S.B. Deshmukh, J.
1. The petitioner challenge the reference made by the respondent No. 1 under Sub-section (1) of Section 10 and Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act of 1947, for short). This order of reference is passed by respondent No. 1 on 5th January, 1991 and the issue referred is 'Shri Vasant Vishnu Shinde should be reinstated with full back wages and continuity of service with effect from 12th August, 1982'.
2. A resume of few relevant facts, may be summarised as follows:
(a) Kopargaon Agricultural Produce Marketing Committee is the petitioner with whom respondent No. 3 was working as 'Accountant'. The managing committee of the petitioner is governed and regulated by the provisions of Maharashtra Agricultural Produce Marketing (Regulations) Act, 1963 and Rules of 1967 (hereinafter referred to as the Act of 1963, and Rules of 1967 for short). Petitioner also framed its own rules regulating the service conditions of its employees and they are claimed to have been duly approved. The respondent No. 3 allegedly misappropriated funds of the petitioner. The petitioner allegedly initiated departmental inquiry against the respondent No. 3 and he was found guilty. Respondent No. 3 was allegedly dismissed from the service. Auditor had raised objections regarding misappropriation of the amount of petitioner, by respondent No. 3. The Auditor had lodged a complaint in the Court of learned Judicial Magistrate, First Class at Kopargaon against respondent No. 3.
(b) The respondent No. 3, filed an application for initiation of the proceedings under the provisions of the Act of 1947. The respondent No. 1 made a reference of Industrial Dispute to Labour Court at Ahmednagar, by the order passed on 5th January, 1991.
(c) The respondent No. 3 allegedly had tendered his resignation voluntarily on 26th August, 1982. It was accepted by the managing committee of the petitioner. Respondent No. 3 subsequently filed appeal, in accordance with the Act of 1963 and Rules of 1967.
(d) The respondent No. 3 withdrew the appeal filed by him.
(e) The respondent No. 3 deposited the alleged amount of misappropriation, with the petitioner.
3. As noted above, the respondent No. 1, by the order passed on 5th January, 1991, referred the Industrial Dispute for consideration, which reads thus :
Shri Vishnu Vasant Shinde should be reinstated with full backwages and continuity of service with effect from 12th August, 1982.
4. The learned Counsel for the petitioner submits that no industrial dispute was in existence on the date of passing of the order by the respondent No. 1. It is stale dispute, if at all it is an industrial dispute.
5. The expression 'Industrial Dispute' is defined under Section 2(k) of the Act of 1947, it read thus:
2(k) 'industrial dispute' means any dispute or difference between employees and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment of the terms of employment or with the conditions of labour, of any person.
6. The respondent No. 3 was working with the petitioner as Accountant. Along with the petition, copy of alleged resignation of respondent No. 3 is annexed. It is dated 26th August, 1982. On behalf of the petitioner, it is submitted that the respondent No. 3 has voluntarily tendered resignation on 26th August, 1982. The respondent No. 3 is not dismissed by the petitioner. It is also pointed out that the petitioner has considered the resignation of respondent No. 3 in the meeting of its managing committee held on 26th August, 1982. In this resolution, it is mentioned that subject No. 3 and 9 of the earlier meeting of the managing committee, held on 12th August, 1982 stand cancelled. Resignation of Mr. Shinde i.e. respondent No. 3 was resolved to be accepted. It seems that the respondent No. 3 had filed an appeal before the District Deputy Registrar, Cooperative Societies, State of Maharashtra. The petitioner has annexed copy of communication by the respondent No. 3. In this communication Exhibit-B, respondent No. 3 has withdrawn his appeal filed on 23rd August, 1982. From this communication, it appears that copy of the said communication was given to Chairman of the petitioner as well as President, Maharashtra State Marketing Federation Employees Society. The learned Counsel for the petitioner, thus, submits that the respondent No. 3 had misappropriated funds of the petitioner. He accepted the misappropriation and deposited the amount of misappropriation in the Court of learned Judicial Magistrate, First Class at Kopargaon. He had voluntarily tendered resignation which was accepted by the managing committee of the petitioner. Remedy of appeal, made available by the special statute i.e. the Act of 1963 and Rules of 1967 was exhausted by the respondent No. 3. However, the said appeal has been withdrawn by him. Therefore, no industrial dispute, within the meaning of Section 2(k) of the Act of 1947 existed on the date of the reference by the respondent No. 1. The grievance filed by the respondent No. 3 thus regarding industrial dispute, is stale.
7. The learned Counsel for the petitioner also submits that the respondent No. 3 was working as an Accountant with the petitioner. The respondent No. 3 cannot be said to be a workman, within the meaning of Section 2(s) of the Act of 1947. He also refers to Rule No. 100 of the Act of 1963 and Rules of 1967. According to him, Accountant is the officer and not workman. In support of his submissions, the learned Counsel for the petitioner has invited my attention to the judgment of the Apex Court in the matter of The Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. reported in : (2000)ILLJ561SC . In the matter of Nendungadi (supra) it seems that reference was made by the Central Government. The respondent, in that matter, was working as a Clerk and had put in ten years service. Disciplinary proceedings were initiated against him for misappropriation and falsifying the books of the bank. Show cause notice for grave misconduct was also served to him. The respondent, in that matter, admitted his guilt and prayed for mercy. Respondent, however, was dismissed from the service of the bank with effect from 11th August, 1972. Respondent filed appeal to the Board of Directors of the Bank. His appeal was dismissed by the order dated 30th January, 1973. Thereafter, after a period of seven years, served a notice on the bank contending that he was discriminated as two other employees of the bank under similar situation were reinstated in the service of the bank. On the background of these facts, the Apex Court held that at the time when the reference was made no industrial dispute was existed and could be even said to have been apprehended. Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The Apex Court also held that an administrative order which does not take into consideration statutory requirements or travels outside, that is certainly subject to judicial review, limited though it may be. The Apex Court noted the facts that the third respondent in that matter admitted his guilt and only pleaded for merciful treatment and accepted the amount due to him in full satisfaction of his claim. All those factors have a bearing on the question as to whether in spite of all these the industrial dispute still subsists meriting reference and also in regard to the question as to whether it cannot be said that, in the circumstances, it is expedient to refer the dispute to the Tribunal. The Apex Court also observed, in para 6 that 'in the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the Rules governing his conditions of service.' Facts in the case on hand are different and therefore ratio of this judgment is not helpful to the petitioner.'
8. Learned Counsel for the petitioner refers to the judgment of the Apex Court in the matter of ANZ Grindlays Bank Ltd. v. Union of India and Ors. reported in AIR 2005 SCW 5785. In the matter of ANZ (supra) the Apex Court held that normally a writ petition under Article 226 of the Constitution should not be entertained against an order of the appropriate Government, making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was no occasion for making a reference. The Apex Court, thereafter, referred to the facts obtaining in the matter of ANZ and observed that - 'however, in the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. Thus, undisputedly facts in the cited judgment are important.
Learned Counsel for the petitioner referred to another judgment of the Apex Court in the matter of National Engineering Industries Ltd. v. State of Rajasthan and Ors. reported in : (2000)ILLJ247SC . It seems from the judgment of the Apex Court, in the matter of National Engineering (supra) that there was a tripartite settlement arrived at amongst the management, labour union and the staff union. The Apex Court also held that the validity of the reference cannot be considered by the Industrial Tribunal since the reference is made by the appropriate government. Here also facts of cited judgment are distinguishable.
Learned Counsel for the petitioner, in support of his proposition that in case of availability of the alternate remedy under the special statute, reference cannot be made, relied on a judgment of the learned Single Bench of Calcutta High Court in the matter of Ashok Bin Factory and Ors. v. State of West Bengal and Ors. reported in 2003 (1) CLR 862. The learned Single Bench of Calcutta High Court held that the State has wrongly referred the dispute before the Tribunal for adjudication as the provisions of the Industrial Disputes Act, 1947 have no manner of application in the present case in view of the enactment of The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and The West Bengal Beedi and Cigar Workers (Conditions of Employment) Rules, 1968.
The learned Counsel for the petitioner also relied on a judgment of the Apex Court in the matter of Assistant Engineer, C.A.D., Kota v. Dhan Kunwar reported in AIR 2006 SCW 3571. The Apex Court, in the matter of Assistant Engineer (supra) held that in case of delay of about eights years, Labour Court should not have granted relief in favour of the workman. In the matter of Chief Engineer, Ranjit Sagar Dam and Anr. v. Sham Lal reported in AIR 2006 SCW 3574, the Apex Court held that delay of nine years, in seeking reference is fatal to the case of workman.
9. Learned Counsel for the respondent relies on a judgment of the Apex Court in the matter of Agricultural Produce Market Committee v. Ashok Harikuni and Anr. reported in : AIR2000SC3116 . In the matter of A.PM.C. (supra) it is held that A.P.M.C. is an industry within the meaning of Section 2(j) of the Act of 1947. It appears that seven employees were terminated by the marketing committee and reference thereof was made by the appropriate Government to the Labour Court. The Labour Court allowed the applications and that is how ultimately the matter was before the Apex Court. In short, evidence was lead in the matter.
Another judgment relied on by the learned Counsel for the respondent, is in the matter of National Engineering Industries Limited v. Kishan Bhageria reported in : (1988)ILLJ363SC . In the matter of National Engineering (supra) it is held by the Apex Court that employee working as Internal Auditor on a monthly salary, can be said to be a workman within the purview of Section 2(s) of the Act of 1947. It further appears that the evidence was led before the Labour Court and on the basis of the evidence, findings were recorded. The matter ultimately was referred before the Apex Court and appreciating the evidence, Apex Court held that Auditor is a workman as defined under Section 2(s) of the Act of 1947.
Learned Counsel for the respondent invited my attention to the judgment of the Apex Court in the matter of Ved Prakash Gupta v. Delton Cable India Private Limited reported in : (1984)ILLJ546SC . Here also, the status of Security Inspector, on appreciation of the evidence, was held to be a worker within the meaning of Section 2(s)(iii) of the Act of 1947.
In the matter of South Indian Bank Ltd. v. A.R. Chacko reported in : (1964)ILLJ19SC , Apex Court had considered a case of Accountant in relation to definition of workman under Section 2(s) of the Act of 1947. Needless to say that evidence was recorded and ultimately on appreciation of the evidence, the Apex Court has recorded a finding regarding the status of the workman in that case.
10. Learned Counsel for the respondent has invited my attention to the judgment of the Apex Court in the matter of Ajaib Singh v. Sirhind Co-operative Marketing Cum-processing Service Society Limited reported in : (1999)ILLJ1260SC . According to the learned Counsel, in the matter of Ajaib Singh (supra) it appears that the dispute regarding termination of services of the workman was referred to the Labour Court by the appropriate Government and evidence was led before the Labour Court. In para 10 of the judgment, the Apex Court held 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. 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. No reference to the labour Court can be generally questioned on the ground of delay alone. In case of delay, the Tribunal, Labour Court or the Court dealing with the case can appropriately mould the reference by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal.
In the matter of Jai Bhagwan v. Management of The Ambala Central Cooperative Bank Limited : State of Haryana reported in : (1984)ILLJ52SC it is held by the Apex Court that raising an industrial dispute is a well recognised and legitimate mode of redress available to a workman which has achieved statutory recognition under the Industrial Disputes Act, and this statute recognised mode of redress should not be denied to a workman because of the existence or availability of another remedy.
11. In the matter of Ruston & Hornsby (I) Ltd. v. T.B. Kadam reported in AIR 1975 SC 2025, it is held by the Apex Court that 'the only relevant factor for consideration in making a reference under Section 10 is whether an industrial dispute exists or is apprehended.'
In the matter of Mahavir Singh v. U.P. State Electricity Board and Ors. reported in : (1999)IILLJ482SC the Apex Court held that even though industrial dispute raised a little over six long years after termination of service, it cannot be a ground for rejecting the reference. The delay in raising the dispute can be taken care of by moulding the relief in favour of the workman.
In the matter of Shahaji v. Executive Engineer, PWD reported in : (2005)IIILLJ522SC the Apex Court held that even if there is delay, if the Labour Court comes to the conclusion that termination was illegal it can suitably mould the relief to be granted to the workman. In this case, workman Mr. Shahaji was allegedly terminated with effect from 1st June, 1980. Reconciliation proceedings took place much later in the year 1986. Matter was referred by the appropriate Government under Clause (c) of Sub-section (1) of Section 10 read with Section 12 of the Industrial Disputes Act, 1947. The Apex Court observed, in para 6-'...In the instant case there was no ground of delay urged by the management. Moreover, even if there was delay in making the reference to the Labour Court, if it came lo the conclusion that the termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay.'
12. In the matter of Harnam Singh and Ors. v. Punjab State Electricity Board and Ors. reported in : (2000)IILLJ1413SC the Apex Court has considered the contention raised by the respondents that the appellants were working under them and their claim was belated in spite of a specified reference thereto, in the report of the Conciliation Officer. The Apex Court in para 4 held:
4. The High Court, though notices that the proceeding arises under Section 10 of the Industrial Disputes Act and making of a reference thereto is administrative in character, still it has examined this matter as if sitting in appeal on the reference made. In fact the scope of the investigation in such a matter is very limited and in this case the two issues could not have been decided except by adjudication before the competent authority concerned.
13. Learned Counsel for the respondent has also invited my attention to a judgment of the Apex Court in the matter of Sharad Kumar v. Govt. of NCT of Delhi and Ors. reported in : (2002)IILLJ275SC . In the matter of Sharad Kumar (supra) appeal was filed in the Apex Court by the employee against the order dated 10th July, 2000 of the Delhi High Court declining to interfere with the order of the Government of National Capital Territory of Delhi refusing to refer the dispute raised by the appellant to the Industrial Tribunal/Labour Court on the sole ground that he is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The Apex Court held that determination of the question as to whether appellant in that case is workman, depends on the types of duties assigned or discharged by the employee and not merely on the designation of the post held by him. The Apex Court further observed, in para 31, that '...We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable.'
14. The case on hand can be decided on the touchstone of principles laid down by the Apex Court in numerous judgments, noted in the foregoing paragraphs. In the case on hand, status of the respondent No. 3 as 'workman', within the meaning of Section 2(s) of the Act of 1947 is challenged by the petitioner. According to the petitioner, he was working as Accountant and, therefore, in view of the provisions of the Act of 1963 and Rules of 1967 he cannot be said to be a workman. Status of a person claiming to be a 'workman' has to be decided in accordance with the definition of 'workman' provided under Section 2(s) of the Act of 1947, in relation to Sections 10 and 12 of the Act of 1947. The status of respondent No. 3 as to whether he can be said to be a workman, within the definition of Section 2(s) of the Act of 1947 cannot be decided only on the basis of nomenclature of the post held by respondent No. 3 to that of Accountant. Nature of the duties assigned to him and discharged by him, the pay scale, if any, given to him and so many other factors can be brought on record by the parties in support of their contention. It is on the basis of the material to be placed on record, before the Labour Court, question, regarding status of the respondent No. 3 as workman, can be adjudicated upon. This cannot be said to be a matter to be considered and decided in exercise of the power under Articles 226 and 227 of the Constitution, by this Court. The reference to Special Act i.e. the Act of 1963 and Rules of 1967 also will not be helpful to the petitioner. As held by the Apex Court in the matter of Ajaib (supra) resolution of dispute and redressal therefor is provided under the provisions of the Act of 1947. Only because of availability of the appeal under the Act of 1963 and Rules of 1967 cannot be a ground to non-suit the respondent No. 3.
15. The contention of the learned Counsel for the petitioner cannot be accepted that it is a stale dispute. In response to the petition, reply affidavit is filed by the respondent No. 3. In his reply affidavit, respondent No. 3 has contended that he has been dismissed on 12th August, 1982 by the petitioner and there was no question of resignation thereafter i.e. on 26th August, 1982. He also avers in para 4 of the reply affidavit that he was compelled to submit a resignation under the threats of being prosecuted. The order of his dismissal was passed without following the proper procedure and giving him an opportunity of being heard. According to him, the order dated 12th August, 1982, dismissing him from the service, was illegal and not tenable. He refers to the resignation dated 26th August, 1982 as obtained under the threats and duress. He also refers to various representations made to the various authorities, in para 5 of his reply. Regarding appeal and its withdrawal, he claims to be under the threats of being prosecuted. He refers to then Secretary and Members of the committee in relation to threats. According to him, he was getting consolidated salary of Rs. 1200/- per month, only.
16. Along with this reply affidavit, he has annexed copy of application filed by him in the Court of learned Judicial Magistrate First Class (Exhibit R-l) in Criminal Case No. 74 of 1984. From this application, it appears that the learned Judge has recorded a fact of deposit made by the respondent No. 3, of an amount of Rs. 19,595.20 Ps. and in view of the Government Circular, respondent No. 3 was discharged. Copy of the appeal is annexed with this counter as Exhibit-R/2 dated 23rd August, 1982. In this appeal also, reference of pressure exerted by the committee members is being mentioned. A communication dated 6th December, 1982 is also placed on record, explaining the circumstances and ultimately request was made for reinstatement. There are some communications also addressed by the respondent No. 3 to various authorities/Ministers of the State Government. It appears that on 23rd March, 1990 he had submitted representation in support of the conciliation proceedings to the Conciliation Officer. In the year 1990 also he addressed some communication to the Chairman of the petitioner society. It is admitted fact that there is no rejoinder filed by the petitioner. Thus, from the counter and annexures produced on record, along with the counter, it appears that the respondent No. 3 was trying to explain to the authorities that the resignation was not voluntary and it had been tendered due to pressure of the then committee members and the Secretary. At this juncture, reference also can be made to the resolution of the committee which is produced on record by the petitioner. This resolution is dated 26th August, 1982 i.e. the date on which alleged resignation is given by the respondent No, 3. In this resolution, reference is made to earlier subject Nos. 3 and 9 of the meeting dated 12th August, 1982. These subjects are reconsidered and are cancelled. Those subjects are not on record but impliedly it appears that those two subjects must be in relation to some action against the respondent No. 3. Since he had tendered resignation, therefore, action according to those subject Nos. 3 and 9 earlier resolved in the meeting held on 12th August, 1982 came to be cancelled. This is a factual aspect of the matter. Parties may have their own contention and evidence in support of that contention. This has to be adjudicated upon by the Labour Court. This Court cannot exercise the power under Article 226 and 227 of the Constitution and record a finding that the reference made by the appropriate Government under Sub-section (1) of Section 10 read with Section 12 is wrong and illegal. Respondent No. 3 had made several representations to the petitioner and various other authorities of the State Government. It is also pertinent to note that demand notice was addressed by the respondent No. 3 to the petitioner on 14th April, 1989, through Advocate. In such fact situation, it cannot be said that the reference is stale and no dispute existed on the date when it was referred by the State Government. It appears that the Conciliation Officer, after hearing both the parties submitted a failure report to the appropriate authority and ultimately reference is made to the Labour Court by the respondent No. 1. I see no perversity in the order impugned of reference made by the respondent No. 1, in this writ petition.
17. The alleged termination of the respondent No. 3 is dated 12th August, 1982, Rule was issued in this petition on 22nd January, 1991. Interim relief was also granted in terms of prayer Clause (C). The respondent No. 3 seems to be 77 years old person.
18. In the result, writ petition stands dismissed. Interim relief granted by this Court, stands vacated. Learned Judge, Labour Court, Ahmednagar is directed to decide the reference expeditiously and by 20th December, 2007. Parties to appear before the Labour Court, Ahmednagar on 16th of April, 2007 at 11.00 a.m. The learned Judge, Labour Court, Ahmednagar shall decide the controversy between the parties, in accordance with the evidence led by the parties and the provisions of law.
19. Rule discharged with above directions. No costs.