VIJAY KUMAR, Age About 48 years, S/O Sri Harihar Yadav, Executive Member of Central v. 1. Union of India 2. The Secretary, Ministry of Labour and Employment, Government of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 5632 of 2021 VIJAY KUMAR, Age About 48 years, S/O Sri Harihar Yadav, Executive Member of Central Committee of Jharkhand Colliery Shramik Union, Tettulia Colliery, R/O Malkera, P.O. + P.S. Malkera, District- Dhanbad, Jharkhand-828304. Petitioner … … Versus 1. Union of India 2. The Secretary, Ministry of Labour and Employment, Government of India, having its office at Shram Shakti Bhawan, Rafi Marg, P.O. and P.S. New Delhi, New Delhi 110 001 3. The General Manager, M/s Bharat Coking Coal Limited, having its office at Barora Area No. 1 of M/s BCCL, P.O. Nawagarh, P.S. Nawagarh District-Dhanbad, Jharkhand-828306 4. The Assistant Labour Commissioner, Dhanbad, having its office at Steel Gate Road, Shram Bhavan, Murli Nagar, Jagjiwan Nagar, P.O. Saraidhela, P.S. Saraidhela, District-Dhanbad, Jharkhand-826003 … … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner --- For the Respondent-BCCL For the UoI For the State --- :Mr. Amitesh Kumar Geasan, : Mr. Anuj Kumar Trivedi : Mr. Rahul Kumar Gupta, Advocates, (In all cases) : Dr. Ashok Kumar Singh, Advocate : Mr. Shiv Kumar Sharma, Sr. Panel Counsel : Ms. Rishi Bharti, A.C. to AAG-III 12/10th December 2024 1. This writ petition has been filed for the following reliefs: “(i) For quashing the order dated 13.03.2019 (Annexure-9) passed by the Respondent No. 2 whereby and whereunder the Respondent No. 2 have held that the dispute raised by Mangla Ravidas for adjudication on the ground of delay of 14 years without considering the facts and circumstances of the dispute raised by the Petitioner; for compassionate appointment is not fit 1 And (ii) for a direction upon the respondent no. 3 to grant compassionate appointment to Mangla Ravidas as raised by the Petitioner. AND/OR (iii) Pass such other or further order(s) as may be deemed fit and proper in the facts and circumstances of the case.” Arguments of the petitioner 2.
Legal Reasoning
Learned counsel for the petitioner has submitted that the death of ex-employee is dated 06.07.2002. The petitioner raised a dispute claiming compassionate appointment on 19.09.2016 and by the impugned order, the Authority has refused to refer the dispute for adjudication. 3. The learned counsel for the petitioner has submitted that by the impugned order the government has refused to refer the dispute for adjudication. He has submitted that there is no time period prescribed for reference and therefore the Authority had no other option but to refer the dispute for adjudication in terms of Section 10 of the Industrial Disputes Act. He has referred to the judgment passed by the Hon’ble Supreme Court in the case of Kuldeep Singh versus G.M. Instrument Design Development and Facilities Centre and Anr. decided on 03.12.2010 passed in Civil Appeal No. 10231 of 2010 and submitted that in the said judgment also, it has been held that there is no prescribed time limit for appropriate government to exercise its power under Section 10 and if any industrial dispute exists or apprehended, the appropriate government at any time can refer the dispute for adjudication. 4. During the course of argument, no explanation has been furnished by the petitioner for not raising the dispute during the period from 31.01.2002 to 19.09.2016. However, the learned counsel for the petitioner submits that the law of limitation has no application so far as reference of dispute is concerned. 2 Arguments of the respondents 5. The learned counsel for the respondents Dr. Ashok Kumar Singh has submitted that Vijay Kumar has filed the present case in his individual capacity and the Union has not filed the case. Vijay Kumar is simply a member of the Union. It goes to show that Union as such is not aggrieved. 6. The learned counsel for the respondents has submitted that the impugned order does not call for any interference. Rejoinder argument of the petitioner 7. Learned counsel for the petitioner in response has submitted that a certificate dated 24.09.2024 has been annexed along with the rejoinder to show that Vijay Kumar was the authorized person to represent Jharkhand Colliery Shramik Union since 2014 and the said certification is as per the Section 36 of the Industrial Disputes Act. Findings of this Court Technical objection raised by the respondent. 8. So far as the technical objection raised by the learned counsel appearing on behalf of the respondents in connection with filing of case by Vijay Kumar instead of filing of the case by the Labour Union is concerned, this Court finds that certainly the case ought to have been filed in the name of Labour Union but the case has been filed by Vijay Kumar and at the same time it has been mentioned that he was the Executive Member of Central Committee of Jharkhand Colliery Shramik Union. A rejoinder affidavit has also been filed by the petitioner stating that Jharkhand Colliery Shramik Union is a registered Union having Registration No. 3487 of 1984 and a letter dated 24.09.2024 issued by the Working President of Jharkhand Colliery Shramik Union certifying that the petitioner has been the Executive Member (Central Committee) of Jharkhand Colliery Shramik Union and since 2014 he is authorized to represent and 3 conduct all cases on behalf of the workmen relating to labour matter before the State Labour Court and Jharkhand High Court etc. 9. Considering the aforesaid facts and circumstances, this Court is not inclined to dismiss the writ petition on the aforesaid technical ground raised by the learned counsel for the respondents. On the merits of this case. 10. The authority while refusing to refer the dispute for adjudication has cited following reasons: - "The Jharkhand Colliery Shramik Union raised the issue on 19.09.2016 relating to compassionate employment to Mangla Ravidas, dependent son of Late Fulia Kamin, Ex. CC Maker by the by the Management of Madhuban Colliery under Barora Area No.1 of M/S BCCL after passage of more than 14 years from the death of concerned workman, who expired on 06.07.2002. As such, the ID is highly belated. In this connection, the judgement of Supreme Court in Nedungadi Bank Ltd. Vs. K.P Madhvankutty has held that a dispute should be raised within a reasonable time.” 11. From perusal of the impugned order, it is apparent that the authority while refusing to refer the dispute for adjudication has cited following reasons: - (a) Dispute claiming compassionate appointment has been raised after more than 14 years from the death of concerned workman, who expired on 06.07.2002. (b) It is a highly belated case. (c) In the case of Nedungadi Bank Ltd. (supra) it has been held that the dispute regarding dismissal should be raised within reasonable time. 12. In the judgement passed by the Hon’ble Supreme Court in the case of Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455, it has been held that law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the 4 Industrial Dispute Act, 1947 to refer the dispute for adjudication but at the same time it is not that this power can be exercised at any point of time and to revive matters which had since been settled. It has been held that power is to be exercised reasonably and in a rational manner. It was found in the said case that there was no rational basis on which the Central Government had referred the dispute for adjudication after a lapse of about seven years of the order of dismissal from service and held that at the time reference was made no industrial dispute existed or could be even said to have been apprehended. It has also been held that a dispute which is stale could not be the subject-matter of reference under Section 10 of the Act and as to when a dispute can be said to be stale would depend on the facts and circumstances of each case. It was held that 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 also on the ground that no industrial dispute was existing or even apprehended. 13. In the judgment passed by the Hon’ble Supreme Court reported in (2015) 15 SCC 1 (supra), numerous judgments have been considered including the judgment of Nedungadi Bank (supra) and it has been held that the law of limitation does not apply to proceedings under Industrial Disputes Act, 1947 and the word “at any time” used in Section 10 would support that there is no period of limitation in making the order of reference, but at the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing / live dispute and has not become a stale claim and if that is so, the reference can be refused. In the said judgement, it has been held that the reference after fourteen years of termination without any justifiable explanation for delay was not maintainable and the appropriate Government had no jurisdiction or power to make reference of a non-existing dispute. The principle of law on the point has been summarized in paragraph 44 as under: - 5 “44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the “appropriate Government” to consider whether it is expedient or not to make the reference. The words “at any time” used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers’ financial arrangement and to avoid dislocation of an industry.” (emphasis supplied) The Hon’ble Supreme Court in the said judgement has considered the various circumstances which may arise to test as to whether the industrial dispute was existing or had become a stale claim and has held that relief can be denied on the ground of unexplained delay and laches and / or on presumption that the person had waived his right or acquiesced and also to safeguard industrial peace. As per provisions of Section 2A of the Industrial Disputes Act, the dispute relating to discharge, dismissal, retrenchment or termination of an individual are also deemed as industrial dispute and therefore an individual is given right to raise these disputes. While examining the matter regarding laches, delays and acquiescence, it has been held that it is well recognized principle of jurisprudence that a right not exercised for a long time is non-existent and delay defeats equities. 14. In the judgment passed by the Hon’ble Supreme Court reported in (2008) 17 SCC 627 (U.P. State Road Transport Corporation V. Ram Singh and Another), it has been observed that in several decisions it has been held that while delay cannot by itself be a sufficient reason to reject the Industrial Dispute nevertheless the delay cannot be unreasonable and while holding so it has been held that the 6 reason for diligence and promptness lies in the fact that the records pertaining to an employee might have been destroyed and it would be difficult to obtain witnesses who would be competent to give evidence so many years later, if the Labour Court wishes to hold a further enquiry into the matter. In the said case, the delay of 13 years was held to be unreasonable. The Hon’ble Supreme Court also observed that mere fact that the respondent of the case was making repeated representations would not justify his raising the issue before the Labour Court after 13 years and in that case the last representation was made in 1983 and the industrial dispute was raised in the year 1986. The Hon’ble Supreme Court observed that lack of diligence on the part of the respondent in the said case was apparent. 15. In the judgment passed by the Hon’ble Supreme Court in the case of Kuldeep Singh versus G.M. Instrument Design Development and Facilities Centre and Anr. (supra) reported in (2010) 14 SCC 176, the reference was made to the learned Labour Court for adjudicating the industrial dispute and all the issues were decided in favour of the workman. However, the labour court while answering the reference refused to grant relief to the concerned workman on the ground of delay in raising the demand and gave a finding that the reference itself was bad and incompetent being raised belatedly. In the aforesaid factual back ground when the dispute was referred and the reference was answered after evidence but relief was denied by stating that the reference itself was stale, the Hon’ble Supreme Court found that after prolonged correspondences the reference was made for adjudication under Section 10(1) of the Industrial Disputes Act and the labour court on appreciation of oral and documentary evidence decided all issues in favour of the workman but refused to grant relief by holding that the workman had raised the demand of reference after more than 5 ½ years of his termination and had not offered plausible and convincing explanation. The Hon’ble Supreme Court in paragraph 7 31 observed that once the reference is made, it is presumed that the State Government was satisfied with the ingredients of provisions of Section 10 and hence the labour court cannot go behind the reference and that the satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. The Hon’ble Supreme Court referred to the various judgments in connection with delay in making the reference including the judgment passed in the case of Nedungadi Bank Ltd. (supra) and summarized the law on the point and ultimately held that normally the government cannot deny for making reference for the latches committed by the workmen and if adequate reasons are shown, the government is bound to refer the dispute to appropriate court or forum for adjudication. It has also been held that if sufficient materials are not put forth for enormous delay, it would certainly be fatal. The Hon’ble Supreme Court was satisfied with the explanation offered by the workman for delay in raising the dispute and the finding of the labour court holding that the reference itself was bad and incompetent on account of delay in raising the dispute was set-aside. 16. The ratio of the aforesaid judgement is not supporting the case of the concerned workman in this case as there is no explanation from the side of the workman or the union for enormous delay in raising the dispute and further the State Government has applied its mind and has refused to refer the dispute for adjudication stating it to be stale. 17. In the present case , the impugned order dated 13.03.2019 was issued referring to the failure of conciliation report dated 31.01.2019 observing that the ministry did not consider the dispute fit for adjudication on account of the reason that from the date of death of the deceased employee more than 14 years had lapsed and it was not reasonable to raise the dispute after a long period and the dispute was stale and highly belated and reference was made to the judgment 8 passed by the Hon’ble Supreme Court reported in the case of Nedungadi Bank Ltd. V. K.P. Madhavankutty, (2000) 2 SCC 455 . 18. Admittedly, the employee while in service expired on 06.07.2002 and the legal heir of the deceased employee had raised the dispute claiming compassionate appointment vide letter dated 19.09.2016. 19. The perusal of the writ petition and also the documents on record reveals that there is no explanation for not raising the claim/ dispute regarding compassionate appointment after the death of the deceased employee, who expired on 06.07.2002. This Court finds that there was complete lack of diligence and promptness from the side of the legal heir of the deceased employee to either raise claim/dispute or to approach the Union to raise such dispute. 20. The appropriate government in the present case has recorded its subjective satisfaction while declining to refer the dispute for adjudication on the ground that the dispute is belated, stale and without any reasonable explanation and the delay is enormous. This Court finds that the exercise of power by the government is sound and based on materials and no ground has been made out to interfere with the impugned decision/order. 21. In view of the aforesaid findings, there is no merit in this writ petition, which is hereby dismissed. 22. Pending interlocutory application, if any, is closed. Mukul (Anubha Rawat Choudhary, J.) 9