High Court · 2012

Judgment

1. Whether the management of the tea estate was justified in dismissing the 28 workmen from service?

2. If not, whether the said workmen are entitled to reinstatement with full back wages and other benefits or any other reliefs in lieu thereof?

4. On the basis of the same, Reference Case No.13 of 1986 was regis tered. At that stage, the cause of the dismissed workmen was represented by the Assam Chah Mazdoor Sangha (proforma respondent herein). On 21-05-1987, there was no representation on behalf of the workmen. Taking the view that they were not interested in the case, the learned Labour Court passed an award of even date ho lding that there was no cause for the reference made.

According to the workmen, in the first week of February, 1999, t 5. hey came to know about the above order of the Labour Court. During this period, the workmen had to defend a criminal case initiated at the instance of the manag ement, being GR Case No.163 of 1984 u/s 147/342/323/325/448/149 of the Indian Pe nal Code (IPC) before the learned Judicial Magistrate, Tinsukia. All the workmen were acquitted in the said criminal case vide the judgment and order dated 29-0 6-1998. The workmen were highly aggrieved at the inaction of the proforma respon dent, who according to them, did not properly pursue their case. Subsequently, t he appellant union came forward to espouse the cause of the workmen.

6. The appellant union then filed W.P.(C) No.5156/2000 before this Court seeking a direction to revive the Reference Case No.13 of 1986 for adjudic ation on merits. The said writ petition was admitted and was pending before this Court when the Government of Assam issued a notification on 11-10-2004 directin g the Labour Court to revive the Reference Case No.13/1986. In view of the said development, the appellant union withdrew the writ petition on 16-11-2005. Thereafter, the learned Labour Court issued notice to the partie 7. s where upon both the sides appeared and filed their respective written statemen ts. By order dated 06-12-2005, the learned Labour Court held that the reference case should be revived and that it should be adjudicated afresh in presence of b oth the parties as the industrial dispute still subsists.

8. Against the aforesaid order dated 06-12-2005 and the Government notification dated 11-10-2004, the respondent management filed W.P.(C) No.1768/2 006. As noticed above, the learned Single Judge by the judgment and order dated 04-05-2010 allowed the said writ petition by setting aside and quashing the abov e notification dated 11-10-2004 and the order of the learned Labour Court dated 06-12-2005. Hence this appeal by the appellant union.

9. ion as well as Mr. D.Baruah, learned counsel for the respondent management. Heard Ms. A. Bhattacharyya, learned counsel for the appellant un

10. Learned counsel for the appellant referring to the definition of award under the Act, submits that the order of the learned Labour Court dated 2 1-05-1987 is no award in the eye of law. She further submits that no time frame has been laid down in the Act for making a reference and that the Government has the power to revive a reference so long the dispute exist. She prays for interf erence with the judgment of the learned Single Judge as all that the appellant s eeks is a decision of the industrial dispute on merit. She has placed reliance o n the following decisions in support of her argument :- (1) , AIR 1977 SC 1666; (M/S Cox and Kings Ltd. -vs- Their workmen and others) (2) Board and Ors.), and AIR 2001 SC 2562; (Sapan Kumar Pandit -vs- U.P. State Electricity (3) (2002) 9 SCC 104; (Virendra Bhandari -vs- Rajasthan SRTC).

11. Learned counsel for the respondent management on the other hand reiterates the submissions made before the learned Single Judge. Referring to va rious provisions of the Act, learned counsel submits that the referred industria l dispute having culminated in the passing of the award, which has attained fina lity, can neither be revived nor the impugned Government notification be treated as a second reference. Placing strong reliance on the decision of the Hon’ble S upreme Court in the case of State of Bihar -vs- D.N.Ganguly and others (AIR 1958 SC 1018), he prays for dismissal of the writ appeal.

12. ation of the Court. The rival submissions have received the due and anxious consider

13. ed Single Judge may be briefly summarized, which are as follows :- 1. Passing of no dispute award may not amount to specific determination of the dispute referred but nevertheless, it has to be construed as an award within To arrive at a just decision, the final conclusions of the learn the meaning of section 2(b) of the Act.

2. Since the reference stood concluded with the passing of the award on 21- 05-1987 which attained finality by its subsequent publication u/s 17 and by appl ication of section 17A of the Act, the order of the Government for revival of th e reference was beyond its jurisdiction.

3. Since the reference stood concluded with the passing of the award and at tained finality by its subsequent publication and by application of section 17A of the Act, making of a second reference on the same dispute is not permissible. The Labour Court had become functus officio after passing of the award o 4. n 21-05-1987 and, therefore, there was no legal justification for passing the or der dated 06-12-2005 declaring that the reference would be adjudicated afresh on the strength of the Government order for revival of the reference.

5. The workmen were not vigilant about their dispute. The award dated 21-05 -1987 remained undisturbed for nearly 17 years till the Government ordered for r evival on 11-10-2004. The explanation for the delay was considered not satisfact ory.

14. Since the finding Nos. 1 to 4 are interrelated, those are taken up for consideration together. Section 2(b) of the Act defines (cid:28)award (cid:29), which m eans an interim or a final determination of any industrial dispute or of any que stion relating thereto by any Labour Court etc. and includes an arbitration awar d made u/s 10A of the Act. A reading of the aforesaid definition would indicate that firstly, there must be an industrial dispute and secondly, there has to be a determination of such industrial dispute or of any question relating thereto, either as an interim measure or in final form. The crucial word here is determin ation. In the context of the definition adverted to above, according to our unde rstanding, it would mean or imply a decision on the dispute after considering th e facts. This view finds support from section 10(8) of the Act. Section 10 of th e Act provides for making of a reference which we will deal with separately in t he later part of this judgment. For the present purpose, we may indicate that un der the said provision, no pending proceeding before a Labour Court or Tribunal in relation to an industrial dispute shall lapse merely by reason of the death o f the workman and even when the workman dies, the proceeding should be completed and the award submitted to the appropriate Government.

15. In this connection, Rule 22 of the Industrial Disputes (Central) Rules, 1957 ( (cid:28)Rules (cid:29) hereafter) may also be looked into. Rule 22 provides that if without sufficient cause being shown, any party to a proceeding before the La bour Court etc. fails to attend or to be represented, the Labour Court etc. may proceed as if the party had duly attended or had been represented. In other word s, in such a situation the reference before the Labour Court is to proceed, albe it ex-parte. A conjoint reading of the aforesaid provisions clearly indicates th at the industrial dispute which is the subject matter of the reference is requir ed to be adjudicated upon even in the absence of the parties and such adjudicati on must be on merit. The Karnataka High Court has consistently taken the view that th 16. e rejection of reference for default of the workman cannot be called an (cid:28)award (cid:29) within the meaning of section 2(b) of the Act [MANU/KA/0077/1998]. The Calcutta High Court [MANU/WB/0434/2001], taking a similar view, has held that as (cid:28) no dis pute award (cid:29) is passed without determination of an industrial dispute or of any q uestion relating thereto, such award cannot have existence in the eye of law. Si milar is the view of the Bombay High Court and the Andhra Pradesh High Court [AI R 1960 Bom 29 and AIR 1964 AP 363].

17. The Hon’ble Supreme Court in the case of M/s Cox and Kings (supr a) has held that in order to be an award within the meaning of section 2(b) of t he Act, the determination must be an adjudication of the issue referred and such adjudication must be one on merits. Paragraph 26 of the said judgment, which is relevant, reads as follows :- Sub-section (1) of Sec.10 indicates when and what matters can be referre (cid:28)26 d to the Labour Court for adjudication. The sub-section expressly makes formatio n of opinion by the appropriate Government (cid:28)that any industrial dispute exists o r is apprehended (cid:29) a condition precedent to the exercise of the power of making a Reference. Sub-section (4) gives a mandate to the Labour Court to confine its a djudication to those points of dispute which have been specified in the Order of Reference, or are incidental thereto. From a conjoint reading of Cl.(b) of Sec. 2 and sub-ss (1) and (4) of S.10, it is clear that in order to be an ’award’ wit hin the second part of the definition, a determination must be - (i) an adjudica tion of a question or point relating to an industrial dispute which has been spe cified in the Order of Reference or is incidental thereto, and (ii) such adjudic ation must be one on merits (cid:29).

18. In the said judgment, the view taken by the Allahabad High Court that the finding of the Labour Court that the matter referred to it was not an industrial dispute was itself a determination of the question referred and would fall within the definition of the term (cid:28)award (cid:29) under the Act was not accepted b y the Hon’ble Supreme Court, holding the same to be not a correct statement of t he law on the point.

19. Therefore, the preponderance of judicial opinion and the authora tive pronouncement of the Hon’ble Supreme Court makes it abundantly clear that t o be an award within the meaning of section 2(b) of the Act, there must be an ad judication of the industrial dispute referred on merits, even though it may be a n ex-parte one.

20. In view of what has been discussed above, we are unable to veer around to the view expressed and the conclusion reached by the learned Single Ju dge that the order of the Labour Court dated 21-05-1987 is an award within the m eaning of section 2(b) of the Act and that the reference made on 28-10-1986 stoo d concluded by passing of such award, thereafter by its publication u/s 17 and b y application of section 17A of the Act. When it is not an award, the question o f it becoming final or conclusive by application of sections 17 and 17A of the A ct does not arise.

21. In Virendra Bhandari (supra), the Apex Court has held that when there is no adjudication of the matter on merits, it cannot be said that the ind ustrial dispute does not exist. If the industrial dispute still exists as is opi ned by the appropriate Government, such a matter can be referred u/s 10 of the A ct. This is what the Apex Court said in paragraph 4 of the said judgment:- (cid:28)4. A perusal of the award made on the earlier occasion will clearly indicate th at there is no adjudication of the dispute at all. All that was stated was that the parties concerned had not appeared before the Tribunal and in such an event, the Tribunal should have noted its inability to record the finding on the issue referred to it, not that the dispute itself does not exist. When there is no ad judication of the matter on merits, it cannot be said that the industrial disput e does not exist. If the industrial dispute still exists as is opined by the Gov ernment such a matter can be referred under Section 10 of the Industrial Dispute s Act. What is to be borne in mind in proceedings of this nature is that the ind ustrial disputes are referred to the Labour Court or the Industrial Tribunal for maintenance of industrial peace and not merely for adjudication of the dispute between two private parties. That aspect seemed to have been lost sight of by th e Tribunal on the first occasion and by the High Court in the order under appeal . In this background, it was certainly permissible for the Government to have ma de the second reference on which occasion after inquiring into the mater, the Tr ibunal adjudicated the matter finally (cid:29).

22. In the instant case, the appropriate Government was of the opini on that the industrial dispute earlier referred still exists and therefore calle d for its revival. When a reference is made by the appropriate Government, there is always the presumption that the industrial dispute exists or is apprehended. When such a reference is not adjudicated upon on merits, there is no award in t he eye of law notwithstanding (cid:28)disposal (cid:29) of the reference by passing a (cid:28)no dispu te award (cid:29) and publication of the same. Therefore, in such a situation, there wou ld be no bar for the appropriate Government either to seek a revival of the refe rence or to make a second reference. When the industrial dispute remains open fo r adjudication, the question of the Labour Court becoming functus officio does n ot arise.

23. The learned counsel for the respondent management has pressed in to service the decision of the Hon’ble Supreme Court in the case of State of Bih ar (supra) in support of his argument that the reference proceeding would be dee med to have concluded on the day on which the award made by the Labour Court bec omes enforceable u/s 17A of the Act and that thereafter it would not be open for the appropriate Government to make a second reference on the same set of facts or to seek reopening of the concluded reference. It may be mentioned that the qu estion which fell for consideration before the Hon’ble Supreme Court in that cas e was where an industrial dispute has been referred to a tribunal for adjudicati on by the appropriate Government, can the said Government supersede the said ref erence pending adjudication before the tribunal. In that context, the Hon’ble Su preme Court held that no such power to cancel or supersede a reference is vested in the appropriate Government. However, the question as to whether a (cid:28)no disput e award (cid:29) passed by the tribunal or the Labour Court is really an award within th e meaning of section 2(b) of the Act and in a situation where a (cid:28)no dispute awar d (cid:29) has been passed, whether the appropriate Government can seek revival of the r eference or make a second reference on the same subject matter did not come up f or consideration before the Apex Court. Therefore, the reliance placed by the le arned counsel for the respondent management on this judgment is misplaced and th e argument so advanced cannot be accepted.

24. ng Nos. 1 to 4 of the learned Single Judge and those are hereby set-aside. For all the aforesaid reasons, we are unable to accept the findi

25. e finding No.5 arrived at by the learned Single Judge. That brings us to the question of delay relatable to which is th

26. Section 10 of the Act provides for making a reference of industr ial disputes to a Board of Conciliation, Labour Court or Industrial Tribunal. To be more specific, section 10(1)(c) says that where the appropriate Government i s of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be co nnected with or relevant to the dispute to a Labour Court for adjudication. A ca reful reading of the said provision would show that no period of limitation has been prescribed for making a reference u/s 10 of Act. The phrase (cid:28)at any time (cid:29) a ppearing in that section is co-relatable to the existence or apprehension of an industrial dispute in the opinion of the appropriate Government. Therefore, as l ong as in the opinion of the appropriate Government, an industrial dispute exist s or is apprehended, it would be within the competence of the appropriate Govern ment to make a reference u/s 10 of the Act. The primary focus of the said section or rather of the Act as a 27. whole is the existence or apprehension of an industrial dispute, which is the si ne qua non for making the reference, without any limitation of time. Therefore, the legislature has purposefully used the words (cid:28)at any time (cid:29) which would mean t hat as long as an industrial dispute exists or is apprehended, the referral orde r can be made.

28. In Ajaib Singh -vs- Sirhind Cooperative Marketing-cum-Processing Service Society Limited and another; reported in (1999) 6 SCC 82 while re-stati ng the objective of the Act, the Hon’ble Supreme Court held that the provisions of the 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 groun d of delay. This is what their lordships held in paragraph 10 of the said judgme nt - (cid:28) & & &.The plea of delay if raised by the employer is required to be proved as a m atter of fact by showing the real prejudice and not as a merely hypothetical def ence. No reference to the Labour Court can be generally questioned on the ground of delay alone.(emphasis is ours). Even in a case where the delay is shown to b e existing, the tribunal, labour court or board, dealing with the case can appro priately mould the relief & &.. (cid:29)

29. It was a case where the High Court had interfered with the award of the Labour Court directing reinstatement on the ground that the workman was not entitled to any relief as he had allegedly slept over the matter for 7 years .

30. In the case of Sapan Kumar Pandit (supra), heavily relied upon b y the learned counsel for the appellant, the concerned workman was terminated fr om service on 17-07-1975 and the reference was made by the State Government on 2 9-03-1993, that is after 18 years. The order of reference was quashed by the All ahabad High Court on the ground that the delay was so inordinate that the disput e had ceased to exist by afflux of time. Considering the version put forward by the workman, the Apex Court held as under :- (cid:28)8. The above section is almost in tune with Section 10 of the Industrial Disput es Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time limit is fixed for making the reference for a dispute for adjudication, could any State Government revive a di spute which had submerged in stupor by long lapse of time and re-kindled by maki ng a reference of it to adjudication? The words (cid:28)at any time (cid:29) as used in the sec tion are prima facie indicator to a period without boundary. But such an interpr etation making the power unending would be pedantic. There is inherent evidence in this sub-section itself to indicate that the time has some circumscription. T he words (cid:28)where the Government is of opinion that any industrial dispute exists or is apprehended (cid:29) have to be read in conjunction with the words (cid:28)at any time (cid:29). They are, in a way, complimentary to each other. The government’s power to refer an industrial dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exits. In other words, the perio d envisaged by the enduring expression (cid:28)at any time (cid:29) terminates with the eclipse of the industrial dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government it is idle to ascertain th e number of years which elapsed since the commencement of the dispute to determi ne whether the delay would have extinguished the power of the Government to make the reference.

9. Hence the real test is, was the industrial dispute in existence on the date o f reference for adjudication ? If the answer is in the negative then the Governm ent’s power to make a reference would have extinguished. On the other hand, if t he answer is in positive terms the Government could have exercised the power wha tever be the range of the period which lapsed since the inception of the dispute . That apart, a decision of the government in this regard cannot be listed on th e possibility of what another party would think whether any dispute existed or n ot. The section indicates that if in the opinion of the Government the dispute e xisted then the Government could make the reference. The only authority which ca n form such an opinion is the government. If the government decides to make the reference there is a presumption that in the opinion of the government there exi sted such a dispute (cid:29).

31. In the present case, since there was no resolution of the indust rial dispute on merits, therefore, the appropriate Government took the view that the reference should be revived for a decision on merits. As pointed out by the Hon’ble Supreme Court, when a reference is made, there is a presumption that in the opinion of the Government there existed such a dispute. Such presumption st ood fortified by the finding of the jurisdictional fact arrived at by the learne d Labour Court that the referred industrial dispute exists and should be adjudic ated upon on merits. Learned Single Judge is right in observing that industrial dispu 32. tes are not expected to linger indefinitely and should be concluded within reaso nable time and that stale and belated claims should not be entertained. But at t he same time, it must be borne in mind that under the scheme of the Act, the pri mary focus is on the existence or apprehension of the industrial dispute. Once t his primary jurisdictional fact is ascertained / decided in the affirmative, the delay, if any, in making the reference or in seeking to revive the reference or in making the second reference (when the reference was earlier not adjudicated on merits) becomes immaterial. The question of delay and the effect of such dela y on the adjudication of the industrial dispute or the prejudice caused to eithe r of the parties on account of the delay are matters to be gone into by the Labo ur Court at the time of adjudication of the industrial dispute. But this could n ot be the ground for aborting the reference proceeding on the hypothetical assum ption that it would result in non-availability of relevant witness. As pointed o ut above, that is a matter for the adjudicatory authority to decide.

33. When the appropriate Government is of the view that the industri al dispute exists and should be decided on merits, which presumption stood forti fied by the decision of the learned Labour Court, it would not be proper for the writ Court to step in and prevent the Labour Court from adjudicating on it on t he assumption that because of delay the industrial dispute has ceased to exist. Had the appropriate Government declined to make the revival order on the ground of delay or the learned Labour Court declined to adjudicate on the reference on the ground that because of the delay, the industrial dispute has ceased to exist , the matter would have been altogether different. But that is not the case here . The fight between the workman and the management is a fight of u 34. nequals. The Act seeks to rectify the situation by putting the two on equal foot ing. The object of the Act, as has been noticed above, is not only confined to t he resolution of the dispute between the two warring groups but to achieve indus trial peace and harmony which will result in increased industrial productivity a nd in the ultimate analysis lead to prosperity of the country. The Act is a soci al piece of legislation intended to safeguard the interest of the vulnerable wor kman but at the same time to ensure that there is no dislocation in the industry where the labour is also an equally important stake holder. Keeping the above i n mind, the version of the workmen explaining the delay needs to be considered a nd appears to us to be a plausible one. The dismissed workmen belong to the tea tribe community which is one of the most marginalized sections of the society. T heir appalling living condition is well documented and needs no reiteration. For them it is a daily grind for survival. In this case, they were initially repres ented by the proforma respondent which badly let them down. In the meanwhile, th ey were defending themselves in the related criminal case from which they were u ltimately acquitted in 1998. But their acquittal did not help them to get back t heir jobs when they realized what had happened before the Labour Court. It was a t that stage that the appellant union stepped in and filed the writ petition in the year 2000.

35. No doubt there is delay. But when the appropriate Government is of the opinion that the industrial dispute exists, when the learned Labour Court has recorded a finding of jurisdictional fact that the industrial dispute exist s and should be adjudicated upon and when the workmen have asserted that the ind ustrial dispute exits, there would be no justification to assume that because of the delay, the industrial dispute has ceased to exist.

36. ge is interfered with. In view of the above, the finding No.5 of the learned Single Jud

37. Consequently, the judgment and order of the learned Single Judge dated 04-05-2010 is hereby set aside. The learned Labour Court, Dibrugarh shall now proceed with the adjudication of Reference Case No.13/1986 with utmost expe dition and complete the same preferably within a period of 4 months from the dat e of appearance of the parties. The parties shall appear before the learned Labo ur Court on 21-05-2012 for necessary orders.

38. No cost.