Delhi District Court
Sh. Shyam Lal vs M/S Malik Thread Mills on 8 October, 2007
ID No. 1467/2004/1999
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER, LABOUR COURT NO. XII
ID No. 1467/2004/1999
INDUSTRIAL DISPUTE BETWEEN
Sh. Shyam Lal,
C/o General Mazdoor Lal Jhanda Union,
M-714-15, Mangolpuri, Delhi. ................Workman.
AND
M/s Malik Thread Mills,
25/15, Master Mohalla,
Libaspur, Delhi. ................Management.
Date of Institution: 16.4.1999
Date of arguments: 17.09.2007
Date of Award: 08.10.2007
AWARD
1. The Industrial Dispute between the management ofM/s Malik
Thread Mills, 25/15, Master Mohalla, Libaspur, Delhi and its workman Sh.
Shyam Lal, C/o General Mazdoor Lal Jhanda Union, M-714-15,
Mangolpuri, Delhi was referred by Secretary (Labour), Government of The
ID No. 1467/2004/1999
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National Capital Territory of Delhi for adjudication in exercise of powers
conferred by section 10 (1) (c), 10 (1) (d) and 12 (5) of the Industrial
Dispute Act 1947 (in short Act) vide his Order No. F.24 (677) /1999 -
Lab./13692 - 96, dated 31st March 1999, with the following terms of
reference :
"Whether the services of Sh. Shyam Lal have been
terminated illegally and/or unjustifiably by the
management, and if so, to what relief is he entitled and
what directions are necessary in this respect?"
2. The notice was issued to the workman, who filed statement of
claim alleging, in brief, that he was working with the management for the
last 15 years as a machineman on the last drawn wages of Rs. 500/- per
month. He received a letter from his native village that his son was
seriously ill and he applied for sanction of leave w.e.f. 29.4.1987 to
5.6.87. The leave was sanctioned by management, and the workman
went to his native village with the permission and consent of the
management.
ID No. 1467/2004/1999
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3. Unfortunately, the workman himself suffered from serious
illness during the period of sanctioned leave. He sent information to the
management and he was under treatment of the doctors. The workman
sent the medical certificate w.e.f. 6.6.1987 to 19.6.1987 for which proper
medical certificate was also furnished. After becoming medically fit the
workman reported for duty, but the management refused to take the
workman back on duty. The workman, thereafter, forwarded a complaint
in this regard. But despite efforts of the Labour Inspector the
management refused to take the workman back on duty. The
management illegally terminated the services of workman on 21.6.1987.
4. The workman sent a demand notice dated 3.8.1987 to the
management, through union, but the management neither replied nor
complied the same. The dispute was raised by the workman before
Conciliation Officer and the matter was referred to Labour Court for
adjudication. But due to unavoidable circumstances the workman had
not appeared in the court of Sh. A.S. Datir, Presiding Officer Labour
Court and the said Labour Court passed a no dispute award. Therefore,
a fresh industrial dispute is raised by workman. The application of
ID No. 1467/2004/1999
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workman for setting aside the no dispute award was dismissed vide
order dated 19.1.1998.
5. The workman is unemployed from the date of termination of
his services and could not get the job despite his best efforts.
6. The workman has prayed for reinstatement to the job with
continuity of the services and full back wages.
7. The management contested the claim of the workman and
filed written statement with one of the preliminary objections that the
workman has raised the present industrial dispute in which the Labour
Court passed an award dated 06.2.1995, which was published by the
appropriate Government, under Section 17 of ID Act, 1947 which
became enforceable w.e.f. 24.5.1995 and this award cannot be recalled.
According to the management it is not an ex.parte award and it is an
award on merit. The management has alleged that its factory has been
closed permanently w.e.f 01.4.2000. The management has denied the
other facts stated in the statement of claim and has prayed for its
ID No. 1467/2004/1999
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dismissal.
8. The controversies between the parties in the pleadings resulted into
the framing of the following issues by the tribunal on 21.8.2002: -
ISSUES
1. Whether the present statement of claim is maintainable in view of
award passed earlier. OPM.
2. Whether factory of the management has been closed permanently
and if so, to what effect? OPM.
3. As per terms of reference.
4. Relief.
9. In support of his case the workman has filed his affidavit in evidence.
He was cross examined on behalf of management before learned local
commissioner appointed by this tribunal after which he closed his
evidence. The management also examined only one witness namely
MW1 Sh. Sanjay Malik, Partner in the firm of the management and filed
his affidavit in evidence. He was cross examined on behalf of workman
ID No. 1467/2004/1999
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before learned local commissioner, after which the management closed
its evidence.
10. I have heard learned authorized representatives of the parties and
have gone through the written arguments filed on their behalves, record
of the case and relevant provisions of law carefully. My findings on the
issues framed are as under: -
ISSUE NO. 1
11. It is not disputed that the award copy of which is proved by the
workman himself as Ex.WW1/6 was passed on 06.2.1995 against the
workman by Ld. Presiding Officer Labour Court No. III in industrial
dispute No. 685/88 in the earlier industrial dispute raised by the
workman on the same cause of action. The perusal of the award dated
06.2.1995 shows that the industrial dispute in question was decided
against the workman for want of evidence despite opportunities given to
him. Therefore, this award is at par with the award on merit. The labour
ID No. 1467/2004/1999
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court can only give proper opportunities to lead evidence to the parties
and if a party fails to produce evidence despite sufficient opportunities,
then it may be liable to suffer award against it for want of evidence.
Such an award, in my view, bars such a party to re-agitate the matter /
industrial dispute on the same cause of action, more so, when
application for setting aside of the said award was filed by the workman
and was also dismissed. The issue No.1 is, therefore, decided in favour
of the management and against the workman.
ISSUE NO. 2
12. The management has not relied upon cogent and convincing
evidence to show that it has closed its factory. No documentary
evidence is produced in this regard, therefore, issue No. 2, is decided in
favour of the workman and against the management for want of
convincing evidence of management.
ID No. 1467/2004/1999
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ISSUE NO.3
13. In the light of my findings on the issue No.1 the award in the matter
has already been passed by labour court No. III on 06.2.1995 and the
workman re-agitated the matter against the management. It is not a
case where the workman was reemployed after the said award ands the
dispute arose between the parties with regard to subsequent termination
of the services of the workman by the management. Assuming that the
workman is entitled to raise fresh industrial dispute still the present
industrial dispute suffer from inordinate delay and latches on the part of
the workman as services of the workman were alleged to be terminated
on 21.6.87 and the present industrial dispute is raised by the workman in
1999 and the same is stale dispute due to inordinate delay and laches
on the part of the workman, the workman is not entitled to any relief
against the management in the light of following authorities: -
14. In Haryana State Cooperative Land Development Bank Vs
Neelam 2005(2) ST page 314 SC it was held that as follows:-
ID No. 1467/2004/1999
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"although Limitation Act does not apply but the
procedural laws like estoppel, waiver and acquiescence
are applicable to the industrial proceedings"
15. In State of Punjab Vs Kali Dass and Another 1997 (76) FLR P &
H 955 (D.B) wherein it was held as follows:-
"After hearing learned counsel for the parties, we are
of the view that there is merit in the submission of the
learned counsel for the petitioner. No doubt there is no
limitation provided under the Industrial Disputes Act to
raise an industrial dispute but can it be said that it can
be raised at any time and that too without any
explanation? Is a workman at a better footing or at a
higher pedestal than a civil servant or an employee of
any other organization? If the services of an employee
of the latter category are dispensed with, they are
required to challenge the same in the Civil Court within
a period of three years. Even for writ petition, the
Supreme Court has observed that three years is a
reasonable period within which the aggrieved party
must approach to challenge termination as that is the
period for filing a civil suit. According to us, the
workman cannot be allowed to approach the Labour
Court after more than three years of the termination of
service. We find support from the authorities relied
upon by the learned counsel for the petitioner."
16. In Ram Kishan Vs. The Secretary Labour and Anr. 2007 LLR 65
Del, it was observed:
"9. The claim of the petitioner should also have been
ID No. 1467/2004/1999
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dismissed by the Labour Court on the ground of delay
and latches. The petitioner resigned in January 1984.
He raised industrial dispute after 15 years. No dispute
survives with the lapse of such a long time. If the
petitioner was aggrieved and had a case that he was
retrenched in January 1984, he should have
approached the appropriate government for referring
the dispute in 1984 itself or within a reasonable time.
There is no explanation given by the petitioner as to
why he approached the appropriate government after
15 years. Although the provisions of Limitation Act
does not apply in case of industrial dispute but that
does not give a license to anybody to keep sleeping
over the matter and raise a dispute after any number of
years. A stale dispute cannot be considered as an
industrial dispute. Supreme Court in the case of
Nedungadi Bank Limited v. K.P. Madhavankutty and
Ors. , 2000 (1) SLR 636, has held:
"Law does not prescribe any time limit for the
appropriate government to exercise its powers
under section 10 of the Act: It is not that this
power can be exercised at any point of time
and to revive matters which had since been
settled. Power is to be exercised reasonably
and in a rational manner. There appears to us
to be -no rational basis on which the Central
Government has exercised powers in this case
after lapse of about seven years of order
dismissing the respondent from service. At the
time reference, was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale `could not be the subject matter of reference under section 10 of the Act. As to when a dispute can ID No. 1467/2004/1999 11 be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent."
17. In Satbir Singh Vs Management of Suprintendent Engineer & Others 138 (2007), DLT 528, our Hon'ble High Court has after quoting the decisions of Hon'ble Supreme Court in Nedungadi Bank Ltd. Vs K.P. Madhavankutty & Others I (2000) SLT 544=2000 (2) SCC 455, S.M. Nilajkar & Others Vs Telecom District Manager, Karnatka III (2003) SLT 22=2003 (4) SCC 27 and also an earlier decision of our High Court in Dharambir Vs State of NCT of Delhi 2000 VII AD (Delhi) 1145 , has made the following observations:-
ID No. 1467/2004/1999 12 "My brother Judge A. K. Sikri in the above judgment Dharambir's Case (Supra) has also very elaborately dealt with the issue of delay in the said judgment and has held that where the matter raised by the workman is belated, the same must form a relevant part for refusing reference and the decision of the Government refusing to make a reference on the ground of inordinate and unexplained delay on the part of the workman was held as just and proper.
"In the present facts and circumstances of the case, there is no justification or explanation as to what prevented the petitioner to raise an industrial dispute against his alleged termination which admittedly took place on 28.4.1982 and the interview call which he had received in the year 1988 cannot be considered to be conferring any better claim on the petitioner for making the interview letter as a base for not raising an industrial dispute from the period 1982 till 1988. Even though from 1988 till 1995, the petitioner again slept over his rights and even if he has exchanged some correspondence cannot be considered to be a good ground for condoning delay."
18. In view of the above the workman is not entitled to any relief against the management. The issue No.3 is therefore decided in favour of management and against the workman.
ID No. 1467/2004/1999
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ISSUE NO. 4 RELIEF
19. In the light of my findings on the above issues the workman is not entitled to any relief against the management in terms of reference. The reference is answered accordingly. The copies of the award be sent to learned Secretary (Labour), Government of National Capital Territory of Delhi. The award be also sent to the server(www.delhicourts.nic.in). The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON THIS 08th DAY OF OCTOBER 2007. (S.K.SARVARIA) PRESIDING OFFICER LABOUR COURT NO.XII, KARKARDOOMA COURTS, DELHI.