Court No. - 6
Case :- WRIT - C No. - 26684 of 2021 Petitioner :- U.P State Road Transport Corporation Respondent :- Surendra Pal Singh And Another Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- C.S.C.,Gopal Narain Srivastava,Shobhna Srivastava
Hon'ble Ajay Bhanot,J.
1. The petitioner has assailed the award passed by the learned labour court on 02.07.2021 (published on 15.07.2021).
2. Shri Rahul Agarwal, learned counsel for the petitioner-employer contends that the reference was highly belated and void ab initio. Further the respondent workman has already availed his remedy before this Court and had instituted a writ petition against the notice of termination which was registered as Writ A No. 25125 of 2002, (Kanwar Pal Singh and others Vs. R. M. U.P. State Road T.C. Meerut and another). The said writ petition was dismissed for non prosecution on 01.03.2011. Reliance is placed on the law laid down in Nedungadi Bank Ltd. Vs. K. P. Madhavankutty and others1.
3. The submission of Shri Gopal Narain Srivastava, learned counsel for the respondent-workman is that 1 2000 (2) SCC 455 the reference may be made even after an inordinate delay since no limitation is provided for the same.
4. The undisputed facts necessary for adjudication of the controversy are in a narrow compass.
5. The services of the respondent-workman were terminated w.e.f. 30.06.2002 by order dated 01.06.2002. The reference under the U.P. Industrial Disputed Act, 1947, was made in the year 2016.
6. The petitioner employer has been prejudiced beyond recall on account of the delay in the reference. Evidence was irretrievably lost to time and memory due to the delay on part of the respondent workman. These facts could not be disputed by the learned counsel for the respondent workman. There was no industrial dispute which existed on the date of the reference.
7. The law is well settled that the time period for accomplishing the act is not stipulated in the enactment, the act has to be executed in a reasonable period of time. Rip Van Winkles have a place in literature, but not in law.
8. Constitutional courts have set their face against belated references as such references defeat the purpose of the Act and do not contribute the industrial peace.
9. In Nedungadi Bank (supra), while determining the consequences of a delayed reference, it was held that such reference itself was destructive of industrial peace:
"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 a lapse of about seven years of the 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 an industrial dispute was ex facie bad and incompetent.
7. 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 an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The 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. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question."
10. More recently learned Single Judge of this Court Munir, J. in State of U.P. and another Vs. Presiding Officer Labour Court and another2, has dealt with the issue in a scholarly fashion and has held that inordinate delay in making a reference is being fatal to the cause for the workman.
11. The submission of Shri Gopal Narain Srivastava, learned counsel for the respondent workman that the reference can be made after indefinite delay is thus liable to be rejected without much ado.
12. The judgments relied upon by Shri Gopal Narain Srivastava, learned counsel for the respondent workman do not lay down a blanket proposition of law that the delay of any length has to be condoned by the court. Further it is noticeable that the respondent workman was trying to pursue two 2 2021 (7) ADJ 670 remedies and has approached the labour court after his writ petition was dismissed for non prosecution.
13. Shri Gopal Narain Srivastava, learned counsel for the respondent workman submits that the respondent workman approached the labour court on bonafide legal advice. The alternative submission is that the respondent workman may be granted liberty to file restoration application in Writ C No. 25125 of 2002, Kanwar Pal Singh and others Vs. R. M. U.P. State Road T.C. Meerut and another).
14. It is open to the respondent workman to file a restoration application in Writ C No. 25125 of 2002, Kanwar Pal Singh and others Vs. R. M. U.P. State Road T.C. Meerut and another) and seek appropriate relief, if so advised.
15. In wake of the preceding discussion, the impugned award dated 02.07.2021 passed by the learned labour court published on 15.07.2021 and all consequential orders are liable to be set aside and are set aside.
16. The writ petition is allowed.
Order Date :- 25.10.2021 Dhananjai