JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition, the petitioner seeks a writ of certiorari quashing the order dated 16th July, 1988 passed by the Presiding Officer. Labour Court, U. P. Varanasi, respondent No. 1, contained in Annexure-17 to the writ petition, and the order dated 3rd July. 1975 passed by the Assistant Regional Manager. U. P. State Road Transport Corporation, Varanasi, respondent No. 4 contained in Annexure-2 to the writ petition. The petitioner seeks a writ of mandamus directing the respondents to reinstate the petitioner on the post of conductor and to pay his salary accordingly.
2. The facts of the case in brief are that the petitioner was selected on the post of conductor by the U.P. State Road Transport Corporation (hereinafter referred to as the Corporation). He joined his duties in May. 1974, but all of sudden, an order was passed on 3rd July, 1975, by respondent No. 4 striking off the name of the petitioner from the waiting list. The petitioner made representation to the higher authorities but of no avail. Thereafter, the petitioner moved an application under Section 2A of the Industrial Disputes Act, 1947 on 17.4.1982, before the Regional Conciliation Officer, Varanasi. He also made an application explaining the delay in making application before him. Thereafter, vide order dated 23.5.1985, the dispute was referred to the labour court. The labour court, order, vide dated 16th July, 1988, declined to make any award in favour of the petitioner on the ground that the petitioner had raised industrial dispute after a lapse of more than 10 years which is barred by limitation. The labour court further held that the petitioner was not entitled to get the benefit under Section 2A of the aforesaid Act as the said section came in the statute book in the year 1978 and it shall not apply in respect of disputes arising before the said section came into force. While holding so, the labour court relied upon the decision rendered in the case of Jagdev Pandey v. Labour Court and others, 1987 (35) FLR 421.
3. I have heard Sri Shesh Kumar, learned counsel for the petitioner and Shri Samir Sharma, learned counsel for respondents.
4. The learned counsel for the petitioner submits that no time-limit has been provided under the aforesaid Act for making reference to the labour court for adjudication, and, therefore, the labour court was not at all justified in declining to decide the dispute on the ground of limitation. He relied upon the decision rendered in the case of the Chief General Manager, State Bank of India, Lucknow v. B.C. Verma and another. 1994 (68) FLR 777, wherein this Court had held that no time-limit has been provided for making reference under the Industrial Disputes Act.
5. On the other hand, Shri Samir Sharma, learned counsel for the respondents, relied upon the decision of this Court rendered in the case of U. P. State Electricity Board and another v. Presiding Officer, Labour Court-I, U. P. Kanpur and others. (1999) 1 UPLBEC 152, in support of his plea that even if no limitation has been prescribed for making reference in the Industrial Disputes Act, the normal period of limitation of 3 years for filing the suit may be held to be applicable for raising industrial dispute under the provisions of Industrial Disputes Act. The Hon'ble Supreme Court, in a recent decision rendered in the case of Ajaib Singh v. Sirhind Co-operative Marketing cum-processing Service Society Limited and another, JT 1999 (3) SC 38, has held that there is no limitation prescribed for making or seeking reference under the aforesaid Act. The Hon'ble Supreme Court in the above case had held as under :
"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 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 is 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."
6. Therefore in the present case, the labour court was not justified in declining to adjudicate the dispute raised by the petitioner on the ground of limitation saying that it is highly belated. Thus, the order of the labour court cannot be sustained in law.
7. The learned counsel for the petitioner submitted that the labour court was not at all justified in holding that the provisions of Section 2A of the Act is prospective in nature and cannot be availed of where the workman has been dismissed from services prior to 1978. He relied upon the decision of Hon'ble Supreme Court rendered in the case of Ruston and Hornsby (I) Limited v. T.B. Kadam, 1976 SCC (L&S) 381, wherein Hon'ble Supreme Court held that Section 2A of the Industrial Disputes Act, 1947 shall apply in respect of dispute raised on or after the aforesaid Section came in the statute book irrespective of the fact as to whether the workman has been dismissed from services earlier. In this case, the Hon'ble Supreme Court held as under ;
"Section 2A is in effect a definition section. It provides in effect that what would not be an industrial dispute as defined in Section 2(k) as interpreted by this Court would be deemed to be an Industrial dispute in certain circumstances. As was pointed out by this Court in Chemicals and Fibres of India Limited v. D.G. Bhoir, (1975) 4 SCC 332, the definition could as well have been made part of clause (k) of Section 2 instead of being put in as a separate section. There is, therefore, no question of giving retrospective effect to that section in making the reference which resulted in the award under consideration. When the section uses the words "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman" it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. In other words where there is a discharge, dismissal retrenchment or termination of service otherwise the dispute relating to such discharge, dismissal, retrenchment or termination becomes an industrial dispute. It is no objection to this to say that this interpretation would lead to a situation where the dispute would be reopened after the lapse of many years and referred for adjudication under Section 10. The question of creation of new rights by Section 2A, is also not very relevant. Even, before the introduction of Section 2A a dispute relating to an individual workman could become an industrial dispute by its being sponsored by a labour union or a group of workmen. Any reference under Section 10 would be made only sometime after the dispute itself has arisen. The only relevant factor for consideration in making a reference under Section 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under Section 2A did exist. Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The change made by Section 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute. Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid. All that Section 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen. What a labour union or a group of workmen can do the law is competent to do. The only question for consideration in considering the validity of a reference is whether there was an industrial dispute or apprehended dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers Ltd. v.
Modak, ILR (1948) 2 Cal 209, it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference.
The same reasoning would apply to a reference of a dispute falling under Section 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brother's case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills, Nagpur, AIR 1966 SC 907, These two decisions clearly establish that the test for the validity of a reference under Section 10 is whether there was in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that is the view taken by the Delhi High Court in National Productivity Council v. S.N. Kaul, (1969) 2 LLJ 186 (Del), by the Punjab and Haryana High Court in Shree Copal Paper Mills Ltd. v.
State of Haryana, 1968 Lab IC 1259 (P&H). The view of the High Court of Mysore in P. Janardhana Shetty v.
Union of India, (1970) 2 LLJ 738 (Mys) to the contrary is not correct."
8. The provision of Section 2A of the Industrial Disputes Act is similar to the provision of Section 2A of the U. P. Industrial Disputes Act. 1947. The above principles laid down by Hon'ble Supreme Court in respect of Section 2A of the Industrial Disputes Act shall also apply to Section 2A of the U. P. Industrial Disputes Act. The decisions relied upon by the learned counsel for the respondents in the case of National Textile Corporation, U. P. Ltd. v. S.N. Shukla and others, (1979) 39 FLR 101 and Jagdeo Pandey v. Labour Court and another, (1987) (35) FLR 421, have not been taken into consideration in the aforesaid decision of Hon'ble Supreme Court rendered in the case of Ruston and Hornsby (I) Ltd. (supra). Thus, they are per-incuriam. In my considered view, the labour court was not at all justified in declining to adjudicate the dispute raised by the petitioner on the ground that he could not take the benefit of Section 2A of the U. P. Industrial Disputes Act, since his services were terminated on 3rd July. 1975 much before coming into force of Section 2A in the U. P. Industrial Disputes Act. Thus, on both the grounds on which the labour court had declined to adjudicate the dispute, cannot be sustained.
9. In view of the aforesaid discussions, the writ petition succeeds and is allowed with costs. The order dated 16th July. 1988 passed by the labour court filed as Annexure-17 to the writ petition is hereby quashed. The labour court concerned is directed to decide the matter expeditiously not later than six months from the date of filing of a certified copy of this order before it, in accordance with law after affording opportunity of hearing to the parties concerned.