and also on account that the matter had been referred under the provisions of Section 4-K of the U.P. Industrial Disputes Act whereas the "appropriate Government" for the petitioner was the Central Government and therefore the reference should have been drawn under the Central Industrial Disputes Act.
14. The Labour Court has given the impugned award by coming to the conclusion that the respondent workman had worked for more than 240 days and therefore his services could have only been terminated after due compliance of provisions of Section 6-N of the U.P. Industrial Disputes Act. The Labour Court has returned the finding that because the provisions of Section 6-N were not complied with by the petitioner, the order of termination was bad and that entitles the workman to be reinstated from the date of the raising the reference.
15. The Labour Court has also recorded finding that even though it was contracted between the petitioner and the workman, the contract itself did not contain any stipulation that it could be brought to an end, without giving the respondent due notice and as it was done without due notice, it was not only illegal but also malafide. The Labour Court has also recorded finding that another employee was inducted in the place of the petitioner in the year 1998 and therefore the petitioner employer also violated the provisions of 6-Q of the U.P. Industrial Disputes Act.
16. The Labour Court has also recorded finding that the petitioner did not produce any document on record to show the actual life of the project and in absence of any evidence to establish that the project had come to an end, the termination of the petitioner and subsequent engagement of one Sanil Kumar Trivedi in his place was not justified. While giving this finding, the Labour Court has not given any back wages to the petitioner for the period of 1991 to 1998 but has reinstated him in service 1998 onwards.
17. Learned Counsel for the petitioner Sri Yashwant Varma has argued that the impugned award is wholly arbitrary, illegal and perverse and is vitiated as the Labour Court has failed to take a proper perspective of the matter in the special facts and circumstances of the case.
18. The first argument of the learned Counsel for the petitioner is that the reference itself was bad on account of the fact that the petitioner is an Institute created under the Institute of Technology Act, 1961, therefore the "appropriate Government" for making the reference could only have been the Central Government. His argument is that at the time when the reference was made in the year l998, the decision in the case of Air India Corporation Ltd. , prevailing at the relevant time and even otherwise the said ruling having been set aside by the decision of the Hon'ble Supreme Court in Steel Authority of India v. National Union Water Front Workers and Ors. in which also ultimately the Hon'ble Supreme Court held that the test where the "appropriate Government" is the Central Government or not, would be depend on the facts and circumstances of every case.
19. Learned Counsel for the petitioner has argued that the petitioner Institute is created under the Institute of Technology Act, 1961 and having been confirmed under an Act of Parliament, the appropriate Government for making reference could only be the Central Government.
20. The second argument as raised by the learned Counsel for the petitioner is that the termination of the workman by the petitioner Institute was not violative of provisions of Section 6-N of the U.P. Industrial Disputes Act as the respondent workman had been employed on a contract as is evident from the letter of appointment itself as well as the copy of the agreement, which is on record. The services of the workman were terminated in accordance with clause (i) of the agreement by way of letter dated 4.12.1990 and therefore the cessation of services fall within the exception embodied in Section 2(oo)(bb) of the Act is quoted hereinbelow:
2. (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
(a)...; or
(b)...; or (bb) termination of service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or;
(c)...; or-
21. In support of this argument, the learned Counsel for the petitioner has relied on two decisions of the Hon'ble Supreme Court in the case of Municipal Council Samrala v. Raj Kumar reported in (2006) 3 SCC 81 wherein the Hon'ble Supreme Court held that the workman who enters in a contract knows stipulations therein, therefore he cannot complain that the contract itself has brought to an end.
22. Learned Counsel for the petitioner has also relied on the case of State of M.P. and Ors. v. Arjunlal Rajak wherein also the Hon'ble Apex Court held that the project workers were not entitled to be regularized.
23. The third argument made by the learned Counsel for the petitioner is that the services of the workman were terminated on 9.12.1990. The first challenge to this order of termination was made by him in writ petition before this Court which was dismissed on 12.2.1998. In the said order, the High Court clearly spelt out that the respondent workman was guilty of latches and had approached the Court with great delay and therefore that disentitled him for any relief. The petitioner has therefore argued that even the reference which was raised by the respondent workman was raised after a period of eight years at time when no dispute existed between the respondent workman and the petitioner.
24. Learned Counsel for the petitioner has therefore argued that the dispute itself ought not to have been referred at the highly belated stage. In support of his argument, learned Counsel for the petitioner has cited two decisions one in the case of Haryana State Corporation Land Development Bank v. Neelam (para 12 to 20 of the reports) and Chief Engineer Ranjeet Sugar Dam and Anr. v. Shyam Lal reported in JT 2006 (6) SC 50.
25. The fourth argument of the learned Counsel for the petitioner is that the relief of reinstatement given to the workman by the award is not justified at all and is wholly unsustainable. He has argued that the respondent workman had been engaged in a project which has come to an end. Learned Counsel for the petitioner argues that a pleading had been made to this effect before the Labour Court itself and in para 5 of the rejoinder statement, it has been clearly said that project had come to an end on 31.12.1992. The project had been sponsored by the Ministry of Defence and it has been closed.
26. Learned Counsel for the petitioner has argued that the reinstatement of workman presupposes the restoration of the workman to the same status in which he had been terminated. He has argued that it is not possible to restore the status of the respondent workman in the same status as a project worker because the project of which he was engaged has come to an end.
27. Learned Counsel for the petitioner in support of his contention relied on a decision of the Hon'ble Supreme Court in the case of Manager, Reserve Bank of India v. S. Mani and therefore the order of reinstatement passed by the Labour Court reinstating him in the petitioner Institute as regular employment is unsustainable.
28. The fifth argument made by the learned Counsel for the petitioner is that the Labour Court has wrongly returned the finding of violation of Section 25-H of the Act as the order of reference made to the Labour Court only refers to the issue of the validity of the termination of the workman with effect from 17.2.1991. Subsequent engagement of hands and failure on the part of the petitioner to afford re-employment of the respondent workman was not an issue referred to the Labour Court and therefore the Labour Court has acted in excess of jurisdiction and has traveled beyond the scope of the reference made to it. The argument is that the Labour Court being a Court of referred jurisdiction cannot adjudicate issues not referred to it.
29. In support of this contention, the learned Counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court in the case of Firestone Tyre and Rubber Company of India (P) Ltd. v. Workmen Employed, represented by Firestone Tyre Employees' Union (para 9 of the reports), liven otherwise, the learned Counsel for the petitioner has argued that if there is violation of Section 25-H or 6-Q of the U.P. Industrial Disputes Act, it cannot result an order of reinstatement. For this purpose, the learned Counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in the case of Management of State Bank of Bikaner and Jaipur v. Santosh Kumar Mishra reported in 2003 (96) F.I.R 885.
30. In reply to the contentions as made by the learned Counsel for the petitioner, learned Counsel for the respondent Sri Rajeev Misra has replied thus.
31. In reply to the first argument made on the question of the "appropriate Government", the learned Counsel for the respondent has replied that the Labour Court has recorded a categorical finding that the issue with regard to the "appropriate Government" was not specifically raised by the employer petitioner, even otherwise he has argued that if the case of the petitioner that "appropriate Government is the Central Government, is assumed to be correct, yet the reference made by the State Government would not be bad for the simple reason that the Ministry of Defence, Government of India had issued a letter dated 2.2.1998 that status quo (sic) be maintained and thus it is to be inferred that if there is dispute between the Central Government and an agency of the Central Government sponsoring, the respondent workman could not be made to suffer on the said ground. He has argued that there is no wrong in the reference.
32. On the second point i.e. on the point learned Counsel for the respondent has argued that Section 2(oo)(bb) of the U.P. Industrial Disputes Act has no application in the State of U.P. For this purpose, he has relied on several decisions of this Court which are as under:
(i) 2000 (93) FLR
(ii) 2000 (89) FLR
(iii) 2000 (69) FLR
(iv) 1989 (2) UPLBEC 144
(v) 1982 (2) UPLBEC He has argued that the labour matters arc in the concurrent list and in view of the provisions of Article 254(2) of the Constitution of India, the provisions of U.P. Act would override the provisions of Central Act. In support of this contentions, the learned Counsel for the respondent has relied on a decision of this Court in the case of U.P. State Sugar Corporation v. Om Prakash Upadhyay reported in 2002 (93) FLR 600. He has relied on another decision of the Hon'ble Supreme Court in the case of Micro Appraisal Industrial Ltd. v. Dharmveer Singh reported in 2001 (89) FLR 895. He has also placed on reliance yet another two decisions in the case of Mohd. Hussain v. Labour Court IV, reported in 1994 (69) FLR 178 and in the case of Jai Kishan v. U.P. Co-operative Bank Ltd. reported in 1989 (2) UPLBEC 144.
On the third issues of delay, the respondent has argued that no time is prescribed under the said Act for raising reference. He has argued that there is no formula of universal application in so far as the delay is concerned. Secondly, he has argued that there is no pleading on behalf of the petitioner on account of delay made by the respondent, evidence has been wiped out.
Thirdly, he has argued that the cause of action arose in Feb., 1998 when the respondent workman came to know that another person has been appointed in his place and therefore there is no delay.
33. On the fourth point i.e. the point of reinstatement, the learned Counsel has argued that the petitioner has disclosed that the Labour Court has recorded a categorical finding that the petitioner has not brought on record any document to show that project has come to an end. On the other hand, it was well established that the respondent workman had completed 240 days of service, therefore he was clearly entitled to benefit of the Section 6-N of the Act. He argued that the violation of Section 6-N would no -doubt lead to an inevitable conclusion that the respondent workman should be reinstated.
34. In response to the fourth point i.e. the point of violation of Section 25-F or Section 6-Q of the U.P. Industrial Disputes Act, he has argued that the issues of other person being appointed in his place, was an incidental issue and therefore it was open to the Labour Court to go into this question and to decide point upon it. He has argued that the Labour Court has correctly recorded a finding that the provisions of Section 6-Q of the Act have been violated and this would result reinstatement of the respondent workman.
35. In reply to the argument made by the learned Counsel for the respondent, learned Counsel for the petitioner has cited a unreported Full Bench decision of five Judges of the Allahabad High Court in the case of Hindustan Sugar Mills v. State of U.P. and has argued that Section 2(oo)(bb) have no application to the case of the respondent workman is not correct, The Full Bench has clearly held that the case of Vishnu Das did not lay correct criteria of the application of the provisions of either of the two Acts and therefore the controversy, according to the petitioner, is sealed thus.
36. Learned Counsel for the petitioner has also argued in the Rejoinder Affidavit that the issue of the "appropriate Government" is a legal issue and in case of the petitioner, it being the Central Government, the provisions of Section 2(oo)(bb) will apply.
37. In the rejoinder affidavit, the learned Counsel for the petitioner has also argued that the issue of delay is not only to be considered from the point of evidence being lost but also from the point of view of the existence of the dispute itself, learned Counsel for the petitioner has argued that on the date when the dispute was arisen, no dispute existed between the petitioner and the respondent workman.
38. Lastly the learned Counsel for the petitioner has also argued that the order of reference did not contain any issue with regard to provisions of Section 6-Q, therefore the finding in this regard was bad. He has argued that even if the finding was correct finding, it would not result an order of reinstatement. For this purpose, he has relied on a recent decision of the Hon'ble Supreme Court in the case of State Bank of Bikaner & Jaipur v. Om Prakash Sharma reported in (2006) 5 SCC 123 wherein the Hon'ble Supreme Court held that the Labour Court found that there was no violation of Section 25-H, it would not entitle the respondent workman to be reinstated in service with back wages.
39. I have heard both sides at length. I have perused the record as well. In so far as the first issue is concerned, this issue of the "appropriate Government" being the Central Government for the petitioner, vary the fact that the petitioner Institute is constituted under a Parliamentary legislation lends credence to the argument made by the learned Counsel for the petitioner that "appropriate Government" for the petitioner in the present case is Central Government. However that would not render reference itself bad because while the issue relating to the question of the "appropriate Government" was binding directions issued by the Central Government that reference which was already made, would not suffer on that account. Apart from this, the petitioner did not challenge the reference at the very initial stage but acquiesced to the proceedings before the Labour Court. Even otherwise, the State Government is empowered to make the reference under both the Central Act as well as the U.P. Act and on this account, no serious prejudice has been caused to the petitioner, who had not even seriously argued this matter before the Labour Court. I am therefore not going into the merits of this issue.
40. In so far as the second issue is concerned that is the application of clause 2 (oo)(bb) of the Industrial Disputes Act is concerned that, I am of the view that the argument made by the learned Counsel for the petitioner have substance. The facts also support the contention of the petitioner. The reference itself describes the respondent workman as project worker. In his written statement also, he has described himself as a project worker. The petitioner Institute while tiling its rejoinder statement before the Labour Court made a clear pleading that the petitioner was engaged on project work, which came to an end on 31.12.1992. The facts as stated by the petitioner in the rejoinder statement as well as in the writ petition have not been the disputed anywhere that under an agreement, the respondent workman was given a purely ad hoc appointment in a Research Project No. ARDB/ME/8908, which came to an end on 31.12.1992. After the project is closed, the balance of Rs. 1587/- was refunded to the Ministry of Defence.
41. The respondent, in fact, has not even denied that he has made an agreement with the petitioner. The respondent workman has simply stated that he has worked for more than 240 days and therefore he is entitled to benefit of Section 6-N of the Act.
42. On the third point, which is the point of delay, there is force in the contention as made by the learned Counsel for the petitioner. The undisputed facts are that the respondent workman was terminated as project worker in the year 1990 but did not take recourse to any remedy which was available to him, he approached the writ court for the first time in the year 1998 and the writ court came to the categorical conclusion that the respondent workman was not able to make out any explanation good enough to show why he had been tardy in approaching the court. His writ petition was dismissed on the ground of latches. He approached the Labour Court after a period of almost eight years. The petitioner institute rightly took the objection that the delay factor in this case was to be considered because the project on which the petitioner had been appointed came to an end in the year 1992 and therefore there was no dispute which existed in the year 1998, when the reference was sought by the petitioner. Learned Counsel for the petitioner has rightly argued, it is not only to be considered from the point of evidence being lost, but also from the point of relief, which can be granted after such a long period. In this present case, the learned Counsel for the petitioner has rightly argued that the project on which the respondent workman was working was over, therefore as there was no cause of action in existence in the year 1998 no relief could have been granted to the respondent workman in the year 1998.
43. Consequent to the argument on delay is the fourth argument of the petitioner on the question of grant of relief of reinstatement. Learned Counsel for the petitioner is right in his contention in saying that the reinstatement presupposes restoration of the workman on the same status, which he held when terminated. The status of the petitioner, he has argued was that of the project worker and that cannot be restored when the project itself has come. As such the relief granted for the period of reinstatement was impossible and therefore the order of reinstatement granted by the Labour Court is unsustainable. The argument as raised by the learned Counsel for the petitioner on this account is also sound and I accept this.
44. The last argument is in respect of the issue of violation of Section 6-Q. Having heard both sides on this issue and I am of the opinion that even if the issue of Section 6-Q is to be considered incidentally to the main question then too, the same could not have resulted in order of reinstatement. That is the law, which has been laid down by the Hon'ble Supreme Court in the case of State Bank of Bikaner & Jaipur (supra). In a recent decision of the in the case of Nagar Mahapalika v. State of U.P. and Ors. reported in (2006) 5 SCC 127, the Hon'ble Supreme Court has held that even there is violation of provision of Section 6-N of the U.P. Act, the relief of reinstatement should not be granted as a matter of course but the legality or otherwise of order of termination should be considered to be an important factor in the matter of grant of relief. In that case, the respondent had been appointed on an ad hoc post as apprenticeship and their services were brought to an end and the Hon'ble Supreme Court held that in such a case, the relief of reinstatement should not have been granted but only compensation should he granted.
45. In the facts and circumstances of the case, as discussed above, I am of the opinion that the award of the Labour Court granting reinstatement is not justified and deserves to be set aside, I also hold that the provisions of Section 6-N of the U.P. Industrial Disputes Act, were not violated as the services of the respondent workman had come to an end after the project had been closed on 31,12.1992, as such he was not entitled to any relief thereafter, I also hold that even otherwise the respondent workman approached this Court in highly belated stage without giving any proper explanation for it. Therefore he is not entitled to any relief on this account. Moreover the High Court had already turned clown his prayer for relief on the ground of delay in the earlier writ petition. In case the respondent workman has received salary under an interim orders of this Court during the pendency of present writ petition, the same will not be recovered from him.
46. For the reasons as indicated above, the writ petition is allowed. The impugned award of the Labour Court so far as it relates to the reinstatement is set aside. There will be no order as to costs.