1. This writ petition has been filed for quashing the award dated 28.01.2009 passed in Reference No.32 of 2002 (Annexure – 1) by learned Presiding Officer of the Central Government Industrial Tribunal [No.1] at Dhanbad whereby it has been held that the action of the management in dismissing the concerned workman is not fair and justified and hence he is entitled to be reinstated with full back wages and other consequential benefits and has further directed the management of Gopinath Colliery of Mugma Area under Eastern Coalfields Limited [ECL] to implement the Award within 30 days from the date of publication of the Award.

Submission of learned counsel for the petitioner

2. Learned counsel for the petitioner submits that order of dismissal is 24.06.1982 which was challenged by the concerned employee before the Hon’ble Calcutta High Court after 15 years in W.P. No. 22533 of 1997 and the writ petition was dismissed on 20.02.1998, against which appeal filed before the Hon’ble Calcutta High Court was also dismissed vide order dated 24.02.1999 as the appeal was also barred by limitation of 254 days was also rejected.

3. He has referred to the averments made in the I.A. No.1722 of 2009 paragraph 16 and also placed the order in the writ petition passed by Hon’ble Calcutta High Court and submits that the case was dismissed on account of delay and laches and as such there was no scope for raising any industrial dispute arising out of the same order of dismissal. He submits that this aspect of the matter was suppressed before the learned Tribunal and the Tribunal proceeded on merits.

4. The order of reference is dated 19.09.2001 which is after the dismissal of the writ petition before the Hon’ble Calcutta High Court and also after dismissal of the appeal arising out of the writ petition. Reference was made after 19 years from the date of dismissal.

5. The learned counsel has also submitted that the reference was under clause (d) of sub section 1 of Section 2(A) of the Industrial Disputes Act wherein a period of limitation of 3 years has been provided for the individual workman who raises the industrial dispute. He has submitted that this aspect of the matter has not been considered by the learned Labour Court. He has referred to Section 2(A) (3) of Industrial Disputes Act, 1947.

6. He has also submitted that the workman has already expired and therefore there is no question of any reinstatement, what remain is only the back wages.

7. The learned counsel has referred to definition of Industrial dispute under Section 2(k) and has submitted that since the concerned workman never raised any dispute with the management and therefore the reference itself was bad in law.

8. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in AIR 1968 SC 529 (Sindhu Resettlement Corporation Ltd. versus Industrial Tribunal of Gujarat and Others) and referred to paragraph 4 of the said judgment to submit that if no dispute is at all raised with the management, then any request sent by the concerned Union/employee would only be a demand made by them and not an industrial dispute between them and their employer. A mere demand to a government, without a dispute being raised by the workmen with their employer, cannot be an industrial dispute. He submits that on the said count, the Hon’ble Supreme Court has held that reference made by the Government was not competent.

9. The learned counsel has also referred to the judgment passed by the Hon’ble Supreme Court reported in (2015) 15 SCC 1 (Prabhakar versus Joint Director, Sericulture Department and Another) and has submitted that the term ‘at any time’ used in Section 10 has been interpreted and it has been held that industrial dispute could not have been referred for adjudication by Labour Court/Tribunal as the reference was made after 14 years of termination without any justifiable explanation for delay and the appropriate government had no jurisdiction or power to make reference of non-existing dispute. He submits that the said pronouncement was with respect to Section 10 of the Industrial Disputes Act where the government had refused to refer the dispute for adjudication. However, in the present case, the reference is under Section 2(A) of Industrial Disputes Act and therefore it will be governed by the limitation as provided under Section 2(A) i.e. 3 years.

10. During the course of hearing, it transpired that the domestic enquiry was held to be unfair by the learned Tribunal vide order dated 31.08.2006.

Submission on behalf of the Respondents

11. During the course of hearing, learned counsel for the respondents does not dispute that the respondent-workmen had approached Hon’ble Calcutta High Court challenging his order of dismissal and the writ petition was dismissed on account of delay and laches in raising the dispute and further the appeal against the writ order was also dismissed being barred by limitation.

12. However, he submits that the fact that workman had moved Calcutta High Court was within the knowledge of the management as the management was party before Hon’ble Calcutta High Court and therefore, it was for the management to raise such objection before the learned Tribunal. The management having not raised such objection cannot raise such a ground for the first time in the writ proceeding. He submits that at the stage of the writ petition only the perversity in the award is required to be seen.

13. Learned counsel submits that since no such ground was raised by the management before the learned Tribunal, under such circumstances, such ground cannot be raised by the learned counsel for the writ petitioner before this Court.

14. He further submits that the industrial dispute was raised through reference by the government and therefore, Section 2 A (iii) does not come into play. Section 2A(iii) comes into play only when the workman directly moved to labour court in terms of Section 10(2) of the Industrial Dispute Act. He submits that the law is well settled that reference can be made ‘at any time’ and therefore, the learned Tribunal has rightly rejected the plea of belated reference.

15. Learned counsel further submits that the enquiry was held to be unfair vide order dated 31.08.2006 and the management was given opportunity to lead evidence, but the management having not led any evidence, the learned Tribunal had no option but to reinstate the workman with full back wages. He submits that the learned Tribunal has also referred to the judgment passed by the Hon’ble Supreme Court in the case reported in I.F.L.R. 1999 (81) page 188 [Neeta Kaplish vs. Presiding Officer Labour Court] wherein it has been held by the Hon’ble Supreme Court that in the event the enquiry is held not fair and proper and if the management fails to prove charge, the workman is entitled to reinstatement with full back wages. Learned counsel submits that in aforesaid circumstances, it was irrelevant as to whether the concerned workman was gainfully employed or not during the period he was out of employment.

16. He further submits that a petition under Section 17B of the Industrial Dispute Act was allowed by this Court, and therefore, there can be no dispute that the concerned workman was not gainfully employed during the period involved in this case.

17. Learned counsel further submits that without prejudice to the aforesaid submission, at least the concerned workman should be entitled for back wages from the date he raised the industrial dispute in the year 1999 till his age of superannuation in the year 2015. Learned counsel submits that there is no question of any re- instatement on account of the fact that the concerned workman has already expired and he had also attained the age of superannuation.

18. The learned counsel for the respondents during the course of argument has placed the written statement filed by the concerned workman before the learned Tribunal and has fairly submitted that there is no such statement in the written statement filed by the workman that the workman remained unemployed from the date of his dismissal. However, he has submitted that the petition under Section 17B has been allowed by this Court wherein it has been mentioned that he was not gainfully employed anywhere, and therefore, that should be sufficient and it should be taken into consideration that the respondent remain unemployed.

19. The learned counsel for the respondents has referred to the judgement passed by this Court reported in 2016 SCC OnLine Jhar 740 (Workmen being represented by Janta Mazdoor Sangh Vs. Employers in relation to the management of Bhalgora Area) paragraph 5 to submit that the writ courts do not sit in appeal, and therefore, the scope of interference under Article 226 of the Constitution of India is very limited. On the same point, he has referred to the judgement passed by this Court in W.P.(L) No. 6820 of 2012 (Employers in relation to the Management of Karo Project of M/s CCL Vs. Central Government Industrial Tribunal No.1 and Ors.) decided on 17.08.2017 paragraph 10 and also the judgement reported in AIR 1964 SC 477 (Syed Yakoob Vs. K.S. Radhakrishnan and Ors.).

20. On the point of back-wages, he has relied upon the judgement passed by the Hon’ble Supreme Court reported in (2005) 3 SCC 193 (Management of Madurantakam Coop. Sugar Mills Ltd. vs. S. Viswanathan) paragraphs 5, 6 and 12 to 19. He has also relied upon the judgement reported in (2014) 6 SCC 434 (Iswarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Limited and Another) paragraphs 15, 19 and 21.

21. The learned counsel has also submitted that the petitioner being public sector organization and model employer should not shy away from doing justice to the widow of the concerned workman.

Findings by this Court

22. Admittedly, the concerned workman was terminated from service vide order of dismissal dated 24/25.06.1982, after subjecting the concerned workman to domestic inquiry pursuant to charge sheet dated 11.03.1981 wherein following allegations were made:

                  (i) Distortion of figure of actual amount by overwriting after the signature of the Manager and also before the signature of the Manager.

                  (ii) Payment of less-wages than the actual amount billed to some of the Under Ground Loaders of E.B. Section.

                  (iii) Not mentioning the amount of wages paid in the Identity Card in some cases, waiving the Standing Instruct of the Company.

23. A reference was made for adjudication of following dispute to the Central Government Industrial Tribunal I, Dhanbad under Section 10 (1) (d) (2A) of Industrial Disputes Act vide order dated 19.09.2001 and the terms and reference is quoted as under:

                  “Whether the action of the management of M/s ECL in dismissing Sri Subodh Gorai from the service of the company is fair and justified? If not, to what relief is the concerned workman entitled?”

24. So far as the arguments of the learned counsel for the petitioner that the reference was barred under Section 2 A (3) of Industrial Disputes Act, 1947 which provides a period of 3 years from the date of discharge/dismissal or retrenchment or otherwise termination of the service of workman does not apply to the facts of this case. The provision of Section 2A (3) applies with circumstances covered under Section 2 A (2). In the present case, the reference has been made under Section 10 of Industrial Disputes Act and the case was not instituted upon the workman approaching the Tribunal directly in terms of Section 2A (2) and accordingly the limitation prescribed under Section 2 A (3) of Industrial Disputes Act, 1947 does not apply to the facts and circumstances of this case. The argument of the appellant in this regard is hereby rejected. However, it still remains to be examined whether the reference was bad and the dispute had become stale and whether the workman suppressed material facts from the authority/learned tribunal.

25. Prior to reference, after expiry of 15 years from date of dismissal, the workman challenged the order of dismissal in writ petition before Calcutta High Court and after expiry of more than 19 years from the date of dismissal, the aforesaid reference was made.

26. It is also important to note that admittedly the concerned workman had challenged the order of dismissal before Hon’ble Calcutta High Court after 15 years in writ petition being W.P. No.22533 of 1997 which was dismissed on 20.02.1998. The order of dismissal of the writ petition has been placed on record by the learned counsel appearing on behalf of the writ petitioner and the order of dismissal of the writ petition dated 20.02.1998 is quoted as under:

                  “The petitioner has questioned the order of his dismissal from service in the above writ petition.

                  By an order dated 24th June, 1982 the petitioner was dismissed from service as he was found guilty of offence of grave nature. The enquiry was conducted against the petitioner and charges were held to be proved against the petitioner.

                  After a lapse of over fifteen years the petitioner has chosen to question the said order of dismissal which is annexure-D to the writ petition. The above writ petition has been filed after 15 years of the order of dismissal.

                  Therefore, for his own laches the writ petitioner has disentitled himself for getting any relief. On this short ground this writ Petition is dismissed but in the circumstances without costs.

                  Let urgent certified xerox copy of this order be handed over to the 1d. Advocate for the petitioner if it is applied for.”

27. LPA was filed against the order of dismissal of the writ petition and LPA was also dismissed vide order dated 24.02.1999 on the point of limitation of 254 days and other technical defects in the memo of appeal. The order of LPA is quoted as under:

                  “In our view, there is no ground for condonation of delay in filing the appeal.

                  The appellant was dismissed from the service of the respondents in the year 1982. The writ petitioner was preferred for the first time against such dismissal in the year 1997, which was dismissed on 20th February 1998.

                  The memorandum of appeal was filed after a long delay of 254 days, and that too, without disclosing proper ground for such delay. Even in the copy meant for the second judge, there are blank places which have not been filled up.

                  There cannot be any better proof of abusing process of court.

                  The application for condonation of delay in filing the appeal is dismissed.”

28. The writ petition and the appeal was filed by the concerned workman before the Hon’ble Calcutta High Court, and therefore, it was for the workman to disclose this fact before the authority referring the dispute for adjudication and also before the learned Tribunal to whom the dispute was referred for adjudication. The argument of the learned counsel for the workman that the management was a party to the writ petition and the appeal and hence even they could have disclosed this fact to the tribunal is devoid of any merits. Non- disclosure about filing of the writ petition before Calcutta High court and its dismissal and also dismissal of the appeal amounts to suppression of materials facts from the learned tribunal. This is coupled with the fact that even the order of the writ court and the appellate court do not reveal that any notice was ever issued to the employer/present petitioner.

29. Both the parties filed their respective written statements before the learned Tribunal on merit and a specific plea was also raised by the management that the reference was a belated one. The plea of belated reference was rejected by the learned Tribunal.

30. Admittedly, the reference was made after expiry of about 19 years from the date of dismissal of the concerned workman and the plea of claim being a stale was also raised by the management, but the same was rejected by a cryptic order in the impugned award itself vide paragraph 7 of the impugned award which is quoted as under:

                  “The main argument on behalf of the management is that the reference has been made very late, but there is no force in the argument of the management as in the Industrial Disputes Act there is no limitation, so on this ground, the reference cannot be rejected.”

31. The aforesaid order rejecting the plea that the dispute was a stale dispute has been rejected by observing that the dispute can be raised at any time. The learned tribunal has also referred to certain judgements which was relied upon by the concerned workman who submitted that the industrial tribunal cannot go into the validity of the reference but it has to answer the reference and the reference cannot be rejected on the ground of delay. However, no further discussion has been made with respect to such submissions. The learned Tribunal was wrong in its approach and this is apparent from the judgement passed by the Hon’ble Supreme Court in the judgement reported in (2015) 15 SCC 1 (Prabhakar Vs. Joint Director, Sericulture Department and Another) wherein it has been held that even the labour court/tribunal has the jurisdiction to decide as to whether the dispute is a stale one or not and this would essentially depend upon the facts and circumstances of the case. In the judgement passed by the Hon’ble Supreme Court reported in (2015) 15 SCC 1 (Prabhakar Vs. Joint Director, Sericulture Department and Another) the word ‘at any time’ used in Section 10 of Industrial Disputes Act have been considered. It has been held that the import of such word implies the existence of live industrial dispute which has not become a stale claim and also observed that whether the dispute is live or stale claim would depend upon the facts and circumstances of each case and no hard and fast rule for making order of reference can be laid down. In the said case, the industrial dispute was raised after 14 years of termination.

                  The Hon’ble Supreme Court summarized the legal position with respect to raising of industrial disputes as under: -

                  “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 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 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.”

32. Thus, refusal of the learned industrial tribunal to give a finding as to whether the dispute raised by the workman was stale or not and proceeding to decide the same by observing that dispute can be raised at any time, is perverse. This is over and above the fact that the concerned workman had suppressed material facts from the learned tribunal that he had moved Calcutta High Court after 15 years in W.P. No.22533 of 1997 and the writ petition was dismissed on 20.02.1998, against which appeal filed before the Hon’ble Calcutta High Court was also dismissed vide order dated 24.02.1999 as the appeal was also barred by limitation of 254 days. Further, in the entire case records there is no explanation for enormous delay in raising the industrial dispute. Reference was made after 19 years of order of termination of the concerned workman.

33. Accordingly, the impugned order dated 28.01.2009 is hereby set aside and the writ petition is allowed.

34. Pending interlocutory application, if any, is dismissed as not pressed.