2006 Supreme(SC) 623

2006(5) Supreme 613
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. AR. Lakshmanan and Lokeshwar Singh Panta, JJ.
Manager (Now Regional Director) R.B.I. — Appellant
versus
Gopinath Sharma & Anr. — Respondents
Civil Appeal No. 7902 of 2004
Decided on 17-7-2006
Counsel for the Parties :
For the Appellant : Mahendra Anand, Sr. Advocate, H.S. Parihar, Kuldeep Parihar and D.K. Sharma Advocates.
For the Respondent : Pramod Swarup, Ms. Pareena Swarup, Ameet Singh and Praveen Swarup, Advocates.

IMPORTANT POINTS
1. Industrial dispute which is stale could not be a subject matter of reference under Industrial Disputes Act.
2. Where a workman had worked for 58 days on casual basis, he was not entitled for any relief in his claim under Industrial Dispute Act.

Headnote:(i) LABOUR LAW — Industrial Disputes Act, 1947 — Section 10 — Dispute reference — Labour Court dismissed claim on ground of delay and laches holding that reference was made after 13 years — High Court set aside the award holding that Tribunal could not go into validity of reference and employer could challenge reference order on ground of delay and appellant bank had not challenged the reference — Appeal — Dispute which was stale could not be a subject matter of reference.

       Held : Employers in relation to the Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd. Vs. Their Workman represented by Rashtriya Colliery Mazdoor Sangh, JT 2006 (1) SC 411 : This case, in turn, refers to the judgments in Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors., JT 2000(1) SC 388 and S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka, JT 2003(3) SC 436. This Court held that even though there is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred to as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen. This Court has held that a delay of four years in raising the dispute after even re-employment of most of the old workmen was held to be fatal. In Nedungadi Bank Ltds case (supra) this Court held a delay of seven years to be fatal and disentitled the workmen to any relief. In our opinion, a dispute which is stale could not be a subject matter of reference. (Paras 20 & 21)

       (ii) Industrial Disputes Act, 1947 — Section 25F — Dispute reference to Labour Court whether action of management of RBI in striking of name of respondent from list of approved peon-cum-Farash was justified — Respondent applied for his day to-day appointment which request was acceded to and he was allowed to work between 1-7-1975 to 30-6-1976 — His name was not included in fresh list from 1-7-1976 to 30-6-1977 and his representation was turned down — Labour Court found that workman had not completed 240 days in Bank was not entitled to benefit of Section 25F of the Act — High Court allowed writ and directed reinstatement of respondent with back wages at 10 from 1976 to 1989 and 50 , from 1989 till date of judgment — Appeal — Question whether High Court in a petition under Article 226 of the Constitution assailing the correctness of judgment of Labour Court was justified in examining policy of R.B.I. on touchstone of Article 14 of the Constitution of India? No — High Court took into consideration an entirely a new aspect which was neither pleaded by petitioner in writ petition nor was claimed in claim statement — Whether High Court could interfere with findings of Labour Court on factual issues in absence of challenge on ground of perversity and could award relief on ground not raised before Labour Court? No — Whether a person could be ordered reinstatement even when he was engaged on day to- day basis and it was not established that he was working on regular post to hold any post particularly when respondent had worked only for 58 days? No.

       Held : In our opinion, the High Court has committed a patent error in allowing the writ petition filed by the respondent herein who is a daily wage worker when it was not established that he was working on regular basis. The High Court, in our opinion, is not justified in directing that respondent No.1 must be reinstated and appointed to similar post. The High Court has also clearly erred in examining the legality of the policy and giving relief solely on the ground that it found the policy and actions of the appellant contrary to Arts. 14 & 16 of the constitution. It is pertinent to notice that the High court has taken into consideration an entirely new aspect which was neither pleaded by the petitioner in the writ petition before the High Court nor was claimed in the claim statement filed before the Tribunal without giving an opportunity to the parties to effectively reply to the same. Likewise, the High Court also failed to consider that the system of engagement of Ticca Mazdoors has since been abolished in November, 1993, while this fact was brought on record of High Court in the counter affidavit filed on behalf of the Bank. It is a matter of documentary proof that the respondent has worked only for 58 days as could be seen from the statement filed by the Bank.(Paras 17 and 18)

       In our view, respondent No.1 was not appointed to any regular post but was only engaged on the basis of the need of the work on day to-day basis and he has no right to the post and that his dis-engagement cannot be treated as arbitrary. The High Court, in our view, has totally misdirected itself in holding that non-consideration of the name of respondent No.1 on acquiring higher qualification is not misconduct, hence, dismissal of the workman on this ground is wrongful within the meaning of Item 3, Schedule II to the Industrial Disputes Act, 1947 without giving any reason as to how non-inclusion of name for day to-day appointment amounts to wrongful dismissal. The High Court completely erred in relying on Section 25 G of the I.D. Act while not holding that the workman has been retrenched within the meaning of Section 25F and thus misdirected itself about the applicability of provisions of Section 25G of the I.D. Act even if it does not involve retrenchment. The High Court also failed to consider that the inclusion of the name in the waiting list for appointment as Ticca Mazdoor on day to-day basis does not confer any right for regular appointment or to hold any post. As already noticed, no relief can now be given to respondent No.1 especially when the system of keeping waiting list for Ticca Mazdoor has been dispensed with since 23.7.1993 and at present the Bank does not maintain any list. The High Court, therefore, wrongly proceeded on the basis as if the daily wage appointment is for a regular post on which a person can be reinstated. The High Court has also committed an error in giving the relief of reinstatement with back wages without considering whether the concerned workman was gainfully employed from 1976 till date of judgment, there being no evidence on record. Likewise, the High Court ought to have seen that respondent No.1 was not entitled to any back wages on the basis of the well settled principle "No work No Pay". In our opinion, the High Court has completely erred in ordering an appointment to a similar post on which a person just before the name of respondent No.1 is at present working without considering the fact that such person must be senior to the workman concerned and was already promoted to the next cadre in Class III.(Para 22)

       For the aforesaid reasons, we are of the opinion that respondent No.1 has worked for 58 days on casual basis, therefore, he is not entitled for any relief in his belated claim. The High Court, on erroneous view of the facts and circumstances of the case, allowed the writ petition filed by the respondent herein without taking into account the categoric finding of fact that respondent No.1 had not completed 240 days of service in the Bank and held that this will not make much difference. In our opinion, such a casual approach is not warranted in the facts and circumstances of the case. We, therefore, have no hesitation in setting aside the order dated 4.9.2003 passed by the High Court in C.M.W.P. No. 35290 of 1996 and affirm the order passed by the Tribunal.(Para 32)