# Executive Engineer E. Dist. Division & Ors v. Presiding Officer Labour Court & Ors

- **Citation:** (2019) 3 ILRA 1413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Writ C No. 48556 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/executive-engineer-e-dist-division-ors-v-presiding-officer-labour-court-ors-44756
- **Pages:** 14

## Headnote

A. Labour law - Delay - Limitation to
raise an Industrial Dispute - It is true
that going by the law, no limitation is
prescribed, but stale claims where the
industrial dispute may no longer actually
exist, would be something upon which
the law would frown - Dispute should be
referred as soon as possible after it has
arisen and upon conciliation proceeding
have failed - If sufficient material is not
put forth for a long delay, it would
certainly be fatal - Labour Court illegally
failed to examine the claim, which was
grossly belated by delay of 21 years.
(Para 24, 25 & 26)
B Industrial dispute - Suppression of
material fact - Earlier workmen moved
proceeding before Conciliation officer
u/s 2-A and also filed Writ petition and
Special Appeal before High Court for his
reinstatement, which were dismissed -
Held
suppression
of
these
facts
constitute
material
which
if
placed
before the authority - strong probability
exists,
it
would
have
swayed
the
subjective satisfaction of the authority
the other way. (Para 27, 28 & 29)
C. Industrial dispute - Perversity in
finding given by Labour Court - Plea of
discrimination by workman claiming that
similarly circumstanced workmen was
reinstated,
is
incredible
as
other
workmen,
claimed
to
be
similarly
situate, was reinstated in compliance of
a judicial order, not by an act of
employer - Held, finding of Labour Court
is perverse and hence award of Labour
Court is illegal. (Para 32 & 33)
Writ petition allowed with costs (E-1)
Case law relied on: -

## Text

_Characters 0–39,762 of 47,445. This is a partial read: ask again with offset=39762 for what follows._

3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1413
issued by the Central Government in
exercise of powers conferred under
Section 1 (3) (c) the same would be
applicable to the employees governed by
Regulations 1990 in the absence of any
exemption notification having been issued
with
regard
to
the
petitionerestablishment under Section 5 and it will
have an overriding effect by virtue of
Section 14 over any scheme which is less
favourable to the said employees.

72. Counsel appearing for the
petitioner has not been able to dispute the
aforementioned legal proposition and has
not been able to point out any material
error or irregularity in the orders passed
by the Controlling Authority and the
Appellate Authority so as to warrant
interference in exercise of powers in writ
jurisdiction under Article 226 of the
Constitution of India.

73. The writ petitions lack merit and
are accordingly dismissed.
----------
(2019)11ILR A1413

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 48556 of 2014

Executive Engineer E. Dist. Division &
Ors. ...Petitioners
Versus
Presiding Officer Labour Court & Ors.
 ...Respondents

Counsel for the Petitioners:
Ms. Usha Kiran

Counsel for the Respondents:
C.S.C., Sri A.B. Vidyarthi, Sri Dilip Kumar
Yadav, Sri R.B. Vidhtarthi

A. Labour law - Delay - Limitation to
raise an Industrial Dispute - It is true
that going by the law, no limitation is
prescribed, but stale claims where the
industrial dispute may no longer actually
exist, would be something upon which
the law would frown - Dispute should be
referred as soon as possible after it has
arisen and upon conciliation proceeding
have failed - If sufficient material is not
put forth for a long delay, it would
certainly be fatal - Labour Court illegally
failed to examine the claim, which was
grossly belated by delay of 21 years.
(Para 24, 25 & 26)
B Industrial dispute - Suppression of
material fact - Earlier workmen moved
proceeding before Conciliation officer
u/s 2-A and also filed Writ petition and
Special Appeal before High Court for his
reinstatement, which were dismissed -
Held
suppression
of
these
facts
constitute
material
which
if
placed
before the authority - strong probability
exists,
it
would
have
swayed
the
subjective satisfaction of the authority
the other way. (Para 27, 28 & 29)
C. Industrial dispute - Perversity in
finding given by Labour Court - Plea of
discrimination by workman claiming that
similarly circumstanced workmen was
reinstated,
is
incredible
as
other
workmen,
claimed
to
be
similarly
situate, was reinstated in compliance of
a judicial order, not by an act of
employer - Held, finding of Labour Court
is perverse and hence award of Labour
Court is illegal. (Para 32 & 33)
Writ petition allowed with costs (E-1)
Case law relied on: -
1. Chief Engineer, Ranjit Sagar Dam & anr Vs
Sham Lal (2006) 9 SCC 124.
2. Kuldeep Singh Vs Instrument Design
Development & Facilities Centre (2010) 14
SCC 176.
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Sapan Kumar Pandit Vs U.P. St. Electricity
Board & ors. (2001) 6 SCC 222.
 4. Western India Match Co. Ltd. Vs Western
India Match Co. Workers Union 7 ors, (1970) 1
SCC 225.
(Delivered by Hon'ble J.J. Munir, J.)

1. The Chairman of the U.P. Power
Corporation Limited and two of its
Executive Engineers have petitioned this
Court
under
Article
226
of
the
Constitution seeking to quash an award,
dated
25.09.2013
(published
on
15.04.2014) made in Adjudication Case
No.57 of 2011, between these petitioners
and
their
workman,
Mohd.
Abrar,
respondent no.2. The said award that is
hereinafter referred to as the 'impugned
award', has declared termination of
services of Mohd. Abrar, respondent no.2,
by the petitioners illegal with a further
direction
to
reinstate
the
second
respondent with continuity of service and
back wages.

2. Heard Ms. Usha Kiran, learned
counsel for the petitioners and Sri Dilip
Kumar Yadav, learned counsel appearing
for the workman-respondent no.2.

3. For the facility of reference, the
three petitioners shall be hereinafter
called
the
'employers',
whereas
respondent no.2, Mohd. Abrar shall be
referred to as the 'workman'.

4. It is the employers' case that they
were earlier organized and called the U.P.
State Electricity Board and are now
known
as
the
U.P.
State
Power
Corporation. The employers owe their
present altered legal existence to a
notification dated 14.01.2000, issued
under Section 13 of the U.P. Electricity
Reforms Act. It is the further case of the
employers that the workman raised an
industrial dispute by moving the Deputy
Labour
Commissioner,
Moradabad
through an application under Section 2-A
of the U.P. Industrial Disputes Act, 1947
(for short the 'Act'). On the basis of the
said application, the Deputy Labour
Commissioner,
Moradabad
Region,
Moradabad made a reference under
Section 2-K of the Act, in the following
terms (translated into english from hindi
vernacular):

"Whether
the
act
of
the
employers in terminating the services of
their workman Mohd. Abrar S/o Gulzar
Ali, Class IV employee/lineman with
effect from 31.03.1990 is proper and
lawful? If not, to what benefit/ relief is the
workman
entitled,
and
with
what
particulars?"

5. On the basis of the aforesaid
reference Adjudication Case No.57 of
2011 was registered on the file of the
Presiding Officer, Labour Court, U.P.
Rampur between employers and the
workman. It is common ground between
parties that before the Labour Court, both
sides put in their written statements and
rejoinder statements. Also, that the
employer and the workman led their
respective evidence, both documentary
and oral.

6. The workman's case is to the
effect that he was retained as a Lineman
by the former U.P. State Electricity Board
from 01.01.1978 to 31.05.1978. As a
workman borne on the muster roll, his
services during the said period were
satisfactory.
He
was
retained,
as
aforesaid, by the employers in the
Electricity
Distribution
Division,
Chandausi, District Moradabad. He was
3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1415
detailed to duty at the Electricity
Distribution
Sub
Division-II,
Bilari,
District Moradabad. It is then said by the
Workman
that
from
01.04.1989
to
30.3.1990, he again served the employers
as
a
Lineman
in
the
Electricity
Distribution Division-III. The workman
has put in 240 days during every year and
more of continuous and regular work. The
employers
without
adhering
to
requirements
of
service
of
notice
mandatory under the law, have removed
him from service with effect from
31.3.1990. It is further claimed by the
workman that he has put in a total of 609
days with the employers as a Lineman.

7. It is the workman's further case
that other workmen, junior to him, are
still in service with the employers. He has
substantiated
the
last
plea
with
particulars,
nominating
those
junior
workmen retained in service as: (1)
Madhurendra Singh son of Sri Layak
Singh, (2) Indrabhan Singh son of Sri
Chandrabhan Singh, (3) Atul Babu son of
Sri Ramesh Chandra, besides others. It is
also asserted that the above named
workmen have been retained in service,
though juniors to the workman, by an
Office Memo No. 4399/S-1 O.P., dated
17.08.2004 but the workman was not
offered opportunity to join. To the
contrary, the workman was informed
through a letter dated 02.05.1999, issued
by the employers that there was a ban on
regular employment, and, that whenever
the restriction, as aforesaid, is lifted, he
would be taken back in. It is also said that
despite a lapse of a period of 12 years, he
has not received any information from the
employers or has he been called back to
work. It is also pleaded that the petitioner
had filed a Special Appeal before this
Court (presumably after losing his writ
petition before the learned Single Judge),
where this Court, vide judgment and
order dated 30.11.2010, is said to have
observed that it is open to the workman
that like other workmen, similarly situate,
he may also approach the Labour Court. It
is thus, according to that course of action
left open to him by this Court, by the
judgment rendered in Special Appeal
aforesaid, that the petitioner has raised the
present industrial dispute, asking for
reinstatement
together
with
all
consequential benefits.

8. The employers contested the
aforesaid claim by filing their written
statement before the Labour Court. A
copy of their written statement is on
record as Annexure no. 2 to this petition.
The stand of the employers is that the
former U.P. State Electricity Board
through their B.O. No.147-G/ SC-101979, dated 17.01.1979 had prohibited
engagement
of
employees
in
their
establishment, borne on the muster roll.
There were further clear instructions
carried in the aforesaid Board Order, that
services of all muster roll employees be
dispensed with and a seniority list of all
such retrenched workmen be drawn up. It
was pleaded that this ban was still in force
and has not been withdrawn by any
subsequent order of the employers.

9. It is the further case of the
employers that upon an inspection of all
available records, including the seniority
list and other records, relating to muster
roll employees/workmen, did not show
that any workman going by the name of
Mohd. Abrar son of Gulzar Ali was borne
on the muster roll. There is a plea
specifically carried in paragraph 5 of the
written statement of the employers, to the
effect
that
owing
to
the ban on
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
employment of muster roll employees
after January, 1979, the workman could
not have been engaged as a muster roll
employee after January, 1979. It is then
pleaded that the workman is put to strict
proof about his employment as a muster
roll employee with the predecessorBoard, or the employers. It is then further
pleaded that the documents, if any, put in
by
the
workman
regarding
his
employment had to be forged and
fictitious, drawn up by his father Gulzar
Ali, who was a Lineman with the
employers . It is, particularly, urged that
the workman has not come forward with
clean hands. He has played fraud with the
Court by concealing material facts from
the Conciliation Officer, Moradabad, and
also from this Court, in writ proceedings
that he brought here.

10. It was pleaded that suppressing
material facts, the workman caused the
present reference to be made. About what
are those facts that have been suppressed,
it is pointed out by the employers that the
workman initially filed a conciliation case
before the Conciliation Officer/Assistant
Labour Commissioner, Moradabad in the
year 1999, with a plea that he was
appointed on 01.01.1978 and his services
were
unlawfully
terminated
on
01.09.1978, while working as a muster
roll employee. This case was filed after
21 years of his alleged termination, along
with an application for condonation of
delay. The Conciliation Officer, finding
that no sufficient cause has been shown
for this inordinate delay, rejected the
application for condonation, as aforesaid,
vide
order
dated
11.11.1999,
and
consigned the case to record. The
workman did not assail the order of the
Conciliation Officer, dated 11.11.1999 by
which he declined to make a reference,
relative to the petitioner's case regarding
unlawful termination of service by the
employers, with effect from 01.09.1978.
Thus,
the
aforesaid
order
dated
11.11.1978,
declining
to
make
a
reference, became final between the
parties.

11. It is then pleaded that at this
stage, he invoked the jurisdiction of this
Court
under
Article
226
of
the
Constitution, and that too, about five
years after the Conciliation Officer
declined to make a reference, vide order
dated 11.11.1999. He brought Civil Misc.
Writ Petition no.22508 of 2004 with a
prayer for the issue of a Mandamus or
direction to appoint him as a class IV
employee on a regular basis. This claim
was based on the same cause of action as
the one on the basis of which he
unsuccessfully attempted to persuade the
Conciliation Officer to raise an industrial
dispute. In the writ petition, he did not
disclose the proceedings that he had taken
under the Act, unsuccessfully before the
Conciliation Officer. Nevertheless, the
learned Judge of this Court dismissed the
writ petition aforesaid vide judgment and
order dated 10.02.2005, holding that the
delay of 14 years has nowhere been
explained. It was also held that working
for limited periods in two spells, does not
entitle
the
workman
to
regular
employment in the establishment of the
employers. It was also held that the
workman has an alternative remedy to
raise an industrial dispute.

12. It is submitted by the learned
counsel for the petitioner that this finding
of the learned Judge clearly shows that
the fact that the workman had earlier
invoked his remedy unsuccessfully under
the Act, was suppressed in the writ
3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1417
petition. The workman assailed the order
of the learned Single Judge through a
special appeal being Special Appeal
No.405 of 2005, which too came to be
dismissed vide judgment and order dated
30.11.2010. However, in the judgment
rendered in appeal, their Lordships of the
Division Bench remarked that looking to
the controversy involved, it is a case that
requires adjudication on the basis of oral
and documentary evidence for which the
Labour Court was the appropriate forum,
also
noticing
there
that
thirteen
employees who were working along with
the workman, had already approached the
Labour Court. It is pleaded that taking cue
from this observation of their Lordships
of the Division Bench, the workman once
again switched back to the Forum under
the Act. On occasion, he moved an
application under Section 2-A of the Act
before
the
Conciliation
Officer,
Moradabad that was registered as Case
No. 14 of 2011. Here, he came up with a
case of termination based on a new date,
that is to say, 31.03.1990. He is said to
have suppressed the fact from the
Conciliation Officer that he had earlier
applied for a reference of his claim based
on the first spell of engagement, ending
on 01.09.1978 and had failed before the
Conciliation Officer on 11.11.1999, an
order that he never challenged. The
workman was successful in persuading
the Conciliation Officer to make a
reference to the Labour Court this time,
where in the present Adjudication Case,
the impugned award, has been rendered.
The Labour Court, in adjudicating the
dispute, after elaborately setting out the
case of parties and the evidence which
they have relied, besides a paraphrased
account of their respective submissions,
went into the evidence of the Employer's
witness, Prabhakar Singh. It is remarked
about this witness that he acknowledged
in his cross examination that from
01.03.1978 to 31.03.1990 he was not
posted as the Executive Engineer. It is
further noticed that he had said that he did
not file a list of muster roll employees,
removed in the year 1979. It is remarked
by the Labour Court that this fact that he
did not file a copy of the removed muster
roll employees of the year 1979, makes it
clear that the workman's name would be
there in that list. It is also remarked by the
Labour Court that the workman has filed
a certificate of service from January 1978
to 31.08.1978 which he has proved but
the Sub Divisional Officer, in his
deposition in Court, has not dispelled the
same. It is also recorded by the Labour
Court that the workman has proved his
certificate of service from 01.04.1989 to
31.03.1990, issued by the then Sub
Divisional Officer, B.P. Singh, which too
has not been refuted or dispelled by the
Sub Divisional Officer in his deposition
in the witness box.

13. It is also recorded by the Labour
Court that the workman has also proved
by his testimony in Court, a letter written
by his learned Counsel to the Executive
Engineer, Chandausi, Moradabad that was
in the form of a questionnaire, and on
record, marked Exhibit W-5. In relation to
this document, the Labour Court has
observed that in this questionnaire it has
been acknowledged that other workman
circumstanced as the workman, have been
re-employed with effect from 17.08.2004.
The Labour Court has drawn an inference
here to conclude that this fact shows that
the services of the workman have been
terminated in an unlawful manner.

14. The Labour Court has recorded a
further finding to the effect that the
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
workmen junior to the present workman
are still in employment. The Labour Court
has then taken note of a document marked
as Exhibit E-2, proved by the Employers
witness, about which the witness has said
that the document carries the name of one
Mohd. Akhtar, but does not mention the
name of the workman (Mohd. Abrar). The
Labour Court has moved on to remark
that the workman's document, Exhibit W2, the certificate of service issued by the
Sub
Divisional
Officer,
B.P.
Singh
indicates that the workman had remained
in employment from 01.04.1989 to
31.03.1990. From this, again the Labour
Court has concluded, that it goes to show
that the workman had put in 240 days or
more of service.

15. A further finding is recorded that
before he was removed, the workman was
not served with notice as required by the
law or wages in lieu of notice or
retrenchment compensation. The Labour
Court
concludes
that
in
these
circumstances, the workman was entitled
to be reinstated with continuity in service
and back wages. It is this award, which
the Employers seek to assail through the
present petition.

16. Ms. Usha Kiran, learned counsel
for the petitioner submits that the
impugned award passed by the Labour
Court is based on perverse conclusions
drawn from the evidence on record, or
conclusions that are entirely misdirected.
It is submitted that the finding regarding
juniors to the workman being retained in
service
ignores
from
consideration
material evidence, which is to the effect
that the men who have been re-engaged,
vide order dated 17.08.2004 have been so
permitted in compliance of an interim
order of this Court, passed in their favour,
in Civil Misc. Writ Petition No.55554 of
2003, dated 17.12.2003. She submits that
the impugned award, does not at all take
this feature into account. It is her
contention that in case the Labour Court
had taken due note of the interim order of
this Court, passed in favour of three other
workmen, dated 17.08.2004, be they
junior or not to the workman, the Labour
Court would have concluded to the
contrary. It is so as no rights can be based
on a plea of discrimination, drawn on the
basis of an act that is done in compliance
of a judicial order. It is further argued on
behalf of the petitioner that the finding of
the Labour Court that Exhibit E-2 issued
by the then S.D.O., which mentions name
of a certain workman called Mohd.
Akhtar, actually bears reference to the
workman (Mohd. Abrar), is a perverse
finding that has no basis to it. It is further
submitted that there is absolutely no
record or other evidence to show that the
workman indeed worked as a muster roll
employee from 01.04.1989 to 13.03.1990,
completing 240 days and more of service
in a year, so as to entitle him to the
benefit of Section 6-N of the Act.

17. The Labour Court, in particular,
ignored from consideration the fact that
according to the workman's case, he
worked
in
two
spells,
one
from
01.01.1978 to 31.08.1978, and, in the
second
spell,
from
01.04.1989
to
31.03.1990; and that basing his claim on
the earlier period of engagement from
01.01.1979
to
31.08.1978,
he
had
approached the Conciliation Officer in the
year 1999, under Section 2-A of the Act,
seeking to raise an industrial dispute,
which
has
been
declined
by
the
Conciliation Officer vide order dated
11.11.1989, holding it to be highly
belated, and one made after 21 years.
3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1419

18. Learned counsel for the
Employers has also pointed out that after
attempting to seek a remedy before this
Court on the writ side, and failing in that
endeavour, the present application has
been made to the Conciliation Officer,
leading to the reference, now in hand. It
includes the two different periods of
engagement claimed by the workman, as
the basis of raising a dispute, that is to
say, the period from 01.01.1978 to
31.08.1978
and
01.04.1989
to
31.03.1990, where he had concealed his
earlier failure, with regard to the period of
his claim, based on engagement in the
year 1978.

19. Learned counsel for the
Employers also pointed out that when the
workman
first
approached
the
Conciliation Officer seeking to raise an
industrial
dispute,
both
periods
of
engagement, that have been alleged, now
on the second application under Section
2-A of the Act, were available, but in the
first application, engagement in the year
1978 alone was made basis to raise the
dispute. This according to Ms. Usha
Kiran, learned counsel for the Employers
shows that the subsequent claim put
forward in the second application, and
also in writ proceedings before this Court,
is a claim that is based on fabrication with
not a grain of truth to it. It is for this
reason that the workman could not
produce any evidence about either of the
two stretches of time, during which he
claims to have worked for the Employers.
It is for the same reason that in all the
relevant documents available with the
Employers' establishment, that have been
examined by them, and produced in
Court, the name of the workman does not
figure. It is submitted by her that these
aspects have been completely overlooked
by the Labour Court while rendering the
impugned award. It is also argued by Ms.
Usha Kiran that apart from all other facts,
the workman's claim, on admitted facts,
relates to a termination dating back to
31.03.1990, and the application under
Section 2-A of the Act seeking to raise the
industrial dispute was made in the year
2011, that is to say, after a period of 21
years. This makes the workman's claim ex
facie stale where it is difficult to say
whether any industrial dispute, indeed,
survives, if at all ever there was one. The
Labour Court has not at all bestowed
consideration to the aforesaid feature
about
the
workman's
case,
which
according to the learned counsel for the
Employers, if considered, might have led
him to discard the workman's claim on
ground of being highly belated and stale.

20. Sri Dilip Kumar Yadav, learned
counsel appearing for the workman refuting
the submissions made on behalf of the
Employers has come up with a case that the
workman was engaged from 01.01.1978 to
31.08.1978 as a lineman, borne on the
muster roll. He was given a certificate of
service for that period, which accounts more
than 243 days where he performed well, and
was appreciated. Thereafter, he was again reengaged for the same work of a lineman
from 01.04.1989 to 31.03.1990 in the Vidyut
Vitran Khand, Moradabad. For this stint of
his engagement, he was issued a certificate
by the S.D.O.-III, of which the Labour Court
has taken due note in the impugned award.
The Labour Court has found it to be a validly
proved document by the workman in his
evidence, which the Employers Witnesses
have not dispelled.

21. Learned counsel for the
workman submits that these are findings
of fact recorded by the Labour Court, in
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
which this Court in exercise of its powers
under Article 226, or for that matter 227,
cannot interfere. It is submitted that the
Labour Court has found for a fact that the
services of the workman were terminated in
breach of the procedure prescribed under the
Act, without service of notice for the requisite
period, or paying him wages for the period of
notice as required by law, rendering the
termination of his services unlawful. The said
finding also is based on the edifice of the
earlier finding regarding the workman's
engagement from 01.04.1978 to 31.08.1978,
that far exceeds 240 days; it is also, therefore,
a finding of fact, which cannot be disturbed
by this Court. He has also urged that similarly
circumstanced workmen, to wit, Rajesh
Kumar, Mahendra Singh, Indrapal Singh and
Atul Babu, who were also removed like the
workman, have been reinstated in service by
an order of the Executive Engineer, Electricity
Distribution Division, Chandausi, District
Moradabad, dated 17.01.2004, but the
Employers have not reinstated the workman
in like manner. According to the learned
counsel for the workman, this amounts to
hostile discrimination between similarly
circumstanced workmen, by the Employers,
who are after all, the State.

22. Learned counsel for the
Employers has come up with a plea that
the earlier application moved before the
Conciliation Officer, that was rejected
vide order dated 11.11.1999 by the
Conciliation Officer/ Assistant Labour
Commissioner, was not made by him. He
had not filed any application prior to Case
no.57 of 2011 before the Conciliation
Officer, that was decided in his favour on
25.09.2011.

23. In the next breadth, learned
counsel for the workman says that it is
true that the workman had erroneously
moved
the
Assistant
Labour
Commissioner, Moradabad instead of
moving the Labour Court, U.P. at
Rampur, but that application was illegally
dismissed on ground of laches. The order
there was never communicated to the
workman. About the delay in the matter
of approaching the Labour Court, Sri
Dilip Kumar Yadav, learned counsel for
the workman says that delay in itself is no
disentitling parameter. He has placed
reliance in support of the aforesaid
contention of his on a decision of the
Supreme Court in Chief Engineer,
Ranjit Sagar Dam and another vs.
Sham Lal, (2006) 9 SCC 124, where on
the issue of delay in raising an industrial
dispute, it has been held by their
Lordships thus:

"9. So far as delay in seeking
the reference is concerned, no formula of
universal application can be laid down. It
would depend on the facts of each
individual case.

10.
However,
certain
observations made by this Court need to
be noted. In Nedungadi Bank Ltd. v. K.P.
Madhavankutty [(2000) 2 SCC 455 : 2000
SCC (L&S) 283] it was noted at para 6 as
follows: (SCC pp. 459-60)

"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
3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1421
industrial dispute existed or could be even
said to have been apprehended. A dispute
which is stale could not be the subjectmatter 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."

11. In S.M. Nilajkar v. Telecom
District Manager [(2003) 4 SCC 27 :
2003 SCC (L&S) 380] the position was
reiterated as follows (SCC at pp. 39-40,
para 17):

"17. It was submitted on behalf
of the respondent that on account of delay
in raising the dispute by the appellants the
High Court was justified in denying relief
to the appellants. We cannot agree. It is
true, as held in Shalimar Works Ltd. v.
Workmen [(1960) 1 SCR 150 : AIR 1959
SC 1217] that merely because the
Industrial Disputes Act does not provide
for a limitation for raising the dispute, it
does not mean that the dispute can be
raised at any time and without regard to
the delay and reasons therefor. There is no
limitation prescribed for reference of
disputes to an Industrial Tribunal; even so
it is only reasonable that the disputes
should be referred as soon as possible
after
they
have
arisen
and
after
conciliation proceedings have failed,
particularly so when disputes relate to
discharge of workmen wholesale. A delay
of 4 years in raising the dispute after even
re-employment of most of the old
workmen was held to be fatal in Shalimar
Works Ltd. v. Workmen [(1960) 1 SCR
150 : AIR 1959 SC 1217] . In Nedungadi
Bank Ltd. v. K.P. Madhavankutty [(2000)
2 SCC 455 : 2000 SCC (L&S) 283] a
delay of 7 years was held to be fatal and
disentitled the workmen to any relief. In
Ratan Chandra Sammanta v. Union of
India [1993 Supp (4) SCC 67 : 1994 SCC
(L&S) 182 : (1994) 26 ATC 228] it was
held that a casual labourer retrenched by
the employer deprives himself of remedy
available in law by delay itself; lapse of
time results in losing the remedy and the
right as well. The delay would certainly
be fatal if it has resulted in material
evidence relevant to adjudication being
lost and rendered not available. However,
we do not think that the delay in the case
at hand has been so culpable as to
disentitle the appellants to any relief.
Although the High Court has opined that
there was a delay of 7 to 9 years in raising
the dispute before the Tribunal but we
find the High Court factually not correct.
The employment of the appellants was
terminated some time in 1985-86 or 198687. Pursuant to the judgment in Daily
Rated Casual Labour v. Union of India
[(1988) 1 SCC 122 : 1988 SCC (L&S)
138 : (1987) 5 ATC 228] the Department
was
formulating
a
scheme
to
accommodate casual labourers and the
appellants were justified in awaiting the
outcome thereof. On 16-1-1990 they were
refused to be accommodated in the
Scheme. On 28-12-1990 they initiated the
proceedings under the Industrial Disputes
Act followed by conciliation proceedings
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
and then the dispute was referred to the
Industrial Tribunal-cum-Labour Court.
We do not think that the appellants
deserve to be non-suited on the ground of
delay."

The
above
position
was
highlighted recently in Sudamdih Colliery
of Bharat Coking Coal Ltd. v. Workmen
[(2006) 2 SCC 329 : 2006 SCC (L&S)
306 : (2006) 1 Supreme 282."

24. A careful examination of the
matter does indicate that the present
reference, where the industrial dispute
was raised in the year 2011 through an
application made to the Conciliation
Officer by the workman, relates to a
termination
of
services
made
on
31.03.1990, going by the terms of the
reference and nothing more. More or less,
reckoned from the latter of the two stints
that the workman had, in the Employers
establishment as a muster roll borne
lineman, the dispute has been raised after
a delay of 21 years. It is true that going by
the law, no limitation is prescribed, but
stale claims where the industrial dispute
may no longer actually exist,would be
something upon which the law would
frown. It is trite to say that what time
period would constitute disentitling delay,
would
depend
on
the
facts
and
circumstances of each case, as indicated
in the decision of the Supreme Court in
Chief Engineer, Ranjit Sagar Dam and
another (supra). But, delay is certainly a
very relevant factor to be considered by
the Labour Court, in cases that are
brought after lapse of a relatively long
period of time, going by the short period
of human life, and the still shorter
productive period of it. The two decisions
of their Lordships of the Supreme Court,
that have been referred to with approval
in Chief Engineer, Ranjit Sagar Dam
and another (supra), are eloquent on
various facets how delay would work to
bar stale claims, notwithstanding the fact
that a specified period of limitation is not
prescribed by the statute to raise an
industrial dispute. Various factors that
have to be taken into consideration, are
well illustrated there, and serve as a
guiding hand in various matters where the
issue arises.

25. Again, the Supreme Court in
Kuldeep Singh vs. Instrument Design
Development
&
Facilities
Centre,
(2010) 14 SCC 176, following two earlier
decisions of their Lordships in Sapan
Kumar Pandit vs. U.P. State Electricity
Board and others, (2001) 6 SCC 222
and a three Judge Bench of their
Lordships in Western India Match Co.
Ltd. vs. Western India Match Co.
Workers Union and others, (1970) 1
SCC 225, that had been followed in
Sapan Kumar Pandit (supra) held on
the question of stale industrial disputes in
Kuldeep Singh (supra), thus:

"30. In view of the above, law
can be summarised that there is no
prescribed time-limit for the appropriate
Government to exercise its powers under
Section 10 of the Act. It is more so in
view of the language used, namely, if any
industrial
dispute
exists
or
is
apprehended, the appropriate Government
"at any time" refer the dispute to a board
or court for enquiry. The reference sought
for by the workman cannot be said to be
delayed or suffering from a lapse when
law does not prescribe any period of
limitation for raising a dispute under
Section 10 of the Act. The real test for
making a reference is whether at the time
of the reference dispute exists or not and
when it is made it is presumed that the
3 All. Executive Engineer E. Dist. Division & Ors. Vs. Presiding Officer Labour Court & Ors. 1423
State Government is satisfied with the
ingredients of the provision, hence the
Labour Court cannot go behind the
reference.

31. It is not open to the
Government to go into the merit of the
dispute concerned and once it is found
that an industrial dispute exists then it is
incumbent on the part of the Government
to make reference. It cannot itself decide
the merit of the dispute and it is for the
appropriate court or forum to decide the
same. The satisfaction of the appropriate
authority in the matter of making
reference under Section 10(1) of the Act
is a subjective satisfaction. Normally, the
Government cannot decline to make
reference for laches committed by the
workman. If adequate reasons are shown,
the Government is bound to refer the
dispute to the appropriate court or forum
for adjudication.

32. Even though, there is no
limitation prescribed for reference of
dispute to the Labour Court/Industrial
Tribunal, even so, it is only reasonable
that the disputes should be referred as
soon as possible after they have arisen
and after conciliation proceedings have
failed, particularly, when disputes relate
to discharge of workman. If sufficient
materials are not put forth for the
enormous delay, it would certainly be
fatal. However, in view of the explanation
offered by the workman, in the case on
hand, as stated and discussed by us in the
earlier paragraphs, we do not think that
the delay in the case on hand has been so
culpable as to disentitle him any relief.
We are also satisfied that in view of the
details furnished and the explanation
offered, the workman cannot be blamed
for the delay and he was all along hoping
that one day his grievance would be
considered by the management or by the
State Government. (Emphasis by Court)

26. A perusal of the impugned
award in this case would show that the
Labour Court, before whom this plea
about the grossly belated claim had been
raised vide paragraph 14 of the written
statement, did not at all advert to the
aforesaid aspect, that indeed was required
to be addressed by the Labour Court
looking to the 21 years that stood between
the date of termination from service of the
workman and the time when the industrial
dispute was raised, leading to the
adjudication case before the Labour
Court. If it had been only this issue about
non-examination of the plea regarding the
prima facie stale industrial dispute, which
the Labour Court has failed to examine, it
would have merited a remand of the
matter to the Labour Court, and nothing
more. But, here there are other issues to
which the attention of the Labour Court
has been drawn, and conclusions reached
one way about those.

27. Most important of these is the
fact that the workman has suppressed
from the Conciliation Officer, when he
made the present reference, and also from
the Labour Court, the fact that the
workman
had
earlier
moved
the
Conciliation Officer in the year 1999,
under Section 2-A of the Act, where he
had cited the period of his engagement
with the Employers as 01.01.1978 to
31.08.1978. There, he had mentioned that
his services were unlawfully terminated
on 01.09.1978, and that he was borne on
the muster roll during the period of his
retention by the Employers. There is on
record a Memo, dated 09.12.1999, which
indicates that the aforesaid reference was
declined
as
time
barred
by
the
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
Conciliation Officer vide an order, dated
05.07.1999 (the Employer has indicated
that date to be 11.11.1999 in the writ
petition and elsewhere). The letter of the
Conciliation
Officer-cum-Assistant
Labour Commissioner, Moradabad, is on
record as Annexure no.4 to the writ
petition. There is also on record a detailed
note submitted by the Conciliation
Officer, dated 11.11.1999 to the Deputy
Labour Commissioner bearing a detailed
reference to the case put up before him
for conciliation and requesting a reference
of an industrial dispute to be made, that
he found to be stale with a delay of 21
years. A perusal of the said report dated
11.11.1999, that has been referred to by
the Employers as an order, indicates that
the matter was submitted for approval to
the Deputy Labour Commissioner, who
was, to all seeming, the Authority,
delegated with powers to make a
reference under Section 4-K of the Act by
the State Government. The orders passed
by
the
Conciliation
Officer
on
05.07.1999, and submitted to the Deputy
Labour Commissioner for approval on
11.11.1999, which in due course, must be
presumed to have been approved, were
not
challenged
anywhere
by
the
workman, and attained finality.

28. In between, the workman also
tried to secure relief in substance, directed
to ensure his reinstatement by the
Employers through Civil Misc. Writ
Petition no.22508 of 2004, that came to
be dismissed vide order dated 10.02.2005.
A Special Appeal from the said order of
the learned Single Judge being Special
Appeal no.405 of 2005, was also
dismissed by the Division Bench, vide
judgment and order dated 30.11.2010. At
this juncture, the workman in the
following year, that is to say 2011,
suppressing all proceedings earlier taken
before the Conciliation Officer in the year
1999, unsuccessfully to secure a reference
of the industrial dispute to adjudication,
and also all proceedings taken before this
Court on the writ side, moved the
Conciliation Officer again through an
application under Section 2-A of the Act.
The application made under Section 2-A
of the Act in the year 2011, on the basis of
which the present reference has been
made, is on record as Annexure no.1 to
the writ petition.