'Stale' Industrial Dispute Raised After 13 Years Cannot Be Revived: Calcutta High Court Dismisses Writ Against Refusal Of Reference
The Calcutta High Court has dismissed a writ petition challenging the refusal of the Central Government to refer an industrial dispute for adjudication, holding that an industrial dispute raised after an inordinate and unexplained delay cannot be revived merely on the strength of a failure report under Section 12(4) of the Industrial Disputes Act, 1947.
Justice Ajay Kumar Gupta was hearing a challenge to the order dated 28 June 2019 passed by the Ministry of Labour and Employment, Government of India, refusing to refer the petitioner's dispute with Bank of India to the Central Government Industrial Tribunal. The petitioner, a former clerk-cum-accounts clearance staff of Bank of India, sought a direction for reference of the dispute relating to his compulsory retirement from service.
The petitioner was appointed in 1994 and was transferred in July 2003 to the Kolkata Municipal Corporation office of Bank of India. During his service, departmental proceedings were initiated against him on allegations of misappropriation of funds entrusted to him for disbursement of salaries. Upon conclusion of the enquiry, the Disciplinary Authority imposed the punishment of compulsory retirement under Clause 6(c) of the Memorandum of Settlement dated 10 April 2002, by an order dated 26 March 2004. The punishment was affirmed by the Appellate Authority on 12 July 2004.
After the appellate order, the petitioner exhausted several remedies. His review representations failed, and a writ petition challenging the disciplinary action, being W.P. No. 7589 (W) of 2011, was dismissed by the High Court in 2018. Subsequently, the petitioner attempted to invoke Section 2A(2) of the Industrial Disputes Act in 2019, though the provision had already been repealed. He ultimately raised an industrial dispute in December 2017, nearly 13 years after the punishment order.
During conciliation, the Assistant Labour Commissioner issued a failure report under Section 12(4) of the Act on 18 March 2019, acknowledging the existence of a dispute between the employer and the employee. However, the Central Government refused to make a reference for adjudication, citing the inordinate delay and relying on the Supreme Court's decision in Nedungadi Bank Ltd. v. K.P. Madhavankutty. The petitioner's review against the refusal order was also rejected in March 2022.
The petitioner argued that once a failure report is issued, the appropriate Government cannot enter into the merits of the dispute or refuse reference on the ground of delay, and that the dispute ought to have been referred for adjudication as it arose out of termination of service. Reliance was placed on decisions of the Supreme Court in Ram Avtar Sharma, Telco Convoy Drivers Mazdoor Sangh and Sapan Kumar Pandit.
Rejecting these submissions, the High Court held that while the Government cannot adjudicate the merits of an industrial dispute at the stage of reference, it is nonetheless empowered to refuse reference where the dispute is stale, delayed, and has already attained finality through prior adjudication. The Court observed that the failure to report under Section 12(4) merely records the existence of a dispute and does not curtail the discretion of the Government under Section 10 of the Act.
The Court noted that the petitioner had already challenged the disciplinary action up to the High Court and failed, and thereafter attempted to reopen the issue through industrial adjudication after more than a decade. Such belated disputes, the Court held, would be purely academic and contrary to the object of industrial adjudication.
Relying on Nedungadi Bank Ltd. and other Supreme Court precedents, the Court emphasised that industrial adjudication is not meant to reopen matters that have attained quietus, particularly where evidence would have become stale due to the passage of time. The judgments relied upon by the petitioner were held to be distinguishable on facts.
Finding no illegality, arbitrariness or jurisdictional error in the refusal order dated 28 June 2019, the High Court dismissed the writ petition as devoid of merit, vacated all interim orders and disposed of connected applications, without any order as to costs.
Case: Sri Manish Kumar Pandey Versus Union of India and Others
Case No: WPA 13720 of 2022