Calcutta High Court (Appellete Side)
Ac M/S. Precious Carrying Corporation ... vs The Second Labour Court & Ors on 8 October, 2013
Author: Harish Tandon
Bench: Harish Tandon
1
Court 8.10.2013 W.P. 6303 (W) of 2012
No.
22
Sl 42
Ac M/s. Precious Carrying Corporation Ltd.
-vs-
The Second Labour Court & Ors
Ms. Lovely Das Gupta
Mr. Nirmalendu Bhattacharya
Ms. Priti Jain ... For Petitioner
Mr. Soumya Majumdar
Mr. Partha Dutt
Mr. Madhusudan Roy ... For Respondent No. 5
Mr. N.C. Bhattacharya Ms. A. Deb Jana ... For State The dormant employer suddenly woke up after an order under Section 33 C (2) of the Industrial Act, 1947 is passed.
The respondent workman raised a dispute before the Concilliation Officer on the plea of refusal to employment and subsequently approached the Labour Court by filing an application under Section 10 (1B) (d) of the said Act.
The dispute arose is as far back as in the year 1998.
The petitioner Company contested the proceedings by filing written statement before the Labour Court and took various pleas to thwart the case of the respondent workman.
The Labour Court framed issues on the basis of the respective stands of the parties and, thereafter, the parties went into trial by adducing evidence.
After closure of the evidence and the argument, so advanced before the Labour Court, an award is passed on 12th October 2006 directing the petitioner Company to reinstate the respondent workman with 25% back wages. Despite such award, having been passed by the Labour Court, the petitioner Company did not take any step, the respondent workman approached 2 the Labour Court with an application under Section 33C (2) of the said Act alleging that the petitioner Company has neither allowed him to join the duty nor has paid the back wages.
Admittedly the said application is disposed of ex parte on February 11, 2009 by calculating a sum of Rs.3,53,125/- to be paid by the petitioner Company.
The petitioner Company, in this writ petition, not only challenges the order passed under Section 33C (2) of the said Act but also challenges the award passed by the Labour Court. The petition appears to have been affirmed on 26th March 2011 but the writ petition was filed on 27th March 2012. On the very first day of moving the writ petition, it was submitted on behalf of the petitioner that an application for amendment has already been taken out which is required to be disposed of first.
Subsequently, an application for amendment appeared and the Court allowed the said application after recording 'No Objection' from the learned advocate appearing for the respondents.
The main writ petition, thereafter, appeared before this Court and an order for filing the amended writ petition was passed.
It is tried to be contended by the learned advocate, appearing for the petitioner, that once consent is given for filing an application for amendment, the respondents are precluded from raising a plea of gross delay and laches in taking out the writ application.
In fact, the entire submission is based upon the recording made in the order dated 17th September 2012 where this Court observed that the said application for amendment would neither change the nature and character of the writ petition nor would adversely affect the right of the respondents which might have accrued in their favour.
Drawing inspiration from the above 3 observation, it is contended that after the application for amendment is allowed with the aforesaid findings, it forecloses the right of the respondents to agitate the question relating to delay and laches in taking out the writ petition.
I am afraid such interpretation cannot be attributed to the observations recorded by the Court while allowing the application for amendment of the writ petitioner.
The consideration of an application for amended is founded completely on a different footing than the consideration to be made at the time of final disposal of the main proceedings.
The Court, at the time of considering an application for amendment, would confine itself to the satisfaction whether such an amendment is necessary for the purpose of adjudication of the disputes involved in a proceeding. It goes without saying that mere allowing an application for amendment cannot be construed that the facts narrated therein become sacrosanct and does not require to be proved any further as the facts, brought by way of an amendment, are required to be proved in a similar and identical manner as those made in the original proceedings.
This Court, therefore, does not find any substance in the submission of the petitioner that the respondents, having consented and allowed the petitioner Company to file an application for amendment, have forgone and/or waived their right to raise the ground of delay and laches in the main proceedings.
Furthermore, after the application for amendment is allowed, the writ petition was listed on the 5th of September 2013 when this Court directed the petitioner to file the amended copy of the writ petition. Therefore, this Court is taking up the writ petition for the first time today.
4The petitioner relies upon a judgment of the Allahabad High Court in the case of Nathaniel Masih -vs- U.P. Scheduled Caste Finance & Development Corporation, reported in 1989 LAB. I.C. 2276, to contend that if a plea of delay and laches is not taken at the time of admission of the writ petition, the same cannot be taken at a later stage.
As already indicated, the writ petition was never listed until this day as the petitioner took out an application for amendment which was allowed by the Court. This Court, therefore, does not find that the judgment, rendered by the Allahabad High Court, is of any assistance to the petitioner.
I am not unmindful of the proposition of law that there is no prescribed period of limitation in taking out an application under Article 226 of the Constitution of India but the parties cannot be allowed to agitate a plea after a lapse of considerable period of time as it would make a dead leaf alive. There is obviously an exception to the aforesaid proposition that if the matter involves infringement of the fundamental right then certainly the delay and laches cannot be a ground for dismissal the writ petition.
Though there is no prescribed period of limitation for maintaining the writ petition but normally the period, enshrined for institution of a suit under the Limitation Act, should be taken into account.
It is no doubt true that the award was passed on contest in the year 2006. Even the amended pleadings do not suggest the reasons for which the writ petition could not be taken out earlier. There is no sufficient explanation indicated in the writ petition justifying the delay even after the amendment is carried out by the petitioner. A dormant and lethargic litigant cannot be encouraged to approach the Court at its sweet will and pleasure; more particularly after a gap of nearly six years.
5This Court, therefore, finds that there is gross delay and laches on the part of the petitioner in approaching this Court promptly and the writ petition, on such ground, is liable to be dismissed.
The petitioner has made various submissions touching the merit of the award; one of such plea is that the Concilliation Officer must have undertaken investigation before passing an order of reference and the other plea is that the Labour Court ought to have gone into the fact that there was no existence of an Industrial Dispute as the matter relates to transfer of an employee and not refusal to employment or termination, as has been alleged by the respondents.
This Court, certainly would have ventured to decide the aforesaid points but since this Court has already held, in the preceding paragraph, that there was gross delay and laches on the part of the petitioner Company in filing the instant writ petition, those questions are not required to be considered and/or gone into.
The jurisdiction vested on the Labour Court, under Section 33C (2) of the said Act, is akin to an Executing Court. The Labour Court, while exercising such powers, decides on the pre-existing rights of the parties and does not declare such rights for the first time. The order, though passed ex parte, is on the basis of pre- existing right declared, under the award passed on contest, by a competent Court.
The petitioner also did not address the Court on the merit and demerit of the said order but has simply proceeded that the said order was passed ex parte as no notice was given to the petitioner Company. Even if this Court accepts that such submission is correct, since the adjudication made therein is based upon the award which is still binding between the parties and staring at the petitioner Company, this Court does not intend to set 6 aside and/or upset the order.
Accordingly, the writ petition fails on all accounts.
There will, however, be no order as to costs.
(Harish Tandon, J.)