A workman must demonstrate that an industrial dispute remains alive despite delays; failure to do so renders the dispute stale and unenforceable.

JUDGMENT :

1. Heard learned AGP Mr Chintan Dave for the petitioner and learned advocate Mr B.J. Trivedi for the respondent no.1.

2. By this petition under Article 227 of the Constitution of India the petitioners have prayed for the following reliefs:

“A. YOUR LORDSHIP may be pleased to admit and allow this writ petition;

B. YOUR LORDSHIP may be pleased to issue a writ, order or direction in the nature of certiorari and/or any other writ in the nature of certiorari to quash and set aside the judgment and award dated 08.05.2019 passed in Reference (LCB) No.57 of 2011 passed by the learned Judge, Labour Court, Bhavnagar;

C. Pending admission, hearing and final disposal of the petition, YOUR LORDSHIP may be pleased to stay, implementation, operation and execution of the judgment and award dated 08.05.2019 passed in Reference (LCB) No.57 of 2011 passed by the learned Bhavnagar; Judge, Labour Court,

D. YOUR LORDSHIP may be pleased to grant such other and further relief as may be deemed fit and proper in the interest of justice.”

3. The brief facts of the case are as under:

3.1. the respondent no.1-workman was employed with the petitioner no.2 Deputy Executive Engineer, Shetrunji Left Canal Sub-Division, Talaaja, District Bhavnagar in the year 1990 as Ad-hoc labourer and his services were terminated on 01.01.2000 without notice, notice pay or retrenchment compensation as per the provision of Section 25F of the Industrial Disputes Act, 1947 (for short 'the Act'). The respondent no.1-workman was getting Rs.2,000/- as monthly salary when his service was terminated.

3.2. The respondent no.1 raised the Industrial Dispute under Section 10(1) of the Act before Assistant Labour Commissioner in the year 2011 after more than eleven years.

3.3. The Assistant Labour Commissioner, Bhavnagar by order dated 14.06.2011 made a reference (LCB) no.57 of 2011 to the Labour Court Bhavnagar to decide the reference as to whether the respondent no.2 should be reinstated at his original place with continuity of service with backwages with effect from 01.01.2000 or not.

3.4. The Labour Court Bhavnagar issued notice to the petitioner after respondent filed statement of claim on 28.09 2011.

3.5. The petitioner filed reply at Exhibit-11 on 19.08.2014 contending that the reference is not maintainable as the same is filed after delay of 11 years. It was also submitted that the respondent no.1-workman did not discharge the continuous service but was employed during the period from 1990 to 1999 as and when need arose. The petitioner submitted that the respondent no.1-workman has not worked for more than 240 days in any of the year from 1990 1999 as under:

3.6. The Labour Court after considering the affidavit of the respondent no.1- workman at Exhibit 13 and the cross- examination of the respondent no.1-workman as well as the documentary evidence produced by the petitioner in form of notice of demand dated 29.03.2011 at Exhibit-30 to 37 as well as the affidavit of Shri Madhukar Vinaychandra Gandhi at Exhibit-29 presence register and summary of the presence register etc at mark 21/1 to 21/33 framed following issues:

(i) Whether the reference is barred by limitation ?

(ii) whether the respondent comes within the definition of industry ?

(iii) Whether respondent applicant is covered within definition of workman ?

(iv) Whether the workman was discharged from service illegally ?

(v) Whether the workman was entitled to be reinstated ?

(vi) Whether the workman is entitled to the backwages ?

(vii) what order ?

3.7. The Labour Court after considering oral and documentary evidence came to the conclusion that the services of the respondent no.1-workman was illegally terminated and partly allowed reference by passing an order of reinstatement of the respondent no.1-wor