Heard learned counsel for the appellant-petitioner and learned Standing Counsel for the State.
The special appeal relates to an individual workman. The appellant-petitioner moved an application before the Conciliation Officer for conciliation and to refer the matter under Section 2 (a) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The Additional Labour Commissioner vide order dated 31.10.2010 has rejected the request for reference on account of delay.
The learned Single Judge considering the petition filed in the year 2010 and the fact that the scheme in question under which the petitioner took benefit was of the year 1997 refused to interfere and dismissed the petition.
One of the contentions raised on behalf of the appellant-petitioner is that there is no limitation and for that reliance has been placed in the case of Sapan Kumar Pandit Vs. U.P. State Electricity Board, [2001 (90) FLR 754].
It is true that there is no limitation to take the matter in conciliation or to make a reference. However, the law is now well settled in a large number of judgments of the Apex Court that stale claims should not be entertained. We may gainfully refer to the judgment of the Supreme Court in Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors., (2000) 2 SCC 455, where the Supreme Court has observed that the power to make a reference should be exercised reasonably and in the rational manner and not in mechanical fashion. In spite of absence of a statutory limitation period, such power cannot be exercised to revive settled matters or to refer stale disputes. Where a dispute becomes stale, it would depend on the facts and circumstances of each case.
The learned Single Judge, therefore, rightly dismissed the petition on that ground.
The other issue is whether at the instance of an individual workman, could the matter be taken in conciliation for reference of the dispute to the Industrial Tribunal.
Section 2-A of the Act reads as under:-
"2-A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."
It is, thus, clear that an individual dispute can be treated as an industrial dispute only in cases, which are covered under Section 2-A of the Act, namely, in cases of discharge, dismissal, retrenchment or any other termination.
In the instant case, a Voluntary Retirement Scheme (VRS) was floated by the Company. The Union entered into a settlement. The nature of the settlement is not known but it is possibly a settlement under Section 6-B (1) of the Act. Apart from that, the definition in Section 2 (s) to the Act clearly provides that retrenchment would not include a Voluntary Retirement Scheme of the workman. It reads thus:-
"2. Definitions.-(a) ... ...
(s) 'Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include -
(i) voluntary retirement of the workmen; or
(ii) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf;"
Thus, a dispute regarding non-payment of wages as contended on behalf of the petitioner, who is the appellant before us, would not fall within Section 2-A of the Act and as such the matter could not be taken in conciliation. For the said reasons also the question of referring the matter to the Tribunal would not arise, as there is no question of submitting a failure report.
Learned counsel for the appellant states that he is not a party to the settlement. The fact remains that the appellant took the benefit of the settlement by which the VRS was introduced. Once that be the case, the law is clear that it is not open to the parties, who have taken the benefit of the settlement to turnaround and contend that the settlement is not binding upon him.
Another point raised on behalf of the appellant is that he approached the Labour Court under Section 33C (2) of the Industrial Disputes Act, 1947 for declaration that the second VRS under which better benefits have been given to other workers, should be given to him.
The learned Single Judge rightly declined to entertain the application as only in the event that there is an award or a settlement, under which a workman is entitled to the benefit, the same could be entertained under Section 33C (2).
On this ground also the order of the learned Single Judge cannot be faulted with.
For all the aforesaid reasons, we do not find any merit in this appeal and the same is dismissed.
(A.P. Sahi, J.) (F.I. Rebello, C.J.) Order Date :- 8.10.2010 Akv/AHA