Yatindra Singh, J.@mdashThere is no limitation for raising an Industrial dispute. Delay may not be a ground for not deciding an industrial dispute. But should it still be adjudicated upon even if delay has prejudiced one side? What should be considered while deciding, if a domestic enquiry was fair or not? These questions arise in this writ petition. Here are the facts.
FACTS
2. The petitioner was employed as a conductor with UP State Road Transport Corporation (the Corporation for short) in the year 1968 and confirmed in 1970. He was chargesheeted on 22.11.1975; the charge was that on different dates he was carrying passengers without tickets. He was removed on 24.3.1976 after an enquiry. Accordingly to the petitioner he filed an appeal against the order dated 24.3.76, which was dismissed on 3.9.1976. He sat quietly for another five years. Then, according to him, he filed an appeal/representation on 16.12.81 against the order dated 3.9.76. Sri Sameer Sharma, counsel for the Corporation says that there is no provision for such an appeal. Sri P.N. Tripathi, counsel for the contesting respondent is not able to point out any. The petitioner says, when his aforesaid appeal/representation was not decided, he raised an industrial dispute in the year 1986. This was registered as C.P. case No. 19 of 1986. There was no conciliation between the parties and the State Government referred the case to the labour court by a reference dated 9.8.1988.
3. The Corporation filed a preliminary objection on 20.12.1988 stating that the incident being of 1976, it should be sponsored by a Union, other wise it cannot be an industrial dispute. It filed its written statement on 16.3.1989 raising amongst the other objections that the Corporation, after 13 years, has no records of the case and in case dispute was raised earlier then ail papers could be filed, the corporation has been prejudiced.
4. The petitioner filed fourteen documents before the labour court but the enquiry report or the termination dated 24.3.76 or the order in the appeal dated 3.9.76 were not filed. Petitioner examined himself. Neither any documents were filed on behalf of the Corporation, nor it led any oral evidence. According to them, they had no documents, no information.
5. The Labour court framed issues and issue No. 1, whether the domestic inquiry was fair, was taken up as the preliminary issue. The Labour court by the order dated 22.3.1990 held that the domestic inquiry was neither fair nor in accordance with law. Subsequently the labour court by its award dated 29.10.91 held that due to delay, prejudice has been caused to the corporation and no relief could be granted to the petitioner. The writ petition is against this award of the labour court.
POINTS FOR DETERMINATION
6. I have heard Sri P.N. Tripathi, counsel for the petitioner and Sri Sameer Sharma, counsel for the Corporation. Following points arise for determination in the case.
(i) The Corporation had stated that it had no documents and in case the dispute was raised earlier, documents could have been produced. Should the labour court have framed the issue ''Whether due to delay, prejudice has been caused to the corporation and the court may decline to decide the dispute?'' and tried it as a preliminary issue, rather than ''Whether the domestic inquiry was fair and proper?''
(ii) On whom does the burden lie to prove that the domestic inquiry: was unfair or fair; and should be or shouldn''t relied upon? What should be considered while deciding this question?
(iii) Can a labour court refuse to decide an industrial dispute on the ground of delay? Is there any limitation for raising an industrial dispute?
(iv) Was the labour court justified in the present case in declining to decide the dispute on the ground of prejudice to the Corporation? Are the Supreme Court cases cited by the counsel of the petitioner applicable to the facts of this case?
1 1st POINT: WHAT SHOULD HAVE BEEN THE PRELIMINARY ISSUE
7. The Petitioner was removed on 24.3.76. He raised an industrial dispute in 1986, i.e. ten years after he was removed. The matter came to be decided before the labour court in 1989. Three years had passed since then; in all, 13 years from the date of dispute. The Corporation took up a specific plea in paragraphs 6 and 7 of the written statement filed on 3.6.89 that: it did not have any documents; in case this dispute was raised earlier then all documents could have been filed before the labour court; and the petitioner''s case would have been dismissed. In such a situation the question, ''Whether any prejudice has been caused to the corporation due to delay in raising the dispute and the labour court may decline to decide the dispute? ought to have been decided as a preliminary issue. The issue No. 1 ''whether the domestic inquiry was fair or not? Ought not to have been decided as a preliminary issue. If in fact the corporation was prejudiced due to delay, it was also prejudiced so far as the first issue No. 1 was concerned. The question relating to the fairness of the domestic inquiry should have been decided after deciding the question of prejudice. The procedure adopted by the labour court, in deciding the issue about fairness of domestic inquiry before deciding the question of prejudice, was incorrect.
2nd POINT: DOMESTIC INQUIRYFAIRNESSDOCUMENTS
Burden of Proof
8. The Proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act doesn''t apply to the proceedings but the principle underlying the said Act is applicable to the proceedings before the industrial Court. In a Judicial proceeding if no evidence is produced the party challenging the validity of the order must fail. It is well settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the partyinvoking jurisdiction of the Court must fall. Whenever a workman raises a dispute challenging the validity of the termination of service it is imperative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case. If the workman fails to appear or to file written statement or produce evidence, the dispute referred by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief. This has been so stated in a Division Bench of this Court. The portion in italics is from a division bench decision of this court reported in V.K. Raj Industries v. Labour Court (Alld. H.C.): 1881 (43) FLR 194. There are two single Judge decisions taking the view which are reported in Airtech Private Ltd. v. State of UP: 1984 (49) FLR 38 and Neritech India Ltd. v. State of UP 1996 (74) FLR 2004. The Observation; of a single judge of this court in UPSRTC, Kanpur v. S. Hussain: 1995(70) FLR 658 to the effect that the......employer is.....liable to prove before the labour court that the domestic inquiry was properly held, is not correct in view of the division bench decision of this court in V.K Raj Industries'' case. I agree. It''s binding upon me.
Documents to be Considered
9. The relevant documents to be considered, �while deciding if the domestic inquiry was fair or not, are: the inquiry report, the order of termination, appellate order if any, and grounds of appeal. These documents have a bearing if the domestic inquiry was fair, or any injustice was caused to the workman or not. The documents will show: if witnesses were examined, or the employee was permitted to crossexamine, or permitted to lead evidence, or if any prejudice has been caused to the workman or not. The cases of not affording proper opportunity in contradistinction to no opportunity have to be judged on the touchstone of prejudice. This is so held by the Supreme Court. State Bank of Patiala v. S.K. Sharma: 1996(3) JT 722 (Paragraph 29, 34)=1996(3) SCC 364/ AIR 1996 SC 1669). The labour court normally should insist on these documents being filed in order to ascertain if a domestic inquiry was fair and proper or not. The cases may not be decided without these documents.
Who Should File These Documents?
10. If a workman challenges the domestic inquiry on the ground that it is unfair then the burden is upon him to prove itthe Division Bench says so. The documents should be filed by him. It is another question if he has not been given these documents or has lost them. Then he cannot file them. The employer may also file these documents. The labour court should, in order to arrive at a just decision, insist that these documents be filed.
Was the Burden Discharged?
11. The Corporation had already stated that they don''t have these documents. The petitioner should have filed them. It was neither the case of the petitioner before the Labour Court, nor in the appeal filed against the order dated 23.7.1976 that these documents were not supplied to him or he has lost them. The petitioner filed 14 documents and examined himself. These documents did not include the inquiry report or the order of his removal dated 24.3.1976 or the appellate order dated 3.9.1976; though he had filed the memorandum of appeal/representation alleged to have been filed against the order dated 3.9.1976. The Corporation neither filed any documents nor examined anyone. According to them they had no document and no one could depose anything about the incident.
12. The petitioner has taken a ground in the memorandum of appeal against the order dated 3.9.1976 that he was not permitted to crossexamine the witnesses produced and examined by the corporation. But the award shows that the petitioner had stated before the Labour Court that neither any charge sheet was given nor any domestic inquiry was conducted. No such ground was taken in the appeal filed by him. Could his statement be believed? The grounds in the appeal suggest that inquiry was held. The statement is contrary to the case taken by the petitioner in the appeal. The evidence on record does not discharge the burden of the petitioner; the domestic inquiry cannot be held to be unfair. The labour court in the present case has adopted improper procedure and reached a conclusion, which no reasonable person could have reached. The order dated 22.3.1990 holding that domestic inquiry was unfair is illegal. This order was deciding an issue. The Corporation has not challenged this order at that time but as the award is in its favour, it can be challenged now.
3rd POINT: LIMITATION FOR RAISING AN INDUSTRIAL DISPUTE
13. Sri Sameer Sharma, teamed counsel for the Corporation has cited some decisions. UPSEB Kanpur v. Presiding Officer: 1998(1) UPLBEC 152 (Allahabad High Court); State of Maharashtra v. T. Raknajee Aher: 1998 (78) FLR 953 (Bombay High Court); State of Punjab v. Kalidas 1997 (76) FLR 955 (D.B) Punjab and Haryana High Court, holding that: article 137 of the Limitation Act is applicable to these proceedings and the dispute raised after the expiry of the period prescribed therein should not be entertained; or even if article 137 of the Limitation Act is not applicable, the Labour Court should decline to answer the dispute on the ground of laches.
14. Sri P.N. Tripathi, learned counsel for the petitioner, has cited two Supreme Court decisions reported in Mahavir Singh v. UPSEB, 1999 (82) FLR 169 (the Mahavir Singh case), Ajaib Singh v. Sirhind Cooperative Marketingcumprocessing. Service Society Ltd., 1999 (82) FLR 137 (the Ajaib Singh case) and a single Judge decision of this court. Ram Lakhan Singh v. Presiding Officer 1999 (2) UPLBEC 1226 to show that: Article 137 of Limitation Act has no application to an industrial dispute; and the labour court can not refuse to answer the question merely on the ground of delay. The Mahavir Singh case is a short decision but the Ajaib Singh case is a detailed one and considers the law in this regard.
No Limitation
15. The Supreme Court in the Ajaib Singh case has held that the provision of article 137 of schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act. The portion in italics is an excerpt from the Ajaib Singh''s case. The full excerpt is as follows: It Mows, therefore, that the provisions of Article 137 of the Schedule to 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. 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 a/so 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 tribunal will be five years after which the Government can refuse to make a reference on the ground of delay and latches 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 37C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the Legislature in its wisdom had thought it fit not to prescribe any period. Accordingly the rulings cited by Sri Sameer Sharma cannot be said to lay down the law correctly. The labour court can not decline to adjudicate a dispute merely on the ground: of delay (laches); or that it was raised after the expiry of the period of limitation provided under Article 137 of the Limitation Act. But does it conclude the controversy in the present case? Is the award of the labour court liable to be quashed in view of Ajaib Singh case? This is considered in the next point.
4th POINT : DELAYPREJUDICE
16. Sri P.N. Tripathi, learned counsel for the petitioner, borrowing the words of the Ajaib Singh case argues that 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 wage instead of full back wages. He borrowing the words of the Supreme Court says, on account of the admitted delay, the labour court ought to have appropriately moulded the relief by denying the workman some part of the back wages. The portion in italics in this paragraph is from the Ajaib Singh case but could not decline to decide the dispute.
17. I have already held while deciding the question No. 1 and No. 2 that the labour court did not follow the procedure correctly and the order of the labour court holding that the domestic inquiry was unfair is illegal. If the domestic inquiry was fair, then no relief could be granted to the petitioner. But apart from it, the Ajaib Singh Case is not only distinguishable but in a way supports the final view taken by the labour court.
The Ajaib Singh and Other Cases Are Distinguishable
18. The employer in the Ajaib Singh case had neither raised any objection regarding delay nor about any prejudice due to delay before the labour court. The issue regarding the jurisdiction of the labour court to entertain the reference was not pressed by the employer. The labour court had decided the industrial dispute and directed the reinstatement of the workman. The award of the labour court was challenged before the High Court on the ground that the workman was not entitled to any relief as he slept over the matter for seven years. This was upheld by the High Court. The question of delay was raised for the first time before the High Court but even then no objection regarding prejudice was taken. It is in light of these facts that the Supreme Court made these observations and set aside the judgment of the High Court. This is clear from paragraph 2 and following observation in the Ajaib Singh''s case:
In the instant case the respondentmanagement is not shown to have taken any plea regarding delay as is evident from the issues framed by the labour court. The only plea raised in defence was that the labour court had No. jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Has this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The finding of facts returned by the High Court in writ proceedings even without pleadings were, therefore, unjustified.... The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence regarding delay, he could not be deprived of the benefits under the Act merely on technicality of law.
19. This is not the case here. The plea of prejudice due to delay was taken before the labour court. It has been proved. The labour court has held that: the Corporation has been prejudiced; it does not have any documents regarding the case. The Ajaib Singh''s case is distinguishable so is the other decision of the Supreme Court in the Mahavir Singh''s case and the single Judge decision of this court in Ram Lakhan Singh''s case. In these cases neither prejudice due to delay was pleaded, nor proved. These cases proceed on the footing that delay in raising the industrial dispute had not caused any prejudice to the employer.
The Labour Court May DeclineIf Prejudice Was Caused
20. The Supreme Court in the Ajaib Singh case has observed that 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. The portion in italics is from the Ajaib Singh''s case. Here it is neither a technicality of law, nor a hypothetical defence. Prejudice has been pleaded, proved, and accepted by the labour court. The Ajaib Singh case does not condemn an award of a labour court if it has declined to decide the dispute in case of prejudice due to delay. The award of the labour court does not run afoul of the Ajaib Singh''s case. I am afraid even if I would have held the points number 1 and 2 in favour of the petitioner, I wouldn''t have quashed the award of the labour Court.
CONCLUSION
21. The burden to prove, that a domestic inquiry is unfair is, on the workman. The labour court before deciding thiscontroversy should examine: the inquiry report, the dismissal order, the memorandum of appeal, and the appellate order if any. There in no limitation for raising an industrial dispute. But a labour Court may decline to decide a dispute if due to delay prejudice has been caused. Here, due to delay prejudice was caused to the Corporation and the labour court has rightly not granted any relief to the petitioner. The writ petition has no merits. It is dismissed.
