# State of U.P. & Anr v. Presiding Officer, Labour Court, Lucknow & Anr

- **Citation:** (2021) 9 ILRA 1344
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Writ C No. 40301 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-presiding-officer-labour-court-lucknow-anr-47528
- **Pages:** 16

## Headnote

Civil Law - U.P. Industrial Disputes
Act,1947
-
Sections
2-A
&
4-K
-
Limitation Act, S.5 - Stale claim seeking
re-engagement - stale claims that are
dead do not give rise to an industrial
dispute - though there is no limitation
prescribed under the Act, during which
the industrial dispute may be raised, but
it does not mean that a stale claim must
be entertained by the Government or
adjudicated by the Court - principle on
which stale claims are said to be not valid
for adjudication is the extinguishment of
the industrial dispute with passage of
time - An industrial dispute is something
that
threatens
industrial
peace
-
However, if the dispute is still alive on
the date of reference, even after passage
of a considerable period of time, in the
sense that it is still a potent peril to
industrial peace, the reference cannot be
thrown out as a State claim - there has to
be evidence aliunde to show that the
industrial dispute was alive between
parties (Para 19, 21, 25)

Workman terminated in the year 1989 - He
belatedly raised Industrial dispute in the year
2004 i.e. after about 15 years - Held - there
was no evidence to show that during the
period of 15 years workman pursued his claim
as there was no evidence about workman
applications, seeking re-engagement, being
actually delivered to the employer - there was
not a solitary document to show that during
this long period of 12 years & more, there
was anything said by way of an assurance by
the employer, on the basis of which the
workman might reasonably be held to have
thought that some kind of a negotiation about
the industrial dispute is underway - difficult to
hold that the industrial dispute was alive in all
these years - Industrial dispute that was
referred for adjudication to the Labour Court
was stale and a dead dispute - impugned
award quashed (Para 22, 35, 36, 37)

Allowed. (E-5)

List of Cases cited :
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1345

## Text

_Characters 0–39,932 of 51,259. This is a partial read: ask again with offset=39932 for what follows._

1344 INDIAN LAW REPORTS ALLAHABAD SERIES
from the guiding instructions issued by the
State
Election
Commission
for
the
Panchayat Elections-2021.

30. For the above, we request the
Advocate General, High Court, Allahabad
to bring this judgment to the notice of the
State Government to advise to make
suitable amendments in the Rules 1994 in
order to avoid future litigation and to bring
stability in the Panchayat election process
in future.

The Additional Chief Secretary,
Panchayat Raj, Government of U.P.,
Lucknow is directed to take up the issue so
as to initiate the necessary exercise at the
earliest.

For the above discussion, in the
facts and circumstances of the case, we do
not find any merit in the challenge before
us. The writ petition is, accordingly,
dismissed.

No order as to costs.
----------
(2021)09ILR A1344
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

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

Writ C No. 40301 of 2013

State of U.P. & Anr. ...Petitioners
Versus
Presiding Officer, Labour Court, Lucknow
& Anr. ...Respondents

Counsel for the Petitioners:
Sri Suman Sirohi S.C.

Counsel for the Respondents:
C.S.C., Sri Diptiman Singh, S.C.

Civil Law - U.P. Industrial Disputes
Act,1947
-
Sections
2-A
&
4-K
-
Limitation Act, S.5 - Stale claim seeking
re-engagement - stale claims that are
dead do not give rise to an industrial
dispute - though there is no limitation
prescribed under the Act, during which
the industrial dispute may be raised, but
it does not mean that a stale claim must
be entertained by the Government or
adjudicated by the Court - principle on
which stale claims are said to be not valid
for adjudication is the extinguishment of
the industrial dispute with passage of
time - An industrial dispute is something
that
threatens
industrial
peace
-
However, if the dispute is still alive on
the date of reference, even after passage
of a considerable period of time, in the
sense that it is still a potent peril to
industrial peace, the reference cannot be
thrown out as a State claim - there has to
be evidence aliunde to show that the
industrial dispute was alive between
parties (Para 19, 21, 25)

Workman terminated in the year 1989 - He
belatedly raised Industrial dispute in the year
2004 i.e. after about 15 years - Held - there
was no evidence to show that during the
period of 15 years workman pursued his claim
as there was no evidence about workman
applications, seeking re-engagement, being
actually delivered to the employer - there was
not a solitary document to show that during
this long period of 12 years & more, there
was anything said by way of an assurance by
the employer, on the basis of which the
workman might reasonably be held to have
thought that some kind of a negotiation about
the industrial dispute is underway - difficult to
hold that the industrial dispute was alive in all
these years - Industrial dispute that was
referred for adjudication to the Labour Court
was stale and a dead dispute - impugned
award quashed (Para 22, 35, 36, 37)

Allowed. (E-5)

List of Cases cited :
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1345
1. Nedungadi Bank Ltd. Vs K.P. Madhavan Kutti
(2002) 2 SCC 455

2. Haryana State Corp. Bank Ltd. Vs Neelam
(2005) 5 SCC 91

3. State of U.P. & anr. Vs Rajesh Kumar Awasthi
& Anr Writ - C No. 39723 of 2017, decided on
13.01.2020

4.
Kuldeep
Singh
Vs
General
Manager,
Instrument Design Development and Facilities
Centre & anr. (2010) 14 SCC 176

5. Prabhakar Vs Joint Director, Sericulture
Department & anr. (2015) 15 SCC 1

(Delivered by Hon'ble J.J. Munir, J.)

Heard
Mr.
Shreeprakash
Singh,
learned Standing Counsel appearing for the
petitioners and Mr. Diptiman Singh,
learned
Counsel
appearing
for
the
respondent-workman.

2. This writ petition is directed
against an award of the Presiding Officer,
Labour Court, Lucknow dated 27.01.2012
(published on 12.04.2012) passed in
Adjudication Case no.252 of 2005. Also
impugned is an order of the Presiding
Officer, Labour Court, U.P., Lucknow
dated 07.03.2013 passed in Misc. Case
no.51 of 2012, rejecting an application by
the petitioners, seeking a review of the
award.

3. It appears that an application dated
25.09.2003 was made by the second
respondent,
Ram
Chandra1
to
the
Conciliation
Officer,
Bareilly,
under
Section 2-A of the Uttar Pradesh Industrial
Disputes Act, 19472. The application
aforesaid was made with an acknowledged
delay of 12 years, 3 months and 25 days. It
was accompanied by an application under
Section 5 of the Indian Limitation Act,
1963, seeking condonation of the delay in
making it.

4. It was said in the application for
conciliation
that
the
workman
was
employed in the establishment of the
Assistant Engineer, Second Head Works
Division, Sharda Canal Bifurcation, Pilibhit
as a daily-wager, since the month of
August, 1987. He was retained by an oral
order made by the Assistant Engineer, last
mentioned. The Superintending Engineer,
5th Division, Irrigation Works, Bareilly,
the Executive Engineer, Head Works
Division, Sharda Canal, Bareilly, and the
Assistant Engineer, Second Head Works
Division,
Sharda
Canal
Bifurcation,
Pilibhit, were arrayed as opposite parties to
the application under reference. The said
opposite parties are represented before this
Court by the two petitioners, that is to say,
the State of Uttar Pradesh through the Chief
Engineer, Irrigation Division, Government
of U.P., Lucknow and the Executive
Engineer, Head Works Division, Sharda
Canal, Bareilly. Be it the three opposite
parties
arrayed
in
the
conciliation
proceedings at Bareilly, or the petitioners
here, they shall hereinafter be referred to as
the 'employers'.

5. Shorn of unnecessary details, it was
said in the application seeking conciliation
that the workman discharged his duties
with utmost devotion and never gave cause
for complaint to the employers. The
employers deputed him to do work in the
office that was ministerial in nature. He
was given an assurance that after some
time, his services would be regularized and
made permanent as a Clerk. It is also said
that believing the said representation by the
employers to be true, the workman
continued to discharge the duties of a
Clerk, in addition to his duties. He did not
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
demand any additional wages. It is the
workman's case that he repeated his request
orally to the employers, asking them to
regularize his services on a permanent post,
but the employers would ward off the
request. In the month of April, 1991, the
workman claims to have forcefully asserted
his claim to regularize and to be made
permanent, which led the employers to
orally terminate his service in the month of
May, 1991. He was not served with any
notice or paid notice pay or retrenchment
allowance. It was also said in the
application
for
conciliation
that
the
workman met the employers time over
again and orally requested them to take him
back in their employ. However, no heed
was paid to his requests. The workman
claims that left with no alternative, he got a
notice dated 04.07.2003 served by his
learned counsel through registered post.
There, it was demanded that the workman
be taken back in service and his case be
considered
for
regularization
with
confinement of the status of a permanent
employee.

6. There is an assertion in the
application seeking conciliation that the
workman worked with the employers from
the month of August, 1987 to May, 1991
continuously. He functioned for more than
240 days in each calendar year during the
aforesaid period of time. On the basis of the
aforesaid assertion, the workman said that
he was entitled to be regularized in service
and declared a permanent employee. It is
said in paragraph no.7 of the application
that a period of 12 years, 3 months and 25
days had elapsed since his services were
dispensed with by the employers. This
delay was sought to be explained on the
basis that during this period of time, the
workman had made repeat requests orally
and through written applications to the
employers to remit the wrong, but to no
avail. It was said that the delay was not
intentional or the outcome of laches. The
workman requested that for resolution of
the industrial dispute between parties, a
Conciliation Committee be constituted. The
Committee so constituted may ensure that
the workman's illegal termination from
service, with effect from the month of May,
1991, be declared inoperative and void, and
that he may be reinstated with continuity in
service together with all consequential
benefits.
The
workman's
application
seeking conciliation was registered on the
file of the Conciliation Officer-cumAssistant Labour Commissioner, Bareilly
as C.P. Case no.1 of 2004.

7. Notice of the said application was
issued to the employers, requiring them
to attend before the Conciliation Officercum-Assistant
Labour
Commissioner,
Bareilly on 13.01.2004 at 11.00 o'clock in
the morning hours. The employers filed a
reply to the said conciliation application,
wherein it was pleaded in paragraph no.1
that the workman was retained as a dailywager to do the work of a Beldar. He
worked from the month of August, 1987
to the month of May, 1991, as per details
furnished in a statement accompanying
the employers' reply dated 06.02.2004
before the Conciliation Officer, Bareilly.
The attached schedule of details about the
number of days in each calendar year,
month-wise that the workman discharged
his duties with the employers, is detailed
below:

"श्री राम चन्द्र गिंगवार पुत्र श्री दयाराम
गिंगवार,ननवासी ग्राम कनमन बहेडी नजला बरेली
से नवपक्षी सिं0-3 के अधीन के दैननक वेतनभोगी
बेलदार के रूप में नकये गये काया का वर्ा /माह
वार नववरण।
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1347

िमािंक माह काया नदवस

िमािंक माह काया नदवस

1. 8/87 शून्य

1.
1/90 शून्य

2. 9/87 शून्य

2.
2/90 शून्य

3. 10/87 शून्य

3.
3/90 शून्य

4. 11/87 शून्य

4.
4/90 शून्य

5. 12/87 शून्य

5.
5/90 शून्य

कुल-शून्य

 6.
6/90
शून्य

1. 1/88 शून्य

 7.
7/90 शून्य

2. 2/88 शून्य

 8.
8/90 शून्य

3. 3/88 शून्य

9.
9/90 शून्य

4. 4/88 शून्य

10.
10/90 शून्य

5. 5/88 शून्य

11.
11/90 शून्य

6. 6/88 26 नदन

12. 12/90 शून्य

कुल
-
शून्य

7. 7/88 19 नदन

 1.
1/91 शून्य

8. 8/88 26 नदन

 2.
2/91 शून्य

9. 9/88 शून्य

3.
3/91 शून्य

10. 10/88 शून्य

4. 4/91 शून्य

11. 11/88 26 नदन

 5.
5/91 शून्य

12. 12/88 शून्य

कुल - 97 नदवस

 कुल
- शून्य

1. 1/89 26 नदन

2. 2/89 28 नदन

3. 3/89 शून्य

4. 4/89 शून्य

5. 5/89 14 नदन

6. 6/89 30 नदन

7. 7/89 27 नदन

8. 8/89 शून्य

9. 9/89 30 नदन

10. 10/89 शून्य

11. 11/89 शून्य

12. 12/89 शून्य

कुल - 155 नदन

भवदीय

वी0के0श्रीवास्तव

सहायक अनभयिा नद्वतीय

वाइर्रकेशन पीलीभीत

प्रनतवादीगण सिं0 1 से 3 की ओर से।"

8. The workman made an application
in C.P. Case no.1 of 2004 before the
Conciliation
Officer,
Bareilly
dated
12.03.2004 seeking to withdraw/ not press
the conciliation application on ground that
it had some technical flaws, which the
workman wanted to rectify and present a
fresh
application.
The
withdrawal
application was allowed by the Conciliation
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer vide order dated 12.03.2004 and the
conciliation case together with the delay
condonation application were directed to be
consigned to records.

9. A month later on 12.04.2004, the
workman moved a fresh application under
Section 2-A of the Act of 1947, on
occasion before the Conciliation Officer,
Lucknow,
again
accompanied
by
an
application seeking condonation of delay.
Here, it was said that the employers had
retained the workman with effect from
01.11.1986 on a monthly/ daily salary of
Rs.450/- per month to work as a Beldar.
His services were illegally terminated with
effect from 01.06.1991. No reason was
assigned for dispensing with the workman's
service. It was also said that the workman
went time over again to the employers
asking to be re-engaged, but to no avail. It
was
also
said
that
the
employers'
establishment had a work force of about
15000 strong. The workman, time over
again, made oral requests and also wrote
applications, requesting the employers that
the dispute may be amicably resolved,
which the employers did not do. It was,
therefore, prayed that proceedings under
Section 2-A may be drawn and concluded
early, ensuring that the workman is
reinstated in service with continuity and
back wages. The application was registered
before
the
Conciliation
Officer-cumAssistant Labour Commissioner, Lucknow
as Application no.141 of 2004.

10. Upon notice of the said
application being issued to the employers,
they filed a reply dated 06.08.2004. It was
pointed on behalf of the employers that the
workman had earlier approached the
Conciliation Officer-cum-Assistant Labour
Commissioner, Bareilly vide C.P. Case
no.1 of 2004. There also, he had sought
condonation of delay. After the employers
had filed the reply in the said case, the
workman had withdrawn the conciliation
proceedings citing technical flaws in the
application, attended with the assertion that
after removal of defects, a fresh application
would be presented. A copy of the earlier
application was appended by the employers
to their reply. An objection was raised to
the effect that the workman was a resident
of Bareilly and was employed with the
employers' establishment, comprising the
Second Division Bifurcation at Pilibhit. As
such, the cause of action did not arise
within the territorial jurisdiction of the
Conciliation Officer at Lucknow, but was
cognizable by the Conciliation Officer,
Bareilly. About the other matters, it was
said that their stand as the one taken before
the Conciliation Officer, Bareilly, remains
unchanged.

11. The Conciliation Officer/ Deputy
Labour Commissioner, Lucknow vide his
order dated 15.12.2005, proceeded to make
a reference under Section 4-K of the Act of
1947 to the Labour Court n the following
terms (translated into English from Hindi
vernacular):

"Whether termination of services
of their workman, Sri Ram Chandra son of
Daya Ram, a Beldar by the employers with
effect from 01.10.1989 is lawful and
proper? If not, to what relief the concerned
workman is entitled and what are the
particulars of his lawful dues?"

12. The aforesaid case was registered
on the file of the Presiding Officer, Labour
Court, U.P., Lucknow as Adjudication Case
no.252 of 2005. Both parties were put
under notice and called upon to file their
written statements. The workman filed his
written
statement
dated
27.01.2006,
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1349
whereas the employers filed their written
statement dated 11.05.2006. The employers
in written statement said that their stand
remains the same as that carried in their
reply in C.P. Case no.141 of 2004 before
the
Conciliation
Officer-cum-Assistant
Labour Commissioner, Lucknow Region,
Lucknow. The reply dated 23.03.2005
submitted in the conciliation proceedings
was enclosed with the written statement
filed on behalf of the employers. It may be
emphasized that in the reply dated
23.03.2005 submitted in the conciliation
proceedings on behalf of the employers, a
schedule about the period of engagement of
the workman with the employers was
detailed. It was furnished for the years
1988 and 1989, indicating month-wise
break-up of days that the workman had
worked with the employers. The total
number of days during each of the two
calendar years was also detailed. The said
figures, detailed with the reply dated
23.03.2005, filed before the Conciliation
Officer is relevant. These read:

"विि 1988

िमािंक माह काया नदवस

1. 6/88

 26 नदवस

2. 7/88

19 नदवस

3. 8/88

 26 नदवस

4. 9/88

 शून्य

5. 10/88

 शून्य

6. 11/88

26 नदवस

7. 12/88

23 नदवस

कुल-

120
नदवस

विि 1989

1. 1/89

 शून्य

2. 2/89

28 नदवस

3. 3/89

7 नदवस

4. 4/89

 शून्य

5. 5/89

14 नदवस

6. 6/89

30 नदवस

7. 7/89

27 नदवस

8. 8/89

 शून्य

9. 9/89

30 नदवस

कुल-

136
नदवस

(एन0सी0 उपाध्याय)

सहायक अनभयिा, नद्वतीय

बाईर्रकेशन"

13. Rejoinder statements were filed
by the employers and the workman. At the
hearing before the Labour Court, the
workman led both oral and documentary
evidence. However, the employers, who
sought time on 24.02.2011, 04.05.2011,
01.09.2011
and
15.10.2011
to
lead
evidence, did not do so. This fact is
recorded in the impugned award. It is also
recorded there that on 15.10.2011, the
employers' opportunity to lead evidence
was closed. Both parties were then heard
through their various representatives by the
Labour Court, which, by its award
impugned, held that the workman had
worked for more than 240 days and his
services had been terminated in breach of
Sections 6-N, 6-P and 6-Q of the Act of
1947. The reference was answered in the
manner that termination of the workman's
services was not lawful or proper, and that
he is entitled to reinstatement. It was
further awarded that the workman was
entitled to reinstatement with effect from
01.10.1989 with continuity in service.
However, towards back-wages, 25% was
awarded.
1350 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Aggrieved, the present writ
petition
has
been
instituted
by
the
employers.

15. I have heard the learned Counsel
for parties and perused the record.

16. The foremost objection that has
been raised by Mr. Shreeprakash Singh, the
learned Standing Counsel appearing for the
petitioners, is that the claim has been raised
belatedly, after the passage of about 15
years. It is submitted that it is a stale claim,
where, on the own showing of the
workman, the first time that he initiated
proceedings for conciliation before the
Conciliation Officer-cum-Assistant Labour
Commissioner, Bareilly, it was with a delay
of 12 years, 4 months and 25 days. It is for
the said reason that the workman-employee
applied for condonation of delay before the
Conciliation Officer at Bareilly. The
conciliation
proceedings
initiated
at
Bareilly were withdrawn on 12.03.2004
and a month later, on 12.04.2004, the
Conciliation Officer at Lucknow was
moved. It is submitted that according to the
reference, the services of the petitioner
were
terminated
w.e.f.
01.10.1989.
Therefore, it was about 15 years after the
employer removed him, that the workman
raised
an
industrial
dispute.
It
is
emphasized that during this period of time,
there is no dependable evidence to show
that the workman pursued his claim, or the
industrial dispute remained alive. It is
urged that according to the employers' case,
after 30.09.1989, the workman ceased to
turn up for work. He was a daily-wager and
free to do so. The evidence regarding
applications submitted by the workman to
the employers, seeking reinstatement in
service, that have been brought on record,
are dubbed as self-serving documents. It is
urged that there is no proof of dispatch or
tender
of
these
applications.
It
is
particularly
emphasized
by
Mr.
Shreeprakash Singh that the only evidence
about postal dispatch of these applications
are UPC Certificates, that are no evidence
about postal dispatch. The only admissible
evidence about postal dispatch is the
receipt of dispatch by registered post.

17. For the principle that stale claims
that are dead do not give rise to an
industrial dispute, the learned Standing
Counsel appearing for the petitioner has
placed reliance on the decision of Supreme
Court in Nedungadi Bank Ltd. v. K.P.
Madhavan Kutti3. To the same end,
reliance has been placed on another
decision of the Supreme Court in Haryana
State Corporation Bank Ltd. v. Neelam4. It
is submitted on the strength of these
decisions that though there is no limitation
prescribed under the Act, during which the
industrial dispute may be raised, but it does
not mean that irrespective of facts and
circumstances of the case, a stale claim
must be entertained by the Government or
adjudicated by the Court. Mr. Shreeprakash
Singh emphasizes that going by the
principle laid down in the two Authorities
under reference, the workman ought to
have approached the Court at the earliest as
in case of delay, the aim and object of
raising
an
industrial
dispute
stands
defeated. The learned Standing Counsel has
further placed reliance upon a decision of
this Court in State of U.P. and Another v.
Rajesh Kumar Awasthi and Another5. In
the said decision, a delay of about 19 years
was considered fatal.

18. Mr. Diptiman Singh, the learned
Counsel for the workman, on the other
hand, submits that a delay condonation
application was filed by the workman,
giving sufficient explanation for the delay
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1351
in the initiation of conciliation proceedings.
The delay was condoned by an order dated
09.03.2005. It is pointed out by Mr. Singh
that a copy of the said order is annexed as
Annexure CA-1 to the counter affidavit.
This order was never challenged by the
petitioner, and has become final. He
submits that once reasons for the delay
have been explained and the Conciliation
Officer has passed a specific order
condoning the delay, no objection can be
taken to the impugned award on ground of
the dispute being raised after a number of
years. Mr. Singh submits that there is no
limitation prescribed under the Act of 1947
and if it is an industrial dispute that is still
alive on the date the reference is made,
mere passage of time cannot vitiate the
reference or the resultant adjudication.
Reliance in this connection has been placed
by Mr. Diptiman Singh on the decision of
the Supreme Court in Kuldeep Singh v.
General Manager, Instrument Design
Development and Facilities Centre and
Another6 and also on another decision of
their Lordships in Prabhakar v. Joint
Director, Sericulture Department and
Another7.

19. There is no quarrel between
parties that there is no limitation prescribed
under the Act of 1947, where the passage
of a specific time period from a determinate
event would act as a temporal bar to the
raising of an industrial dispute. The
principle on which stale claims are said to
be not valid for adjudication is the
extinguishment of the industrial dispute
with passage of time. While passage of
time is in itself no ground to apply the
principle of laches to the adjudication of an
industrial dispute in the manner it is applied
to equitable jurisdictions, where no rule of
limitation is applicable, passage of a
considerable period of time is in itself a
pointer to the industrial dispute having
subsided. But again, since claims subject
matter of industrial disputes are not to be
discarded because of the mere passage of a
long period of time, delay cannot be the
sole index to infer a bar to the industrial
dispute. An industrial dispute that is raised
after a long passage of time, but with
events in the interregnum to show by
tangible evidence that issues had remained
alive, about which there was either strife or
attempts
at settlement, the industrial
dispute would still be alive. If the dispute is
alive after passage of a considerable period
of time in the sense that it is still a potent
peril to industrial peace, the reference
cannot be thrown out as a State claim. It is
here that the principle may be regarded
differently from laches where long inaction
in the commencement of proceedings by
itself would attract disentitlement, unless
the delay is satisfactorily explained.

20. Here, the parties have come up
with slightly varying dates about the
workman's engagement and the time that he
was retrenched. But, on the evidence
available and that found by the Labour
Court, there is no issue that the workman
claims to have been removed or retrenched
illegally w.e.f. 01.10.1989. During this
period of time, the earliest that the
workman raised the industrial dispute by
moving the Conciliation Officer at Bareilly
was through an application under Section
2-A of the Act of 1947, dated 25.09.2003.
The said application was accompanied by a
delay
condonation
application.
In
Paragraph No. 7 of the application seeking
conciliation
moved
at
Bareilly,
the
workman has acknowledged that it was
being made 12 years, 3 months and 25 days
after the event, that is his retrenchment.
This application was later on withdrawn
under an order of the Conciliation Officer
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
at Bareilly dated 12.03.2004 with liberty to
represent. A second application was moved
at Lucknow on 12.04.2004. That may not
be of much relevance to the issue about the
claim being stale, and, therefore, not worth
adjudication. But, it does show that before
25.09.2003, there was no evidence by way
of any step taken by the workman under the
law, that may evidence the industrial
dispute.

21. Again, merely because steps
under the law are not taken to raise an
industrial dispute or towards it, it cannot be
evidence about the industrial dispute being
smothered. In the world of industrial
relations, it is a potent probability that the
workman may be negotiating with the
employers
individually
or
bargaining
through a union. If there be evidence about
a negotiation with the employer in any
manner going on, where there is some kind
of an assurance to the workman, that his
grievance might be redressed, the industrial
dispute cannot be taken to be effaced.
Nevertheless, there has to be evidence
aliunde to show that the industrial dispute
was alive between parties, though no steps
available under the law were taken or the
remedies availed by the workman. If
evidence of that kind is there, certainly, the
process of resolution of an industrial
dispute under the Act of 1947 can be
initiated, notwithstanding whatever time
has passed.

22. To show that the dispute was alive
between parties, Mr. Diptiman Singh has
drawn attention of this Court to a list of
documents annexed as Annexure CA-3 to
the counter affidavit. A perusal of the said
list shows that there are some 13
applications
dated
30.07.1991
to
10.02.2003, said to be addressed by the
workman to the employer regarding his reengagement. Although, those applications
have been filed before the Labour Court
and bear Exhibit W3, W4 - W15, there is
no dependable
evidence
about
these
applications being actually delivered to the
employer. There are certificates of posting
that have been filed before the Labour
Court, relative
to these
applications.
Certificates of posting are highly suspect
evidence about dispatch, given the reputed
unworthiness of these documents, of which
the Court can take judicial notice. Even
assuming that the various applications
seeking re-engagement from the year 1991
to the year 2003 were made by the
workman, there is not a solitary document
to show that during this long period of 12
years and more, there was anything said by
way of an assurance by the employer, on
the basis of which the workman might
reasonably be held to have thought that
some kind of a negotiation about the
industrial dispute is underway or that he
must wait for the outcome of some bargain.
At best, these applications show unilateral
efforts by the workman across a decade and
two years and may be more, to seek reengagement,
with
the
employers
consistently turning a deaf ear. This being
the best inference that can be drawn from
the evidence comprising these applications
made to the employer, it is difficult to hold
that the industrial dispute was alive in all
these years. Mr. Diptiman Singh has then
drawn the attention of this Court to the
evidence of the workman's witnesses,
which includes him. He has testified as
D.W.1. On the issue of delay, D.W.2,
Narendra Babu Saxena, who was employed
with the employers from 26.02.1975 to
30.06.2008 as a Clerk and Senior Assistant,
has testified to the fact that after being
removed from service, the workman came
back to the employers time over again and
made applications, but the employer did not
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1353
re-engage him. This evidence is expressed
by D.W. 2 in the following words :

Naukri se nikale jane ke baad yeh
baar-2 aate rahe aur prarthna patra dete
rahe, lekin unko sahab se nahi rakha.

23. Likewise, D.W.3, Daya Ram, who
is said to have been posted with the
employers from 15.01.1959 to 31.01.1993
on some post described as a "patrol", has
said in his testimony :

Kshramik nikaale jaane ke baad
division office me sahab se naukri par
rakhne ke liye bar-bar aate rahe, aur
prarthna patra aadi bhi naukri par rakhne ka
dete rahe.

24. Accepting the said evidence to be
true and unrebutted, for the employers have
not led any, all that could be inferred is that
the workman unilaterally approached the
employer during all this period of twelve
years and more, endeavouring to be reengaged. While this evidence may show
efforts made by the workman to secure his
employment back and denial by the
employer, the absence of any further action
by the workman, with there being no
negotiation underway between him and the
employer, cannot lead to an inference about
an industrial dispute being alive in all this
while. The torpidity of the workman in the
face of denial by the employers over a very
long period of time is, in fact, a clear
evidence of his inaction. It does not show
any kind of strife or dispute.

25. An industrial dispute is something
that threatens industrial peace. A workman,
who, across a period of 12 years and more,
is content to visit the employers premises,
requesting the latter to re-engage him,
without doing anything more, cannot be
said to be a party to an industrial dispute.
The workman, who does not agitate his
rights during this long passage of time,
must be held to have accepted his fate and
submitted to the retrenchment. The exemployers' premises, being nothing more
than a frequent rendezvous to the workman,
with no further action to redress his
unlawful retrenchment, shows an industrial
dispute, if at all, that has withered away
with time. That is precisely the case here.
In this connection, reference may be made
to the decision of the Supreme Court in
Prabhakar (supra). After a survey of
authority on the point, their Lordships have
summarised the principles thus :

42. On the basis of the aforesaid
discussion, we summarise the legal position
as under:

42.1. An industrial dispute has to
be referred by the appropriate Government
for adjudication and the workman cannot
approach the Labour Court or Industrial
Tribunal directly, except in those cases
which are covered by Section 2-A of the
Act. Reference is made under Section 10 of
the
Act
in
those
cases
where
the
appropriate Government forms an opinion
that "any industrial dispute exists or is
apprehended".
The
words
"industrial
dispute
exists"
are
of
paramount
importance, unless there is an existence of
an industrial dispute (or the dispute is
apprehended or it is apprehended such a
dispute may arise in near future), no
reference is to be made. Thus, existence or
apprehension of an industrial dispute is a
sine qua non for making the reference. No
doubt, at the time of taking a decision
whether a reference is to be made or not,
the appropriate Government is not to go
into the merits of the dispute. Making of
reference
is
only
an
administrative
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
function. At the same time, on the basis of
material on record, satisfaction of the
existence of the industrial dispute or the
apprehension of an industrial dispute is
necessary. Such existence/apprehension of
industrial
dispute,
thus,
becomes
a
condition precedent, though it will be only
subjective satisfaction based on material on
record. Since, we are not concerned with
the satisfaction dealing with cases where
there is apprehended industrial dispute,
discussion that follows would confine to
existence of an industrial dispute.

42.2. Dispute or difference arises
when one party makes a demand and the
other party rejects the same. It is held by
this Court in a number of cases that before
raising the industrial dispute making of
demand is a necessary precondition. In
such a scenario, if the services of a
workman are terminated and he does not
make the demand and/or raise the issue
alleging wrongful termination immediately
thereafter or within reasonable time and
raises the same after considerable lapse of
period, whether it can be said that industrial
dispute still exists.

42.3. Since there is no period of
limitation, it gives right to the workman to
raise the dispute even belatedly. However,
if the dispute is raised after a long period, it
has to be seen as to whether such a dispute
still exists? Thus, notwithstanding the
fact that law of limitation does not apply,
it is to be shown by the workman that
there is a dispute in praesenti. For this
purpose, he has to demonstrate that even if
considerable period has lapsed and there
are laches and delays, such delay has not
resulted into making the industrial dispute
cease to exist. Therefore, if the workman is
able to give satisfactory explanation for
these laches and delays and demonstrate
that the circumstances disclose that issue is
still alive, delay would not come in his way
because of the reason that law of limitation
has no application. On the other hand, if
because of such delay dispute no longer
remains alive and is to be treated as "dead",
then it would be non-existent dispute which
cannot be referred.

42.4. Take, for example, a case
where the workman issues notice after
his
termination,
questioning
the
termination
and
demanding
reinstatement. He is able to show that
there were discussions from time to time
and the parties were trying to sort out
the matter amicably. Or he is able to
show that there were assurances by the
Management to the effect that he would
be taken back in service and because of
these reasons, he did not immediately
raise the dispute by approaching the
Labour Authorities seeking reference or
did not invoke the remedy under Section
2-A of the Act. In such a scenario, it can
be treated that the dispute was live and
existing
as
the
workman
never
abandoned his right. However, in this
very example, even if the notice of
demand was sent but it did not evoke
any positive response or there was
specific rejection by the Management of
his demand contained in the notice and
thereafter he sleeps over the matter for a
number of years, it can be treated that
he
accepted
the
factum
of
his
termination and rejection thereof by the
Management and acquiesced into the
said rejection.

42.5. Take another example. A
workman approaches the civil court by
filing a suit against his termination which
was pending for a number of years and was
ultimately dismissed on the ground that the
9 All State of U.P. & Anr. Vs. Presiding Officer, Labour Court, Lucknow & Anr.
1355
civil court did not have jurisdiction to
enforce the contract of personal service and
does not grant any reinstatement. At that
stage, when the suit is dismissed or he
withdraws that suit and then involves the
machinery under the Act, it can lead to the
conclusion that the dispute is still alive as
the workman had not accepted the
termination but was agitating the same;
albeit in a wrong forum.

42.6. In contrast, in those cases
where there was no agitation by the
workman against his termination and the
dispute is raised belatedly and the delay or
laches remain unexplained, it would be
presumed that he had waived his right or
acquiesced into the act of termination and,
therefore, at the time when the dispute is
raised it had become stale and was not an
"existing dispute". In such circumstances,
the appropriate Government can refuse to
make reference. In the alternative, the
Labour Court/Industrial Court can also hold
that there is no "industrial dispute" within
the meaning of Section 2(k) of the Act and,
therefore, no relief can be granted.

43. We may hasten to clarify that
in those cases where the court finds that
dispute
still
existed,
though
raised
belatedly, it is always permissible for the
court to take the aspect of delay into
consideration and mould the relief. In such
cases, it is still open for the court to either
grant reinstatement without back wages or
lesser back wages or grant compensation
instead of reinstatement. We are of the
opinion that the law on this issue has to be
applied in the aforesaid perspective in such
matters.

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 by Court)

26. Incidentally, in Prabhakar,
reference against the order of termination
made after 14 years was held not to give
rise to an industrial dispute, that was alive
and worth adjudicating.

27. The other decision relied
upon by Mr. Diptiman Singh does not lay
down any principle that may come to the
workman's rescue on the facts and evidence
obtaining in this case. In Kuldeep Singh, it
was held by their Lordships :

28. The view expressed in Sapan
Kumar Pandit [(2001) 6 SCC 222 : 2001
SCC (L&S) 946] which is identical to our
case has been considered and followed in
the subsequent decision, namely, S.M.
Nilajkar v. Telecom District Manager
[(2003) 4 SCC 27 : 2003 SCC (L&S) 380] .
In both the decisions, the principles laid
down in Nedungadi Bank [(2000) 2 SCC
455 : 2000 SCC (L&S) 283] have been
considered and distinguished. We have
already mentioned that in Sapan Kumar
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
Pandit [(2001) 6 SCC 222 : 2001 SCC
(L&S) 946] , this Court followed the
principles enunciated in a three-Judge
Bench decision of Western India Match Co.
[(1970) 1 SCC 225 : AIR 1970 SC 1205]

29. At this juncture, it is useful to
remind and reiterate the finding rendered
by the Labour Court on Issues 1, 5 and 6
holding that the termination of the services
of the workman/the appellant herein
without complying with the provisions of
Section 25-F is illegal, null and void and
deserves to be set aside. Undoubtedly, the
management has to follow the provisions of
the Act while effecting termination, in fact,
which was accepted by the Labour Court
and the management has not challenged the
same before any forum.

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 State Government is satisfied with the
ingredients of the provision, hence the
Labour Court cannot go behind the
reference.

31.