1. Heard. Rule. Rule made returnable forthwith. With consent of the both sides, matter is taken up for final hearing at the stage of admission.

2. The present Petition is second round of litigation between the parties. In the earlier round of litigation, this Court, vide Judgment dated 20/6/2017 in Writ Petition No. 5626/2014 quashed and set aside the order dated 16/1/2014 passed by the Labour Court, Akola in Reference IDA No. 26/2007 and remanded back the matter to the Labour Court for its disposal in accordance with law. Accordingly, the learned Labour Court, by the impugned Judgment dated 24/11/2017 decided the proceeding bearing Reference (IDA) No. 26/2007and held that the Petitioner has illegally terminated the services of the Respondent and thereby quashed and set aside the same and directed the Petitioner/Corporation to reinstate the Respondent/Employee along with continuity of service and to pay 50% back wages since the date of termination till the date of reinstatement.

3. The learned Counsel for Respondent/Employee has pointed out that the date of birth of the Respondent as per his School record is dated 1/7/1965 and now he has attained the age of superannuation i.e. 60 years, and therefore, there is no question of reinstatement in service. In the present case, this Court is required to be looked into the correctness and validity of the Judgment dated 24/11/2017 only to the extent of continuity of service and back wages delivered by the learned Labour Court, Akola.

4. In the present Petition, the contention of the Petitioner is that since this Court has remanded back the proceeding for deciding the same afresh in accordance with law, it was expected from the learned Labour Court to consider the entire controversy afresh, however, the learned Labour Court has only decided the issue of delay and by recording the finding that there was a sufficient cause explained by the Respondent/Employee, allowed the Complaint. Hence, according to the Petitioner, as the entire issues are not dealt with, the Petition needs to be again remanded back to the Labour Court to decide afresh.

5. In this regard, it is the contention of the Respondent/Employee that he has already attained the age of superannuation. He is litigating his cause since his date of termination i.e. 9/5/2000, therefore, considering the fact that the Respondent/Employee would not be in a position to litigate his cause, he requested to decide the Petition on its own merits.

6. The Respondent/employee further pointed out from the order of this Court dated 20/6/2017 that this Court, while deciding the Petition did not touch to the merit, which was recorded by the Labour Court in favour of the Respondent. This Court has only dealt with the issue of delay in lodging the grievance by Respondent before the Conciliation Officer, and therefore, the matter was remanded back to frame appropriate issue on the delay and decide the same on merits. The Respondent has specifically pointed out the finding recorded by this Court in the Judgment dated 25/6/2017 in paragraph Nos.7 and 8, which are reproduced as under :

                   “7. Learned Counsel for Petitioner submitted that respondent ought to have raised the dispute within a reasonable time and in a rational manner. Submission is that unexplained delay in raising the dispute makes the dispute non-existent and stale. According to the learned Counsel, a dispute which is stale could not be the subject matter of reference under Section 10 of the Industrial Disputes Act, 1947. In support, reliance is placed on the decision of the Hon’ble Supreme Court in Nedungadi Bank Limited vs. K. P. Madhavankutty and others – [2000 I CLR 671].

                   8. Needless to state that when the pleadings regarding raising the dispute belatedly were raised by Corporation in the written statement and denied by respondent in his application before Conciliation Officer, Labour Court ought to have framed issue as it was relating to mixed question of law and facts. Failure of the Labour Court in framing the issue on delay is an error of law apparent on the face of record and on this short ground, reference needs to be remanded to the Court below for framing appropriate issue on delay and deciding the same after giving opportunity to both the parties to amend the pleadings and lead evidence, if they so desire.”

7. In my opinion, considering the submission of the Respondent in the matter and the perusal of the order passed by this Court, it would be justified to decide the present Petition on the point of delay as well as merits of the Petition.

8. Both the learned Counsel have advanced their arguments on the point of delay as well as merits of the matter and hence I proceed to decide the present Petition on both the issues.

9. In the present case, the Respondent/Employee has filed the Conciliation Proceedings under Section 2-A of the Industrial Dispute Act, 1947 on 31/8/2006 before the Assistant Commissioner of Labour, Akola. It is the submission of Respondent that in the year 1980 Municipal Council, Akola has engaged 64 employees as ‘Coolie’ in the sanitation department on daily wages basis. Out of the said 64 employees, 14 employees have left their job and two employees were expired in the year 2000. It is also pointed out that in place of the said 14 employees out of 64, the Municipal Council has engaged 16 workmen including the Respondent. The Applicant further states that the Castribe Karmachari Mahasangh, Maharashtra State, Nagpur (for short, ‘the Union’) through its President filed Complaint ULP No. 554/1994 before the learned Industrial Court, Akola for regularisation of services of 64 employees. The said complaint was allowed by the Industrial Court, Akola vide Judgment dated 18/12/1998 and the Municipal Council, Akola was directed to regularise the services of 64 employees as Class-IV employees and to pay them wages. The said Judgment was challenged by the Municipal Council, Akola before this Court in Writ Petition No. 970/1999. The same was dismissed vide order dated 19/4/1999.

10. After the Judgment passed by this Court, the process of regularisation was started. During that process as stated above, 14 employees left the job and two employees were expired and the Respondent along with the other employees were inducted in the employment of Municipal Council, Akola. The proposal for regularisation was then forwarded to the Government for its approval in terms of the order of the Industrial Court as well as this Court. At that time, the Association has written a letter dated 14/3/2000 to the Municipal Council, Akola and thereby requested to accommodate 14 employees who were replaced by the employees, who left the job. On the basis of the said letter, the legal opinion of Adv. R. R. Deshpande was sought by the Municipal Council. The legal opinion was given in favour of the employees by asking to the Municipal Council that their services can be regularised. However, the said legal opinion was not acted upon and the services of the Respondent was terminated.

11. The Respondent, in view of termination order, was running pillar to post to get the reinstatement in the service, however, there was no positive response from the Petitioner/Municipal Council. In the meantime, the Municipal Council was converted into Municipal Corporation. After the establishment of Municipal Corporation, Respondent came to know that identically situated employees and also some of the employees out of 16 employees, who were replaced to the employees who left the job, approached to the Labour/Industrial Court and the Court has directed to reinstate their services. The Respondent, therefore, issued approach notices on 28/1/2005 and 21/6/2006 to the Municipal Corporation, Akola and requested to reinstate him on former post with continuity in service and back wages. But, there was no response to his notices and hence he has moved the Application under Section 2-A of the Industrial Dispute Act, 1947 before the Conciliation Officer. The same was referred by the Additional Commissioner of Labour, Nagpur to the Labour Court under the provisions of Industrial Disputes Act, 1947.

12. Before the learned Labour Court, the Petitioner/Corporation denied all adverse allegations. It is their contention that the name of the Respondent was never included in the list of 14 employees as alleged by the Respondent. It is stated that there were no sanctioned post of ‘Coolie’ and they have already appointed by following the due procedure of law, hence submission of the Respondent/Employee cannot be accepted. According to the Petitioner, Respondent was never appointed as per the Rules and procedure of the recruitment against the post of ‘Coolie’. It is stated by them that Respondent was never worked as ‘Coolie’ from 1992 to 2000 and consequently not completed 240 days. As such, there is no relationship of Employer-Employee between them.

13. In the background of abovesaid factual position learned Labour Court by it’s judgment dated 16/01/2014, decided the Reference proceeding. It is held that termination of Respondent/Employee dated 09/05/2000 is illegal and directed to reinstate the Respondent/Employee alongwith continuity of service and to pay 50% backwages since the date of termination till the date of reinstatement.

14. The said judgment of Labour Court was challenged in Writ Petition No. 5626/2014. This Court by it’s judgment dated 20/06/2017 by considering the fact that, Labour Court without framing issue of limitation as well as no findings are recorded on delay, remanded back proceeding to Labour Court, to decide afresh by framing appropriate issue on delay.

15. It is pertinent to note that after remanding the matter back to the Labour Court, the Respondent/Employee has entered into the witness-box and explained the delay. The Respondent was cross-examined by the Petitioner before the Labour Court. The Petitioner did not enter into the witness-box to rebut the contention of the Respondent nor brought any contrary evidence on record. In the background of the evidence which was recorded before the Labour Court, the Labour Court has recorded the findings that there was a sufficient reasons for condonation of delay and further he was prosecuting his case from the date of termination, and therefore, it cannot be held that it is a stale claim. Accordingly, by the impugned Judgment dated 24/11/2017 answered the Reference in affirmative and confirmed the earlier judgment passed by the Labour Court.

16. The Petitioner has attacked on the evidence which was recorded before the Labour Court in support of explanation of delay and to prove the stale claim by the Respondent. According to the Petitioner, the Respondent/Employee could not explain that after his termination, to which Advocate, he approached for filing the proceeding nor he has satisfactorily explained the delay of seven years caused in filing Conciliation Proceedings before the Conciliation Officer, therefore delay is not properly explained. Hence, the impugned Judgment deserves to be quashed and set aside.

17. In support of this submission, the learned Counsel for Petitioner has relied upon the Judgment of the Hon’ble Supreme Court of India in the case of Nedungadi Bank Limited V/s K. P. Madhavankutty, 2000 (2) SCC 455 and the Judgment of this Court in the case of Executive Engineer, Public Works Department V/s Namdeo Govindrao Nandurkar, 2011(4) Mh.L.J. 33. By placing reliance on these two Judgments it is the submission of the Petitioner that though law does not prescribe any time-limit to file the Conciliation Proceedings, the said powers needs to be exercised within a reasonable time. According to the Judgment of the Hon’ble Supreme Court in the facts of the said case, delay of seven years to exercise the powers by the appropriate Government under Section 10 of the Industrial Dispute Act was held to be not rational and on the count of delay dismissed the proceedings. So also according to the Petitioner as per the view expressed by this Court in the case of Executive Engineer PWD V/s Namdeo Govindrao Nandurkar (supra), this Court has culled out the guiding principles to consider the question of delay. As per the said guidelines, the proceeding under the Industrial Dispute Act should be filed within a reasonable period and the onus of showing that the dispute was raised within a reasonable time is upon the employee. This Court, while culled out the guidelines, has further held that in case the workman failed to explain the delay, then in that case the relief to the workman should not be denied on the ground of delay and it should be appropriately moulded by denying full or partial back wages, is the matter of exercising judicial discretion depending upon the facts and circumstances of the case. On the basis of this submission, the Petitioner states that on the ground of delay, Conciliation Proceedings initiated by Respondent/Employee deserves to be dismissed on this count alone.

18. The Respondent/Employee has pointed out that this Court has considered only the issue of delay and thereby remanded the matter back to the Labour Court. According to him, he has proved the delay by entering into the witness-box. He has explained before the Labour Court that he being an uneducated person, was not in a position to immediately initiate the legal proceeding. According to him, he was continuously in touch with the office of the Petitioner/Corporation. However, his grievance was not considered. According to him, as he was in touch with the Petitioner/Corporation, he got knowledge of the orders passed by the Industrial Court in the case of Tejrao Mahadeo Bansod and Shyam Ganpat Dongre. He also stated that due to their reinstatement by Municipal Corporation in service, he was under impression that he will be absorbed in the light of the Judgment of the Industrial Court, but the Petitioner/Corporation did not consider his grievance.

19. The Respondent on oath stated that due to his poor financial condition he could not engage trained Lawyer to file proceeding. According to him, without legal fees nobody was ready to help him, and therefore, he required to approach before the officials of the Union and requested them to file dispute before the appropriate Authority. As per the Respondent, the officials of the Union have given him shelter and then he filed the dispute before the appropriate Authority. The Respondent states that officials of the Nagar Palika Castribe Labour Union had issued approach notices dated 28/1/2005 and 11/8/2006 to the Municipal Corporation which were duly received by the Municipal Corporation, but never replied to the same. Hence, in this background, he has filed Conciliation Proceeding on 31/8/2006.

20. The Respondent further stated that in the cross-examination which was conducted by the Petitioner, only because he could not tell the names of the Advocates, to whom he approached, or not initiated the proceedings immediately, cannot be a reason to not entertain the Complaint by the Labour Court. The Respondent/Employee has relied upon the Judgment of the Hon’ble Supreme Court of India in the case of Ajaib Singh V/s Sirhind Cooperative Marketing-Cum-Processing Service Society Limited and Another, (1999) 6 Supreme Court Cases 82. In the said Judgment, the Hon’ble Supreme Court, by considering the object of the Industrial Dispute Act as well as the provisions of the Act has held that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Industrial Dispute Act and that the relief cannot be denied to the workman merely on the ground of delay. The observation recorded by the Hon’ble Supreme Court of India in the said case, in paragraph No.10, reads as under :

                   “10. It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases". However, it went on further to say that

                   "reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay".

                   We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the 9 function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted herein above and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act.”

21. In the present matter, while considering the issue of condonation of delay, in my opinion, the object of the Act is required to be taken into consideration. The Industrial Dispute Act was brought on the statute-book with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. The object of the Act is to improve the service conditions of the industrial labour so as to provide for them the ordinary amenities of life and by the process, to bring about the indusial peace which would in its accelerate productive activity of the country resulting in its prosperity. In view of this, provisions of the Act have to be interpreted in a manner which advances the object of the legislature contemplated in the Statement of Object and the Reasons.

22. According to the provisions of the Act attempt should be made to avoid industrial unrest, secure industrial peace and to provide machinery to secure the end. In view of the object of the Act, the Court has to always emphasis the doctrine of social justice, which is founded on the basic ideal of socio-economic equality as enshrined in the Preamble of our Constitution.

23. In the light of the object of the Act and the evidence which is recorded by the Respondent/Employee before the Industrial Court and the findings, which are recorded by the Labour Court while deciding the issue of condonation of delay and the stale claim, I am satisfied that the delay is satisfactorily explained and there was no intentional delay on the part of the Respondent to redress his grievance. From the evidence it is clear that the Respondent being a poor workman and being in a weak financial condition, could not approach within the reasonable period before the Authorities. Hence, the delay which is condoned, is proper and legal in the matter.

24. In respect of merits of the case, though the Petitioner has objected that the learned Labour Court, after remand of the matter, did not consider the merits of the matter and only on the issue of condonation of delay decided the Complaint, therefore, the same is required to be remanded back. In my opinion, in the first round of litigation, the learned Labour Court, by its Judgment dated 16/1/2014 has recorded the sufficient reasons as to how the action of the Petitioner/Corporation is illegal. This Court, while deciding the Writ Petition did not touch to any of the merit recorded by the Labour Court in the said Judgment. Only on the ground of delay, the matter was remanded back with specific direction to frame the issue of delay and decide the same on merits. Therefore, practically speaking the findings recorded by the Industrial Court, is not expected to be reverse, unless same are specifically found perverse or any Higher Court held the same as illegal. In that view of the matter, only because the Industrial Court has not reiterated the entire finding, the Judgment cannot be held illegal.

25. In the present matter, on perusal of the impugned Judgment it is seen that the learned Labour Court, while deciding the proceeding afresh, has framed the issues, viz-

                   (i) Whether the services of the Respondent were illegally terminated?

                   (ii) Whether he is entitled for reinstatement with continuity of service and full back wages?

These issues were discussed in the Judgment, but only because same were not discussed, as like in the earlier round of litigation, cannot be a ground to set aside the Judgment and Order. This aspect can be tested by this Court in the matter, particularly when the learned Labour Court has applied its mind on the issues, which were already decided in the matter and thereby recorded the affirmative finding in respect of both these issues.

26. The Respondent has pointed out that this Court always inclined to decide the issue on merits and for that purpose pointed out the order of this Court dated 25/2/2020, whereby this Court after hearing the matter extensively and was of the opinion to decide the same on its merits. Accordingly, the Respondent was directed to place on record the documents which are available on the record of the Court below to indicate the employment of the Respondent by the Petitioner. Accordingly, the Respondent has placed on record the document by way of pursis dated 28/11/2022. The Respondent/Employee has placed on record the communication from the Union to the Chief Officer, Nagar Parishad, Akola dated 14/3/2000 (Exhibit-13.6), whereby it is informed that since 14 employees out of 64 have left their job and 2 employees found to be expired, has communicated the names of 16 employees to the Chief Executive Officer with a request to absorb them in the employment. The name of the Respondent in the said list is at Sr. No. 8.

27. The Respondent further placed on record the legal opinion dated 17/3/2000, which was obtained by the Municipal Council as per the letter dated 27/2/2000 in case of 64 labours working on the trucks in sanitation department. As per the said legal opinion, it was opined that the Municipal Council should absorb all these 15 employees as their names are appearing in the service list in accordance with the proposal forwarded to the State Government. The Respondent also placed on record –

                   (i) the copy of Judgment dated 18/12/1998 in Complaint ULP No. 554/1994 passed by the Industrial Court, Amravati, whereby the directions were issued to the Petitioner/Corporation to regularise the services of the Respondent as Class-IV employee and to pay him wages;

                   (ii) the order passed by this Court in Writ Petition No. 970/1999, whereby the Writ Petition filed by the Petitioner/Corporation was dismissed;

                   (iii) the copy of communication from the Nagar Parishad, Akola to the directorate of Municipal Administration, Mumbai dated 19/8/1999 for absorption of the workers on the establishment of Nagar Parishad, Akola along with the list, in which, name of Respondent is recorded at Sr. No. 60;

                   (iv) The appointment order dated 18/12/2003 in respect of Tejrao Mahadeo Bansod in pursuance of the Judgment of the Industrial Court; and

                   (v) the orders of this Court, whereby the Petitioner/Corporation has compromised the matter in respect of Rajesh Arjun Ingle and Shyam Ganpat Dongre.

On the basis of these documents, it is the submission of the present Respondent that he had established his case before the Labour Court.

28. In the present matter, documents which were placed on record in the evidence, which was recorded before the Labour Court, it is clear that the Industrial Court has granted regularisation to 64 employees. Out of said 64 employees, 14 employees have left their job and two employees were expired. It is also pleaded that in place of 16 employees, names of 16 employees were supplied by the Union. The list of 16 employees is as under :

                   * Ramesh Rambhau Gaikwad at Sr. No. 14;

                   * Samadhan Latusa Kambale at Sr. No. 29;

                   * Ramrao Shirsath at Sr. No. 31(who is dead);

                   * Yuvraj Ramrao Shirsath at Sr. No. 41;

                   * Vishal Gautam Sirsath at Sr. No. 51;

                   * Ganpat Dhannuji Dongare at Sr. No. 53;

                   * Bhimrao Vishwas Damodar at Sr. No. 54;

                   * Sachin Uttamrao Mohod at Sr. No. 55;

                   * Rajesh Arjun Ingale at Sr. No. 56;

                   * Pravin Shalikram Shirsath at Sr. No. 57;

                   * Sahebrao Bhimrao Shirsath at Sr. No. 58;

                   * Shridhar Raybhan Shirsath at Sr. No. 59;

                   * Ashok Baliram Shegokar at Sr. No. 60 (Respondent);

                   * Deepak Namdeo Tayade at Sr. No. 61;

                   * Sharad Yadavrao Chakre at Sr. No. 62; and

                   * Raju Maroti Thombare at Sr. No. 63; as seen from the letter dated 19/8/1999.

29. It is pertinent to note that out of these 16 employees, one employee namely, Rajesh Ingale (Sr.No.56) approached before the Labour Court and his Complaint was allowed. Against the said order, the Petitioner has filed Writ Petition No. 1431/2007. The said Writ Petition has been withdrawn by the Petitioner by filing the joint pursis that they are ready to accommodate the said employee. Likewise, in the case of Sahebrao Bhimrao Shirsath Sr. No. 58, filed the proceeding before the Labour Court. Same was allowed. The same was again challenged by the Petitioner before this Court in Writ Petition No.1432/2007. The same was also withdrawn by the Petitioner by filing joint pursis that they are ready to accommodate Sahebrao Shirsath in their service.

30. In view of this fact, it is clear that out of 16 employees, Respondent/Employee has adopted the policy of pick and choose and continued them in service. According to the Respondent, once the employees out of the list of 16 persons are accommodated by the Petitioner/Corporation, there is no reason to come with a submission before this Court that the said employees were never appointed by the Petitioner/Corporation, and therefore, they are not entitled for any relief.

31. It is necessary to note that the Respondent/Employee has attempted to establish his employment on the basis of document referred above. But at the relevant time same were not available with him. In view of the same, he has specifically moved the Application before the Labour Court directing the Petitioner/Employer to produce those documents on record, which are in the custody of Petitioner/Corporation. However, though the Labour Court has passed the order directing to the Corporation to produce relevant documents, same were not produced by the Petitioner/Corporation. Hence, the Reference Court, by drawing conclusion on the basis of oral and documentary evidence, allowed the Reference proceeding.

32. It is also pertinent to note that the Petitioner, during cross-examination has admitted before the Labour Court that the proposal has been sent for sanction and after getting sanction they have given appointment to 48 persons. The said witness further admitted that no appointment orders were given to the remaining 16 persons, who were appointed on daily wages. It is also admitted that they have given the appointment to Rajesh Arjun Ingle, Sahebrao Shirsath, Shridhar Raybhan Shirsath and Vishal Gautam Sirsath on the posts of ‘Coolie’, as per the order of this Court.

33. Hence, for the abovesaid reasons, I do not find any merit in the present Petition.

34. In the present matter, the Respondent/Employee has pointed out that he has attained the age of superannuation after 60 years of age, and accordingly, superannuated on 30/6/2025 and therefore, he cannot be reinstated. In view of this, Writ Petition stands disposed of only by modification to the Judgment dated 24/11/2017 passed by the Labour Court, to the extent that -

1. The Petitioner/Corporation is directed to reinstate in service on the post of ‘Coolie’ with continuity in service and pay back wages since the date of termination i.e. 9/5/2000 till the date of superannuation i.e. 30/6/2025 within a period of six months from the date of this order.

2. Rest of the Judgment and Award dated 24/11/2017 is confirmed.

3. Rule is discharged. No order as to costs.