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The Management of Haryana Urban Development Authority Vs. Miss Neelam Kumari and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 759 of 1985
Judge
Reported in(1993)104PLR552
ActsHaryana Urban Development Act, 1977; Industrial Disputes Act, 1947 - Sections 2, 10 and 10(1); Limitation Act, 1963 - Schedule - Article 137; Constitution of India - Article 226
AppellantThe Management of Haryana Urban Development Authority
RespondentMiss Neelam Kumari and anr.
Appellant Advocate Harbhagwan Singh, Sr. Adv. and; Arun Walia, Adv.
Respondent Advocate J.P.S. Sandhu, Adv.
DispositionPetition dismissed
Cases ReferredMiss Laxmi Narain Gauri Shankar v. Gopal Krishan Kanoria
Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property......m.s. liberhan, j.1. this judgment will dispose of civil writ petition nos. 759, 4050, 4528, 5239 of 1985, 2740, 2782, 4337 and 4338 of 1986, 4020, 4021, 6351, 8153, 8154, 9338 and 9575 of 1987, 5455, 5490, 5550, 6200, 10028 and 11816 of 1988, nos. 75, 3?65, 8741 and 13253 of 1989, 16245 of 1990, 1683, 3734, 17945 and 17946 of 1991, 183, 1683, 1902, 3892, 5089, 5100, 5915,7207, 10150, 12364 and 12365 of 1992 as common questions of law and facts are involved in all these writ petitions. the principal questions raised by the petitioners in all the writ petitions can be itemised as under :-(i) whether haryana urban development authority is an industry' as defined under the industrial disputes act ?(ii) whether there is any limitation prescribed for raising an industrial dispute ?(iii) whether.....
Judgment:

M.S. Liberhan, J.

1. This judgment will dispose of Civil Writ Petition Nos. 759, 4050, 4528, 5239 of 1985, 2740, 2782, 4337 and 4338 of 1986, 4020, 4021, 6351, 8153, 8154, 9338 and 9575 of 1987, 5455, 5490, 5550, 6200, 10028 and 11816 of 1988, Nos. 75, 3?65, 8741 and 13253 of 1989, 16245 of 1990, 1683, 3734, 17945 and 17946 of 1991, 183, 1683, 1902, 3892, 5089, 5100, 5915,7207, 10150, 12364 and 12365 of 1992 as common questions of law and facts are involved in all these writ petitions. The principal questions raised by the petitioners in all the writ petitions can be itemised as under :-

(i) Whether Haryana Urban Development Authority is an Industry' as defined under the Industrial Disputes Act ?

(ii) Whether there is any limitation prescribed for raising an industrial dispute ?

(iii) Whether the Labour Court has jurisdiction to determine the legality of retrenchment while determining the question of validity of termination of service ?

2. The brief exordium facts common to all the writ petitions are, that the petitioners were appointed as drivers, assistant pump operators, motor mates and clerks etc , either on work charge basis or on daily wages or for 89 days extending from time to time or on probation for specific period of two years Petitioners worked for more than or about three years or at least none worked for less than 240 days in the year prescribing termination of their services. The petitioners raised an industrial dispute. Appropriate Government referred the dispute to the Industrial Tribunal for adjudication. The question of reference for adjudication in all the writ petitions is parimateria viz. whether the termination of the services of the petitioner(s) was justified, just or correct, if not, what relief the petitioners are entitled to

3. Arguments were heard in all the write petitions on the questions raised above and the questions are being disposed of by this common judgment In order to determine 'whether Haryana Urban Development Authority' is an 'Industry' it would be expedient to notice the definition of Industry which runs as under :-

Section 2(i)'Industsy' means any systematic1 activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not -

(i) any capital has been invested for the purpose of carrying on such activity ; or

(ii) such activity is carried on with a motive to make any' gain or profit, and includes -

(a) any activity of the Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948) ;

(b) any activity relating to the promotion of sales or business or both carried on by an establishment but does not includes-

(1) Any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one. Explanation :-

For the purpose of this sub clause, 'agricultural operation' does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantation Labour Act, 1951 ; or

(2) hospitals or dispensaries ; or

(3) educational, scientific, research to training institutions; or

(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, special or philanthropic service ; or

(5) Khadi or village industries ; or

(6) ' any activity of the government relatable to the sovereign functions of the Government including all the1 activities carried on by the departments of the Central Government dealing with' defence research, atomic energy and space ; or

(7) any domestic service ; or

(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such profession is less than ten ; or

(9) any activity being an activity carried on by a co operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten'.

4. The Haryana Urban Development Authority was constituted as a body corporate as well as a local authority under the Haryana Urban Development Act, 1977.

5. The scenario which emerges from reading the object of the constitution or the establishment of the Haryana Urban Development Authority is to promote and secure development of urban area, acquire properties, manage and plan it, dispose it of, carry out the building 'work, engineering work, mining work, and other connected operations. It is further enjoined on the Haryana Urban Development Authority to execute the work for supply of water, provide sewerage, control pollution and render further similar services. Reference may be made to Section 13 of the Haryana Urban Development Authority Act, 1977 which runs as under:-

'Objects and functions of Authority.-The objects of the Authority shall be to promote and secure the development of all or any of the areas comprised in an urban area and for that purpose the Authority shall have the power to acquire by way of purchase, transfer, exchange or gift, held, manage, plan, develop and mortgage or otherwise dispose of land and other property, to carry on by itself or through any agency on its behalf, building, engineering, mining and other operations, to, execute works in connection with supply of water, disposal of sewerage, control of pollution and any other services and amenities and generally to do anything, with the proper approval, or on direction on the State Government, for carrying out the purposes of this Act.'

6. The corporate body has been authorised to recruit its staff and determine their conditions of service as provided by Sections 11 to 40. It has a right to hold, acquire, dispose of property or frame schemes thereunder: It has further been authorised to develop property, make plots, allot plots, carve out zones in planning, construct plots and delegate its authority of construction to other agencies with a fixed profit. It has all been authorised for resumption and ferfeiture for breach of conditions of transfer and further impose penalty and recover the arrears as arrears of land revenue. It has been farther empowered to evict persons from its property The Act empowers the authority to transfer its responsibility for amenities to its colonies or other developed areas to the local authorities discharging municipal functions on the terms and conditions agreed upon between the local authorities and Haryana Urban Development Authority.

7. There is no gain-saying, the object of the Industrial Disputes Act is to give succour to the weaker Section of the Society which is a prerequisite for a welfare State. It provides for means for industrial peace and preempt industrial tension. It further aims at enhancing the industrial production which is essential life-hired of a developing society. It provides a machinery for investigation, and settlement of Industrial disputes shorn of legal technicalities of civil law with a view to avoid proverbial delay caused in granting justice by heavily loaded civil Courts. Its object is to provide social justice to the illiterate or semi literate workers free from technical considerations. Worker has been defined by the Act It envisages, conscriptions negotiation, conciliation and adjudication; as demanded by the society animated by industrial disputes keeping in view the fast changing social norms of the present day society.

8. The thrust of the argument of the learned counsel for the petitioners is to the effect, that the principal activity of the Haryana, Urban' Development Authority is to plan and develop towns .which is perfectly a regal and sovereigo function of .the Government, particularly, when authorised to- impose, levyopenalty, effect recovery as arrears of land revenue/ recover possession and impose damages, proyiding its, employees powers of public, servants. All these activities are regal and sovereign functions of the State. : These are primarily, functions of the State delegated to the Haryana Urban Development Authority. Consequently, Haryana Urban Development Authority does not fall within the definition of Industry'. To support his contention, the petitioners has relied upon Union of India and Ors. v. R.C. Jain A. I. R. 1981 S.'C. 951, State of Punjab v. Kuldip Singh, 1983 (1)S. L.R. 710 D.N. Banerji v. P. R. Mukherjee, A. I. R. 1953 S.C. 58; Ajit Singh and Ors. v. State of Punjab, 1983 (2) S. L. R. 1 Karnani Properties Ltd. v. The State of West Bengal, 1990 (5) S.L.R. 61 Des Raj and Ors. v. State of Punjab, 1988 (2) S.L.R. 789

9. The learned counsel for the respondents refuted the submission made by the learned counsel for the petitioners and vehemently argued that the Haryana Urban Development Authority is an industry' as defined by the Act. The question is not res integra. There are string of authorities, holding that the Corporations discharging' the functions pari-materia with the functions of the Haryana Urban Development Authority are squarely covered by the definition of industry'. The reference was made to the latest decisions of the Supreme Court reported as Karnani Properties Ltd. v. The State of West Bengal 1990 (5), S.L.R. 61 Des Raj etc. v. State of Punjab , A. I. R. 1978 S. C. 548 D. N. Banerji V. P. R. Mukherjee A.I.R. 1953 S.C.58 , and Bangalore Water Supply and Sewerage Board v. A. Rajappd A.I.R. 1978 S.C. 548.

9. It was argued by the learned counsel for the respondent that in order to determine the nature of the Corporation being an Industry or not, one has to address one self with the functional nature of the Corporation. The ground realities cannot be lost sight of Complete meaning has to be given to the definition of Industry provided by the Act, so that the object to the Act is achieved and is not defeated. The socio economic entirety of State, in welfare state, with changing concept of sovereign functions have to be kept in view to ensure purposeful functioning of the Industrial Law.

10. The Hon'ble Supreme Court has provided guidelines and enumerated some of the tests to determine whether an Institution is an Industry or not, after taking into consideration a large number of cases. The tests propounded by the Hon'ble Supreme Court run as under:

'(a) Where (i) systematic activity (ii) organised by co-operation between employer and employee, (the direct) and substantial element is chimercial) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (Not spiritual or religious but inclusive of material things or services geared to the celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise.

(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public joint or other sector.

(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations.

(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking.'

11. The word 'Industry' as defined in Section 2(i) and explained in D. N. Banerji v. P. R. Mukhejee A.IR. 1953 S.C 58, has a wide import.

12. Although Section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.

13. 'Undertaking' must suffer a contextual and acceciational shrinkage as explained in Banerjee's case, and in this judgment; so also, service, calling and the like. This yields the inference that all organised activity possessing the triple elements in I (Supra) although not trade or businsess, may still be 'Industry' provided the nature of the activity viz , the employer- employee basis, bears resemblance to what, is found in trade or business. This takes into the fold of 'industry' undertaking?, callings and services adventure analogous to the carrying on of trade or business. All features, other than the methodology of carrying on the activity viz., in organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy.

14. In continuity the Hon'ble Supreme Court observed that :--

'The application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outor sense of motivation or for resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition Nothing less, nothing more.

(a) The consequences are (i) professions, (ii) clubs (iii) educational institutions, co-operatives (iv) research institutes (v) charitable projects and (vi) other kindred adventures if they fulfil the triple tests listed in 1 (supra), cannot be exempted from the scope of Section 2(1),

(b) A restricted category of professions, clubs, co-operatives and even gurkulas and little research labs may qualify for exemption if in simple ventures substantially and, going by the dominant nature criterion 'substantively no employees are entertained but in minima! matters marginal employees are hired without destroying the non-employees character of the unit.

(c) If, in a pious or altruistic mission, many employ themselves, free or for small honoraria or like return mainly drawn by sharing in the purpose of cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours m a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then the institution is not an industry even if stray servants, manual or technical, are hired Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project The dominant nature test :

(a) Where a complex of activities some of which qualify for exemption. others not, involves employees on the total undertaking' some of whom are not 'workmen' as in the University of Delhi case (A. I. R 1963 S. C. 1873) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur (A. I. R. 1960 S. C.) 675) will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by deinition may not benefit by the status.

(b) Notwithstanding the previous clauses, sovereign functions, strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies

(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(1)

(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.

15. The judgment has specifically overruled, Sofdarjung Hospital New Delhi v. Kuidip Singh Sethi, A.I.R. 1970 S.C. 1407 National Union of Commercial Employees v. M.R. Meher, Industrial Tribunal, Bombay A.I.R. 1962 S.C. 1080, Madras Gymkhana Club Employees' Union v. Management, A.I.R. 1968 S. C. 554 The University of Delhi and mother v. Ram Nath., A. I. R. 1963 S. C. 1873. The Dhanrajgirji Hospital v. The Workmen, A.I.R. 1975 S.C. 2032 and other rulings whose ratio runs counter to the principles enunciated above and the law laid down in Hospital Mazdoor Sabha's case A. I. R. 1960 S. C. 610 has been rehabilitated.

16. Keeping in view the basic principles that a term is to be understood by persons for whom the law is meant and the industry as commonly understood, one has to give a meaning to a term as defined in the statutory provisions to its logical end. By giving meaning by strokes, attempt cannot be made to take the Institution out of the meaning of industry. The meaning has to be given keeping common sense guide in view while constructing. The ground realities have to be kept in view in judicial interpretation. The interpretted law cannot be permitted to go wild.

17. It has been precedently accepted that the Court should not take any Institution out of the definition of an 'Industry' solely because the employer is Government, local body statutory board, society or the like. Industry does not lose its character of an industry' because of its being charitable Institution or it is run on no profit-no loss basis. The definition has extended the meaning of Industry i.e. Industrial, occupation or avocation which is much more than is ordinarily understood by trade or business. It has been found that public utility service as carried on by the Corporation like a Municipality which is creature of statute and which functions under the limitations, imposed by the Statute but renders public utility service still be an Industry if the job carried on by the Corporation can be done by a private person. The emphasis has been laid down by judicial precedent as approved by Bangalore Water Supply and Sewerage Board v. A. Rajdppa A.I.R. 1978 S.C. 548, on performance of functions by public authority or Corporate authority. It would cover all the branches of the work than can be said to be carried oh as trade or business. The only exemption from 'Industry' which has been provided is to be constitutional inalianable crown's function or sovereign acts. Sovereign acts alone have been exempted from the definition of 'Industry'. While applying the said test it was observed that the maintenance of the street in the municipality is not the sovereign function or Crown's function. The institution doing the job of maintenance of street would fall within the definition of an Industry. The Hon'ble Supreme Court took note of the factor that the person employed by the State or in public sector who do not act as agents of the public authority, though they may have been conferred the status of civil servant employed in various capacities in Government institutions and other persons employed by the Government in public undertaken or independent public corporation stll fall within the definition of worker employed by an Industry. Mere conferring of status of civil servant on the employees of the Corporation by itself would not denude the Corporation of the statuts of an Industry. The emphasis has been laid down more on the pith and substance of the service rendered by the Corporation. Its functions end product Industry where those services can be rendered by private persons or job could be carried on by any person other than sovereign or delegatory Office, where it has got trapping of trade, business or calling and where activity is systematic activity carried on by cooperation between the employer and employees, where the said activity results In for the production or supply or distribution of goods for service which satisfy the humari wants and' wishes, irrespective of the fact that any capital was invested or not or whether there is any profit motive or not. The legislation has further enacted Section 2(c) of Industrial Disputes Act as amended to remove any prejudice.

18. In State of Punjab, Irrigation & Power Department v. Presiding Officer, Labour Court, Patiala1 1980 (1)S. L. R. 595, the Irrigation and Power Department was held to be an Industry by this Court. In Karanani Properties Ltd v. State of West Bengal 1990 (5) SL.R.61 The Company incorporated under the Companies Act, 1913 renting out flats to tenants by providing free facility of electricity, washing and cleaning of floors and lavatories ; lift services, electric repairs and replacings and sanitary services etc was held to be and Industry. The principles formulated for determining whether it is an Industry or not were to the effect :

'(a) Where (i) systematic activity (ii) Organised by co-operation between employer and employee (the direct) and substantial element is chimerical (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e. g making on a large scale prasad or food) prima facie there is an industry in that enterprise.

(b) Absnnce of profit motive or gainful objective is irrelevant, be the venture in the public joint or other sector.

(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer- employee relations.

(d) If the organisation is a trade or business it does not cease to be one because, of. philanthropy animating the undertaking.'

19. The Hon'ble Supreme Court took note of the memorandum of association where the object of the company incorporated was to acquire by purchase, transfer, assignment or otherwise lands, buildings and landed properties of all discription and in particular to acquire from the Karnani Industrial Bank Ltd., the immoveable properties now belonging to the said Bank and to improve, manage and develop the properties and to let out the same on lease or otherwise dispose of the same. The principal business of the company was to deal with the real property. It was a real estate company. The tenants paid not only for mere occupation of the property but also for enjoyment of the various services which were rendered by the appellant to the tenants, to which service the tenants were entitled as a matter of right for the occupation of the premises. For rendering those services men were employed and hired. The services conferred material benefit, the beneficiaries and the benefits constitute material services. Employees were engaged to their callings i.e. occupation, evocation, profession and trade to their work in renderrig services It was found that for the tests laid down by the Hon'ble

Supreme Court the object of the Industry for which it was floated fully satisfied the tests formulated by the Act to fall within the four corners of the definition of Industry,

20. The facts and activities of the Haryana Urban Development Authority are pari materia with the facts and activities of the company which was under consideration in Karnani Properties Ltd v. State of West Bengal and Ors., 1990 (5) S.L.R 61. We cannot add anything more and the tests as stated above squarely cove- the facts of the present case. The above cited judgment has further taken note of judgments reported as Bangalore Water Supply and Sewerage Board v. A Rajappa A.I.R 1970 S.C 140 and Ors. 8 and State of Bombay v. The Hospital Mazdoor Sabha, (1960) 2 S, C. R. 866

21. The Hon'ble Supreme Court while determining whether P.W.D. Drainage Division of Irrigation Department of the State is Industry made observations as made in Karnani Properties Ltd.'s case (supra).

22. In the present day egalitarian society and the fast changing social norms particularly keeping in view the executive functions of the State delegated to various corporations and the definition of sovereign as provided by Hibbert in his book on Jurisprudence, at page 58, 'the term 'sovereign' means a political superier who is not subject to any other political and further the observations made in the case Peninsular and Oriental Stream Navigation Company v. Secretary of State for India in Council, 5 Bombay HCR 1 where in Chief Justice Gray.

In the case of Bank of Bengal v. East India Company observed 'the effect of the Company having been invested with the powers usually called sovereign powers did not constitute them sovereign'*, we are of the considered, view that the petitioner cannot be treated as sovereign. We find our above view supported from another consideration that the functions of the Government connected with the business of industrial or commercial activities of the Government cannot by any stretch of arguments be termed as sovereign functions of the State. The Observations made above further finds support from the judgment reported in the Full Bench of this Court in Baxi Amrik Singh v. The Union of India , (1973) 75 P.L.R. 1 (F.B.) though those observations were made in the context of liability of sovereign undertort.

23. We are of the considered view that the functions of the Haryana Urban Development Authority can by no stretch of imagination be held to regal or sovereign. The functions of the Haryana Urban Development Authority can easily be termed the functions of any coloniser and to describe the same as sovereign functions would render the definition of Industry as nugatory. We find no force in the contention of learned counsel for the petitioners that the mere fact that the statute has empowered the corporate body to impose penalties and recover its dues as arrears of land revenue would convert its industrial functions to sovereign functions Sovereign can also enter to trade or business and the constitution does not debar in the present days economic activity of the State for diversification of its functions particularly implementing the object of a welfare state, further taking benefit of expertise in the field in the era of experts. Keeping in view the judicial pronouncements of Hon'ble Supreme Court, we are unable to accepts the arguments of the learned counsel for the petitioners that the planned development of urban area would be a sovereign functions, particularly when the object of the Corporation as reproduced above is the sale of plots or flats after development to the people at large and carry out building activities, engineering activities, mining activities and other operations and further maintain the amenities to the plot holders like supply of water, maintenance of sewerage control of pollution and render other service as usually provided by local bodies It, on the face of it, shows that by systematic activity as produced by an organized Corporation (HUDA) employer and its employees like drivers, pump operators masons etc. for production and distribution of goods and the services calculated to satisfy the human wants cannot be termed to be spiritual or religious. The nature of the activity decisively keeping in view the functional activity makes discernible that the Haryana Urban Development Authority is an organisation of the nature of trade or business and the end product is co-operation between the employer and employees.

24. The judgments cited by the counsel for the petitioners are not part-materia to the facts and circumstances of the case in hand. The observations which have been read out by the learned counsel for the petitioners are totally out of context for which they were made. By no stretch of imagination we can relegate the functions of Haryana Urban Development Authority as the sovereign functions.

25. The grievance of the petitioners is to the effect that industrial dispute cannot be referred to or decided by the Tribunal, if the same was raised after a lapse of three years from the date of its accrual which is the cause of action, it was argued that the application for reference would be governed by Article 137 of the Indian Limitation Act. Supreme Court in Town Municipal Council, Athani v. Presiding Officer Labour Court Hubli AIR 1969 SC 1335 had settled the question posed. It was observed that the Industrial Tribunal or Labour Court to whom the application is referred under the Act are not the Courts. Industrial Tribunal or Labour Court are not in any way governed by the Court of Civil Procedure. As a natural corollary applicability of Article 137 of the Indian Limitation Act cannot be accepted. Similarly, it was so observed by a catena of authorities i. e. The Bombay Gas Co. Ltd. v. Gapal Bhiva, A. I. R. 1964 S. C. 752 Chief Mining Engineer, M/s East India Coal Co. Ltd., Bararee Colliery Dhanbads.v Rameshwar A. I. R. 1968 S. C. 218 Jai Bhagwan v. Management of Ambala Central Co-operative Bank, 1983 (3) S. L. R. 544 Jacob Thomas v. Kerala Public Service Commission,1990 (1) S. L. R 360, Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd, Management of the State Bank of Hyderabad v. Vasudev Anant Bhide A. I. R. 1970 S. C. 196 and The Kerala State Electricity Board, Trivandrum v. T. P. Kanhaliumann., A. I. R. 1977 S. C. 282

26. From the conspectus of the judgment cited above, it is discernible, since the Industrial Disputes Act, does not provide limitation for making a reference, or raising an industrial dispute or for deciding the industrial dispute, hence the provisions of Indian Limitation Act cannot be imbibed into the provisions of Industrial Disputes Act, which by itself is a complete Code. By importing the provisions of Indian Limitation Act into the Industrial Disputes Act, the very object of the Act providing, speedy, simple straight remedy devoid of any technicality and avoidance of proverbial delays of Civil Courts would stand frustrated. We may hasten to add that though delay or laches is not the ground by itself for striking down the reference which was concedingly an administrative action, Inspite of this, the Tribunal will be at liberty to mould the final relief keeping equity and good conscience, in view in the peculiar facts and circumstances of each case. For instance, whether a new hand has joined service or the worker has been in service for long years, financial position of the Institution, loss of faith in the worker, ceaser of relationship of employer and employee having come into existence long time back or other similar circumstances including conduct of the employee not raising dispute and sleeping over his rights for in-determinate period may be the facts to be kept in view while moulding relief. There is no gain-saying that the factum of worker being illiterate and belonging to weaker Section of society for whose benefit the Act was enacted is, of course, to be kept in view.

27. It was vehemently argued by the learned counsel for the petitioners that the Labour Court have no jurisdiction to determine the validity of the retrenchment as the dispute relating to retrenchment is covered by schedule third of the Industrial Disputes Act, which relates to the matters within the jurisdiction or1 Industrial Tribunal.

28. It is expedient to note that Section 10 empowers the appropriate Government to refer the industrial dispute either to the Labour Court of Labour Tribunal.

Reference may be made to Section 10 which runs as under :-

'Reference of disputes to Boards, Courts or Tribunals.- (1) (where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time), by order in writing : -

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing, to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication; Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than ore hundred workmen, the appropriate Government may, if it so think fit, make the reference to a Labour Court under clause (c) :

Provided further that where the dispute relates to a public utility service and a Notice under Section 22 has been given the appropriate Government shall unless it considers that the notice has been' frivolously or vexatiously given or that it would be inexpedient so to do make a reference under this sub-section not withstanding 'that any other proceedings under this Act in respect of the dispute may have commenced;

Provided also that where the dispute in relation to which the, Central Government is the appropriate Government it shall be competent for that Government to refere the dispute to a Labour Court or an Industrial Tribunal, as the case may be constituted by the State Government'.

29. The second Schedule which with the matters viz. discharge, or dismissal of women including re- instatement, of, pr. grant, of relief to, 'workman wrongfully dismissed which, fall, within the, jurisdiction of the Labour Court.

30. The third schedule which deals with the matter 'retrenchment of workmen and closure of establishment falls within the jurisdiction of Industrial Tribunals

31. There is no dispute that the jurisdiction of the labour Court has to be determined keeping in .view the subject, matter, of the dispute or question referred to the Court and, the jurisdiction cannot be determined' from the defence raised. There is no gain saying that the dispute referred to the Labour Court is with respect to the validity of the termination' of services of the workers in the facts and circumstance of each case and the relief to which the worker is entitled to, if termination of service is found to be invalid.

32. It was observed in Miss Laxmi Narain Gauri Shankar v. Gopal Krishan Kanoria , A. I R. 1987 S. C. 8 that the termination of services for any reason whatsoever now covers no other ground of termination of services except those which are expressly included i. e. provided by Section 25F, or provided by other provisions of the Act such as 25FF and 25FFF.

33. Reading Section 10 and the schedules, it categorically emerges that the dispute with respect to termination of service falls within the jurisdiction of the Labour Court and the Labour Court was well within the jurisdiction to decide the issue referred, though in determining the validity of termination, collateral, facts relating to the claim of retrenchment were determined

34. The question of jurisdiction having not been raised before the Labour Court cannot be allowed 16 be raised at this stage as it involves a disputed question of fact i. e. whether the respondent was employing more than 100 workers or not, in the department relating to which the dispute is referred. Otherwise also, the petitioners have shown no prejudice suffered by them while the Labour Court determined the validity of retrenchment claimed by the respondent. In view of the clear law laid down by Hori'ble the Supreme Court to the effect that unless retrenchment is proved to be valid, the ceasor of relationship of master and servant shall be and can he termed as termination of services Determining legality and validity of termination of services is within the purview of Labour Court. Thus, we find no force in the contention of learned counsel for the petitioners that the Labour Court had no jurisdiction to determine the question of validity of retrenchment.

35. Lastly, we may venture to state that we cannot refrain ourselves from observing that as observed above there is no period of limitation for making reference for raising industrial dispute, as basic object or consideration of the authority is up-keeping of industrial peace in the interest of society and the Act being beneficial to the workers We may hasten to add that inordinate delay in raising dispute would result in producing unjust result and it may prove counter productive to industrial peace The inactivity of a worker in raising dispute may disentitle him from the relief and no premium can be permitted for the in-activity of the claimant or the applicant One cannot be permitted to take benefits of one's own wrong. But non- reference of the dispute to the Industrial Authorities for in-determinate period by the State cannot deprive the applicant or the worker of his due workers cannot be allowed to suffer because of the act of the Authority over whom they have not control. The things cannot be kept in abeyance for indeterminate period. The authorities are bound to keep in mind the possibility of injustice to another worker, who might have joined in his place and worked for indeterminate time and who would be deprived of his job for no fault of his. It would be a .necessary corollary of the reinstatement of a worker whose services were illegally terminated. It would also result in great injustice to the Industry ifself who had to suffer monetarily and otherwise too because of unsettled things continuing for in-determinate time for no fault of the management of the Industry. There cannot be any pregnatic or water tight formula One has to keep in view the peculiar facts and circumstances in moulding the relief, i.e., whether the worker has raised the dispute after lapse of unreasonable long period. The worker cannot be permitted to take advantage of his own lapse or wrong for sleeping over his rights for in-determinate period. Otherwise also, the avowed object of the industrial peace can only be fulfilled by expeditious disposal of the disputes.

36. In Civil Writ Petitions No. 17495 and 17946 of 1991, 5089, 5915, 8954, 3892, 10150, 16863 of 1992, learned counsel for the Haryana Urban Development Authority argued that it was a case of abandonment by a daily wager though the finding returned in the award is that there is no evidence in support of the plea of abandonment. Nothing worth the name has been pointed out to take contrary view. It was found as a fact that the workman had worked for more than 240 days in the preceding calender year though he was appointed from time to time. There is no evidence nor a finding that either the work ceased or the post ceased t exist or the workman was employed for a specific task It. would be reasonable to infer that it would amount to an unfair labour practice if a person having worked for 240 days is treated as not regular which is contrary to the concept of industrial law of granting the deemed feature that the workman who completed 240 days in a calender year will be treated as regular. Otherwise, it would amount to permitting the petitioner to do indirectly that he has been debarred by law from doing directly. If it is permitted the very object of the industrial law would stand frustrated by small contrivance of a shrewed, intelligent employer dealing with an uneducated or lowly educated workman for whose benefit the Act has been enacted.

37. In view of the observations made above we find no force in the submissions made by the learned counsel for the petitioners.

38. At this stage, we may hasten to add that in majority of the cases, there was no plea that the workmen were engaged for a specific task and it ceased to exist. Rather letters of appointment have not been produced and the juniors are still working. In some of the cases even after the appointment of 89 days, no fresh appointment letter has been issued to the workers and they were allowed to continue and complete 240 days. No other specific point except the points raised and covered by the earlier part of the judgment has been raised.

39. In view of the observations made above, we find no force in the submissions made by the learned counsel for the petitioners. Consequently, the writ petitions are dismissed with no order as to costs.


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