JUDGMENT V.C. Misra, J.
1. Sri Rahul Anand Gaur learned counsel for the petitioner and Sri Pankaj Srivastava learned counsel for the respondents are present.
1. The case of the petitioner in brief is that the respondent No. 1 was appointed in the U.P. Road Transport Corporation, Jhansi Depot with effect from 20.4.1974 on temporary basis, thereafter the services of respondent No. 1 were extended from time to time. However, his services were purely temporary and were liable to be terminated at any time. During the brief period of his services he was found carrying passengers without tickets and at one time on 6.6.1975 while on duty he misbehaved with one of the officers (Assistant Traffic Inspector). His services were terminated vide order dated 23.7.1975 as per the terms and conditions of his appointment letter dated 27.5.1974 by giving him one month's notice. The respondent No. 1 challenged the order-dated 23.7.1975 before the respondent No. 2 on 14.9.1987 i.e. after more than 12 years from the day when the cause of action arose without furnishing any reasonable explanation. It has also been submitted that on 23.3.1975 the day the services of respondent No. 1 were terminated and the cause of action arose, (SIC) the provisions of Section 2-A of the U.P. Industrial Disputes Act were not in existence, the provision has been made operative only with effect from 24.10.1978 and was not retrospective in operation and as such reference of the individual dispute in respect of the said order could not be made. Thus, the reference order itself was bad and liable to be quashed. The petitioner did not deny the specific plea raised in paragraph 8 of the statement filed on behalf of the petitioner before the labour Court that the respondent No. 1 was gainfully employed elsewhere, and the compliance of Section 25-F/6-N of the U.P. Industrial Disputes Act was not at all required as the services of the respondent No. 1 were terminated in accordance with the terms and conditions of his services.
2. The labour Court passed the impugned award dated 29.10.1993 published on 29.1.1994 in favour of respondent No. 1 and directed the reinstatement of the workman without any back wages from the date of his termination i.e. 23.7.1975 till 1985, but allowed the back wages to the respondent with effect from 1986 onwards till the date of reinstatement. The petitioner being aggrieved by the impugned award filed the present writ petition on the grounds based on the facts mentioned hereinabove.
3. Counter affidavit was filed by respondent No. 1 denying the allegations made in the writ petition.
4. Learned counsel for the petitioner has submitted that the services of the respondent No. 1 were terminated without conducting any inquiry in terms of the appointment letter being motivated by his misconduct and he did not deserve to be continued in service on being found un-suitable for service and under such circumstances no notice or departmental inquiry was required to be conducted as the termination was not punitive in nature. More so, since he has no right to hold the post being a temporary employee.
5. In support of the above said submissions the learned counsel for the petitioner has relied upon the following cases:-
- State of U.P. and Anr. v. Kaushal Kishore Shukla reported in FLR 1991 (62) page 350,
- Triveni Shanker Saxena v. State of U.P. and Ors. reported in FLR 1992 (64) page 330, and
- State of U.P. and Anr. v. Prem Lata Misra (Km.) and Ors. reported in FLR 1994 Supreme Court Cases Vol. 4 page 189.
6. Learned counsel for the respondents has submitted that the question of delay in proceeding with industrial dispute was to be overlooked though Section 2-A of the U.P. Industrial Disputes Act was not in existence but the same already in existed in the Central Act by which it was absolutely clear that the dismissal or termination of the services of the workman would be deemed to be an industrial dispute and since admittedly no opportunity of hearing was provided to the workman prior to his termination, nor the provisions of Section 6-N of the U.P. Industrial Disputes Act had been complied with and the termination order was wrong, bad and illegal and rightly set aside by the labour Court. In support of his submissions, the learned counsel for the respondents has relied upon the following decisions:-
- Sohan Singh and Ors. v. The General Manager, Ordnance Factory, Khamaria, Jabalpur and Ors. reported in AIR 1981 Supreme Court 1862,
- Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. reported in Educational Service Cases (S.C.) 499.
- Assistant Executive Engineer v. Sri Shivalinga (U.P. Industrial Disputes Act, 1947),
- Union of India and Anr. v. Central Administrative Tribunal, Additional Bench, Allahabad and Ors. reported in {2000(1) ESC 191 (All.)},
- R.K. Nigam v. Swadeshi Cotton Mills and Anr. reported in Educational Service Cases (S.C.) 2001(3) 485,
- Ram Lakhan Singh v. P.O., Labour Court, Varanasi and Ors. reported in {1999(82) FLR 918 (Allahabad High Court)},
- Deep Chandra v. State of U.P. and Anr.
- Dhruv Ram v. Regional Manager, U.P.S.R.T.C., Jhansi region, Jhansi reported in {(1999) 2 UPLBEC 1479}, and
- The Chief General Manager, State Bank of India, Lucknow v. B.C. Verma and Anr. reported in 1994 (68) FLR-777.
7. I have looked into the record of the case and heard learned counsel for the parties at length and find that the grounds raised on behalf of the petitioner regarding non maintainability of the reference of industrial disputes before the labour Court on the ground of delay in reference made by State Government under Section 4-K of the U.P. Industrial Disputes Act is contrary to the settled law and as laid down in the case of Ajaib Singh v. Marketing-cum-Processing Services Society Limited and Ors. reported in 1998 Lab. I.C. 1435: [1999(4) SLR 109 (SC)] wherein it has been categorically held that Section 137 of the Limitation Act has no application and in a case where delay occurred for more than 7 years, the Court has only moulded relief by refusing back wages or directing part of back wages. In the case of Gurmail Singh v. Principal, Government College of Education and Ors., reported in 2000 (1) LLJ-1080 (SC), the Apex Court held:
"As laid down by this Court in the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Services Society Limited and Ors., reported in 1999 (1) LLI-1260 (SC) if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed."
19. It may be noticed that in the case of Guest Keen Williams Pvt. Ltd. v. P.J. Sterling, reported in AIR 1959 S.C.-1279, it has been clearly held that Limitation Act in relation to a proceeding under the Industrial Disputes Act, has no application. Submissions regarding non applicability of Section 2-A of the U.P. Industrial Disputes Act, 1947 in the present case are also not tenable in view of the settled law by Hon'ble the Apex Court rendered in the case of Ruston and Hornsby (I) Limited v. T.B. Kadam reported in 1975 (31) FLR 1973 (SC), wherein it was held that the provisions of Section 2-A of the Industrial Disputes Act, 1947 shall apply in respect of the disputes raised on or after the aforesaid section came in the statute book irrespective of the fact as to whether the workman had been dismissed from service earlier. It has also been held that, "the only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial 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." This aspect of the matter has been upheld in subsequent decisions of this Court. Thus, in my considered view the labour Court had all jurisdiction to decide the industrial dispute between the petitioner and the respondents in the Adjudication Case No. 212 of 1987 applying the provisions of Section 2-A of the U.P. Industrial Disputes Act, 1947 to the present dispute.
8. The termination of the services of the respondent No. 1 without providing any opportunity of hearing is also not tenable in view of the fact that admittedly the respondent No. l falls under the definition of a workman and thus his services could only be retrenched in accordance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 after paying the retrenchment compensation accordingly, which has not been done in the present case. No valid reason appears in the present case to interfere with the award. The decisions of the cases relied upon and cited by the petitioner do not apply to the facts of the present case. The principles laid down in the decisions of the cases cited hereinabove by the learned counsel for the respondents are fully applicable in the present case. I further find that, after thorough examination and critical scrutiny of the pleadings and relevant material and evidence brought on record, the respondent No. 2 has arrived at well-reasoned award dated 29.10.1993 (annexure-3 to the writ petition). The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the impugned award suffers from any illegality or error apparent on the face of the record. More so, the said findings of fact, arrived at by the respondent on the basis of which the impugned award has been passed, being based on relevant material on record, is not open to challenge before this Court while exercising its special and extra ordinary jurisdiction under Article 226 of the Constitution of India.
With these observations, the writ petition is dismissed. No order as to costs.