Court No. - 39
Case :- WRIT - C No. - 54573 of 2013
Petitioner :- U.P. State Road Transport Cor. Thru Regional Manager
Respondent :- Ramkhelawan Verma And 2 Others
Counsel for Petitioner :- Anubhav Chandra,Amit Manohar,Anuj Srivastava,Sunil Kumar Mishra
Counsel for Respondent :- C.S.C.,Indra Raj Singh
Hon'ble B. Amit Sthalekar,J.
Heard Sri Devaang Savle, learned counsel for the petitioner and Sri Indra Raj Singh, learned counsel for the respondent no. 1.
The petitioner which is U.P. State Road Transport Corporation is seeking quashing of the order dated 04.09.2012 passed by the Labour Court in Adjudication Case No. 45 of 2006 as well as reference order dated 29.03.2006.
The case of the respondent no. 1 was that he joined U.P. State Road Transport Corporation on 14.09.1965 and was regularized in service on the post of Conductor on 01.06.1972. He was promoted as Booking Clerk on 18.7.1974 and further as Senior Clerk. Thereafter, he retired from the post of Senior Clerk on 31.7.2003. Much after his retirement, the respondent no. 1 raised an industrial dispute in the year 2006 claiming that he should have been granted the designation of Office Assistant Grade-II instead of Booking Clerk. The Labour Court adjudicated the matter and by its award dated 04.09.2012 has declared that the respondent no. 1 was entitled to have been granted the designation of Office Assistant Grade-II along with salary of that period.
Contention of the learned counsel for the petitioner is that in the rejoinder statement which has been filed on behalf of the petitioner Corporation in the proceedings before the Labour Court a specific plea was taken that the claim set up by the respondent no. 1 was a stale claim as he had been promoted as booking clerk on 18.07.1974 whereas he has raised the dispute with regard to grant of promotion and pay scale of the post of Office Assistant Grade-II only in the year 2006 that too, much after his retirement in the year 2003.
Copy of the rejoinder statement has been filed with the writ petition as annexure-5 and a perusal of the same shows that in para 5 thereof, the petitioner department had even referred to the judgement of the Supreme Court on the point that a stale claim cannot be entertained even if no period of limitation has been prescribed in a reference application under Section 4K of the Industrial Disputes Act. In fact what is noticed is that in the impugned award, the Labour Court has not at all applied its mind to the plea of the petitioner department that the claim set up by the respondent no. 1 was a stale claim. The Labour Court has not even bothered to examine the judgement of the Supreme Court in the case of Nedungadi Bank Limited vs. K.P. Madhavankutty and others, 2000 (2) SCC 455 and judgement of this Court in the case of Regional Manager, U.P. State Road Transport Corporation vs. Siddiq Khan and others, (2002) 5 AWC 3577 All. What to say it has not even referred to these judgements in the award. In para 6 of the judgement the Supreme Court in the case of Nedungadi Bank Limited (Supra) has held as under :
"6. Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act It is not that this power can be exercised at any point of time and to revive matters which had since been settled Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject- matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time When the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent.
In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become industrial dispute and appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. Central Government lacked power to make reference both on the ground of delay in invoking the power under section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question"
The Supreme Court in para 8 of the same judgement has further held that if the reference itself is illegal, writ petition would be maintainable and the High Court would be entitled to examine the validity of the reference order. The relevant extract of the judgement reads as under :
"8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that it is certainly subject to judicial review limited though it might be. High Court can exercise its powers under Article 226 of the Constitution to consider the question of very jurisdiction of the Labour Court. In national Engineering Industries Ltd.
v. State of Rajasthan, (1999) 9 SC 377 this Court observed :
"It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the industrial dispute, which could be examined by the High Court fa its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference."
From the above, I find that the reference made on 29.03.2006 with respect to a claim for grant of benefit of promotion on the post of Office Assistant Grade-II with effect from the date when the respondent no. 1 was promoted as Booking Clerk on 18.07.1974 was itself a stale claim having been raised after more than 32 years and that too almost three years after his retirement and therefore, such a reference was itself illegal and void.
For the reasons aforesaid, the impugned reference order dated 29.03.2006 as well as the order of the Labour Court dated 04.09.2012 are quashed.
The writ petition is allowed. Order Date :- 22.2.2019 nd