Punjab-Haryana High Court
State Of Haryana And Another vs Ramesh Kumar on 10 May, 2013
Author: Rakesh Kumar Jain
Bench: Jasbir Singh, Rakesh Kumar Jain
CM No.1474 of 2013 and -1-
LPA No.561 of 2013 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CM No.1474 of 2013 and
LPA No.561 of 2013 (O&M)
Date of Decision: 10.5.2013
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State of Haryana and another
. . . .Appellants
Versus
Ramesh Kumar
. . . . Respondent
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CORAM: HON'BLE MR.JUSTICE JASBIR SINGH, ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Kulvir Narwal, Addl. A.G. Haryana.
Mr.Ramesh Goyat, Advocate,
for the respondent.
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RAKESH KUMAR JAIN, J.
A batch of 8 writ petitions were decided by the learned Single Judge by a common order, however, the facts were extracted from CWP No.7766 of 2005.
The industrial dispute raised by the respondent was not referred by the Government to the Labour Court on the ground of delay. The learned Single Judge allowed the writ petitions with the following observations:
"I have heard the learned counsel for the parties and in my considered opinion in the present case the Government has acted CM No.1474 of 2013 and -2- LPA No.561 of 2013 (O&M) illegally while declining to refer the industrial dispute to the Labour Court on the ground of delay. It has been held in Sapan Kumar Pandit Versus U.P. State Electricity Board and others, AIR 2001 SC 2562 that the Government can exercise its power under Section 10 of the Act and refer the industrial dispute at any time so long as the dispute exists. The power of the Government is to be exercised reasonably and in a rational manner. In the instant case the Government has declined to refer the matter only on the ground that the reference was sought after more than six years of the termination of the services by the workman without any satisfactory explanation and without coming to the conclusion about the existence of the dispute. The workman in this case has stated that he was approaching the Government for his reinstatement, but when he was not heard, he issued the demand notice and raised the industrial dispute. Hence the dispute was existing.CM No.1474 of 2013 and -3-
LPA No.561 of 2013 (O&M) In the present case the Government while declining the reference on the aforesaid ground has referred the decision in The Nedungadi Bank Ltd.'s case (supra), which, in the facts and circumstances, is not applicable in this case. Undisputedly in that case the reference made by the Government was set aside by the learned Single Judge on the writ Petition filed by the management. The order of the learned Single Judge on the writ petitioin filed by the Management. The order of the learned Single Judge was set aside by the Division Bench and the action of the Government making reference under Section 10 of the Act was upheld. In that case the workman sought the reference of his illegal termination on the ground that two other employees of the management were subsequently reinstated, therefore, he should have also been reinstated. The said dispute was raised after a long time. In these facts, Hon'ble Supreme Court has held that a stale dispute could not be the reference under Section 10 of the Act. The Hon'ble Supreme Court, in the facts and circumstances of the CM No.1474 of 2013 and -4- LPA No.561 of 2013 (O&M) said case, came to the conclusion that there were no issues pending at that time when the reference was made to the Labour Court. Therefore, the appropriate Government was not justified to refer the dispute. This is not the position in the present case. In this case, it cannot be said that the dispute raised by the workman was a stale one and was not existing, and thus could not have been referred. From the facts, it appears that there was a genuine dispute between the workman and the management which the workman was entitled to get adjudicated from the Labour Court. The Government, in the present case, was not justified to decline the reference merely on the basis of limitation. The issue with regard to limitation can be taken care of by the Labour Court. The Labour Court, while taking into consideration the said issue, can mould the relief by refusing back wages or directing payment of part of back wages to the workman. Therefore, all aspects of the matter will be properly taken care of by the Labour Court while adjudicating the dispute.
Merely on the ground of delay the CM No.1474 of 2013 and -5- LPA No.561 of 2013 (O&M) Government was not justified in refusing the reference of the dispute raised by the petitioner and denying the adjudication of the industrial dispute by the Labour Court. In view of the aforesaid, the writ petitions are allowed and the Government is directed to re-consider the issue in accordance with law and in light of the observations made herein-above, and take a decision with regard to making reference under Section 10 of the Act within a period of two months."
Aggrieved against the said order, the present appeal has been preferred along with an application bearing CM No.1474-LPA of 2013 in which prayer has been made for condonation of delay of 205 days by invoking Section 5 of the Limitation Act, 1963 (for short 'the Act').
It is pleaded in the application that the impunged order was passed on 23.7.2012 by the learned Single Judge. Copy of the order was received on 27.8.2012 in the office of the Executive Engineer, D&P, Public Health Engineering Division, Sonipat, thereafter, opinion of the Advocate General, Haryana was sought as to whether the case was fit for filing the appeal or not which was given by the office of Advocate General, Haryana vide memo No.51454 dated 15.11.2012 and the instructions from the office of CM No.1474 of 2013 and -6- LPA No.561 of 2013 (O&M) L.R., Haryana was received vide memo dated 23.10.2012. It is submitted that because of the administrative exigencies the delay has been caused.
It is worthwhile to mention that limitation to file intra-court appeal is provided in Article 117 of the Act which reads as under:
Description of Period of Time from
appeal limitation which period
beings to run
117 From a degree Thirty The date of
or order of any the decree or
High Court to days order.
the same Court.
As per averments made in the application, the order of learned Single Judge was passed on 23.7.2012 and the copy of the order was received on 27.8.2012. There is no explanation as to why period of about 3 months was taken in obtaining the opinion of the office of Advocate General, Haryana for the purpose of filing appeal which has been ultimately filed on 5.3.2013 again after expiry of period of almost four months. In the absence of any explanation and the fact that the period of limitation is 30 days, having been provided in the Act from the date of order which is to be challenged by way of intra-court appeal, no sufficient cause has been found as envisaged under Section 5 of the Act for the purpose of condonation of delay. Consequently, application for condonation of delay is hereby dismissed. Even otherwise it has been stated by learned counsel for CM No.1474 of 2013 and -7- LPA No.561 of 2013 (O&M) the respondent that in terms of the impugned order, the matter has been referred to the Labour Court. The appeal is thus, also dismissed on merits.
(JASBIR SINGH) (RAKESH KUMAR JAIN) ACTING CHIEF JUSTICE JUDGE 10.05.2013 Vivek