Delhi High Court
Satbir Singh vs Management Of Suptd. Engineer And Ors. on 1 March, 2007
Equivalent citations: 138(2007)DLT528, (2007)2LLJ1076DEL
Author: Kailash Gambhir
Bench: Kailash Gambhir
JUDGMENT Kailash Gambhir, J.
1. Aggrieved with the order passed by the Presiding Officer, Industrial Tribunal cum Labour Court-II, the petitioner has preferred the present writ petition challenging the award dated 03.02.2004. The brief facts which are not in dispute inter alia are that the petitioner was engaged as a Beldar and posted under Assistant Engineer, Meerut Central Sub Division, CPWD, Meerut under the control of respondent No. 3 where he worked continuously up to 28.4.1982. As per the petitioner, he had completed 112 days in 1979, 277 days in 1980 and 257 days in 1981. The petitioner further stated that his services were terminated on 28.04.1982 without any notice and compensation as he was verbally told by the respondent that due to non-availability of post, his services were not required any more and as and when new post would be available, he would be considered for appointment on permanent basis. The petitioner further stated that he kept on approaching the office of the respondent and also made a representation dated 12.5.1983 for his re-employment on permanent basis but he was not given the employment. The petitioner further stated that on 23.2.1988, he was called for interview for the post of Beldar in the pay scale of Rs. 750-940 and a letter to this effect was given by respondent No. 4 to the petitioner.
2. He could not appear in the interview as the letter for the interview was handed over to him only on 24.2.1988. Vide letter dated 11.03.1988, the Senior Labour Officer made a request to respondent No. 1 to take interview of the petitioner on any other date but the request of the Senior Labour Officer was not entertained by respondent No. 1. The petitioner made a representation to respondent No. 1 vide his letter dated 14.03.1988 seeking re-employment on permanent basis and thereafter he had been constantly writing to respondent No. 1 in this regard. The petitioner vide his representation dated 13.06.1995 raised an industrial dispute under Section 2(A) of the I.D. Act, 1947 against his illegal termination with effect from 28.04.1982 and on failure of conciliation proceedings, the appropriate Government made a reference on 25.12.1997 to the Labour Court for adjudication of the dispute on merits. The statement of claim was filed by the petitioner agitating his claim of reinstatement against his alleged illegal termination on 28.04.1982 by respondent No. 1. Per contra, the respondent in the written statement seriously disputed the claim of the petitioner. The defense as taken by the respondent in the written statement is that the petitioner was engaged as Beldar on purely temporary basis on muster roll in a project. The respondent has stated that on completion of the project, the services of the petitioner were not required and since no post was available after the completion of the project, therefore, there could not have been any question of reinstatement of the petitioner. The respondent also challenged the claim of the petitioner on the ground of delay and laches as the petitioner had raised dispute against his termination after a lapse of about 13 years. Such long delay on the part of the petitioner is itself evident of the fact that the petitioner knew very well that his employment came to an end in the project and that is the precise reason he did not seek any remedy or made any sort of complaint against respondent No. 1/Management, for such a long period before any of the labour authorities, as per the contention of the respondent.
3. I have heard counsel for the parties. It is not disputed that the petitioner had completed 240 days during his employment with respondent No. 1 and as per his own case, he was terminated from his service on 28.04.1982. It is also not in dispute that no compensation or mandatory notice was given to the petitioner by respondent No. 1 as per the mandate of Section 25(F) of the Industrial Disputes Act. The counsel for the petitioner has contended that once a workman completes 240 days in any calendar year preceding his termination then without following the procedure as envisaged under Section 25(F) of I.D. Act by the employer, the workman could not have been retrenched. He also submitted that the employment of the petitioner was not in any project but was a continuous employment and because of this reason alone, he was called for an interview which was held by respondent No. 1 on 23.2.1988.
4. On delay, the argument of the counsel for the petitioner is that there was no delay on the part of the petitioner as he had been approaching respondent No. 1 against his illegal termination. In the year 1988, the petitioner was called for an interview and later on he made various representations right from the year 1988 till 1993 where after on 13.6.1995, the industrial dispute was raised by the petitioner. The contention of counsel for the petitioner is that there has been only a delay of 6 1/2 years during which he kept on making representations and even if total delay of 12 1/2 years is taken into consideration in raising the industrial dispute still the claim of the petitioner could not be treated as time barred. The petitioner relies upon the following judgments where the Supreme Court has leaned in favor of the workman and has granted one or the other relief even though the dispute raised by the workman was belated one. Counsel for the petitioner placed reliance on the following judgments:
1. Ajaib Singh v. Sirhind Co-op. Marketing-cum-processing Service Society Ltd. and Anr. 1999 ILLJ, 1260.
2. Mahavir Singh v. U.P. State Electricity Board and Ors. 1999-D-LLJ-482
3. Jain Bhagwan v. Management of Ambala Central Co-operative Bank Ltd. and Anr. 1983, 4 SCC, 611.
4. U.P. Electricity Board v. Rajesh Kumar 2004 (1) SCALE 13 (SC)
5. HMT Limited v. Labour Court Irankulam and Ors. (1994) 2 SCC 38.
5. The counsel for the petitioner thus contends that the delay cannot be held to be fatal as per these legal pronouncements and also because of the fact that there is no prescribed period of limitation for raising the industrial dispute either under the Limitation Act or under the Industrial Disputes Act and the I.D. Act being beneficial legislation should be construed in a manner so as to provide succor to the weaker section of the society.
6. On the other hand, Ms. Richa Kapoor, counsel for respondent No. 1 submitted that the petitioner had worked in a project and on the completion of the project, his services were no more required and this fact of completion of the project was fully known to the petitioner and due to this reason he never raised the industrial dispute before 13.6.1995. Counsel for the petitioner also submitted that during his cross-examination, the petitioner has fully accepted that he never made complaint to any of the authorities against the alleged action of respondent No. 1/Management. He also never sought his re-employment after his termination and he also could not place on record to show that any of his juniors were regularized after the date of his termination. Counsel for the respondent also submitted that Clause (bb) was inserted in Section 2(oo) of the I.D. Act on 18.8.1984, and, therefore, the employment of the petitioner in a project is fully covered under the said exception carved out in Section 2(oo) of I.D. Act and, therefore, the petitioner cannot claim any protection under Section 25F of the I.D. Act against his alleged retrenchment. On delay, counsel for the respondent has very strongly urged that the person who himself slept for such a long period of 13 years is not entitled to claim any relief, even under the I.D. Act and the appropriate Government also could not have made any reference under Section 10 after such a long gap of 13 years period. Counsel for the respondent has relied upon 2000 VII AD (Delhi) 1145, Dharambir v. State of NCT of Delhi and , Haryana State Cooperative Land Development v. Neelam in support of her argument on delay and laches.
7. While exercising power of judicial review under Article 226 of the Constitution of India, this Court must be satisifed that there is either non-application of mind by the Tribunal or there is perversity and irrationality in the order passed by the Tribunal or any material fact or piece of evidence has been ignored by the Tribunal while passing an award or there is any jurisdictional error in entertaining the dispute. No party can be allowed to build a better or strong case on the basis of any fresh pleadings or fresh evidence in the Writ Court unless there are very strong and exceptional reasons for the same. It is his own case of the petitioner that he had worked with respondent No. 1 for 112 days in 1979, 277 days in 1980 and 257 days in 1981 and his services were finally terminated on 28.04.1982 and he had approached the Labour Court only on 13.6.1995 so as to raise the industrial dispute. There is thus admitted gap of more than 13 years in raising an industrial dispute. I do not find any force in the arguments of counsel for the petitioner that the period of delay should be counted for 6 1/2 years as in the year 1988, the petitioner had received an interview call from respondent No. 1. Even it is assumed that interview call was sent to the petitioner in which he could not appear, such an interview call could not have given any cause of action to the petitioner to raise an industrial dispute against respondent No. 1/Management. The cause of action for raising an industrial dispute even as per own case of the petitioner is the date of his termination which is 28.04.1982 and admittedly no steps or complaint was made by the petitioner against his termination and no industrial dispute was raised by him although the petitioner now claims that he made certain representations to respondent No. 1 and the Labour Office during this long gap of period. Even in the letter dated 12.5.1983 sent by the petitioner to the respondent no grievance of illegal termination has been made by the petitoner. This is merely a fresh application for the post of Beldar on the basis of the past service. The other letters which are placed on record by the petitioner are also to the same effect of seeking fresh employment. The petitioner thus never raised any issue regarding his alleged termination and it is only quite at late stage in the year 1995 he sought to challenge the alleged act of illegal termination. It is not in dispute that no limitation is prescribed either under the Industrial Disputes Act or under the Limitation Act for raising industrial dispute and the Hon'ble Supreme Court in its various judgments cited by counsel for the petitioner has been considerate in condoning even long delays on the part of the workman in raising an industrial dispute but rationale of all these judgments is that every case has to be taken on its facts and circumstances and it is nowhere held that howsoever an inordinate and unexplained delay may be on the part of the workman, the delay has to be condoned. A judgment , Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors., the Supreme Court has held that the power to condone the limitation cannot be exercised to condone any period of limitation for reviving matter which had since been settled. It would be appropriate to reproduce the following observation of the Supreme Court:
6. 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 heel 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 a lapse of about seven years of the 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 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 an industrial dispute was ex-facie bad and incompetent.
8. In another judgment , S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, the Supreme Court after the decision of the High Court for having given relief to the workman on the ground of delay has observed as under:
17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Their Workmen (supra) , that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in Shalimar Works Limited v. Their Workmen (supra) . In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (supra) , a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and Ors. v. Union of India and Ors. (supra) 1993 AIR SCW 2214 (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees under P and T Department v. Union of India (supra), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay.
9. My brother Judge A.K. Sikri in the above judgment Dharambir's case (supra) has also very elaborately dealt 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.
10. 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 28.04.1982 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 then as per the settled law merely writing some letters and exchanging some correspondence cannot be considered to be a good ground for condoning delay.
11. I do not find any infirmity in the order passed by the Tribunal in denying relief to the petitioner workman on the ground of such long and inordinate delay.
12. The other issue of the petitioner being in project employment for a period of 3 years or not needs no consideration as the case of the petitioner being rejected on the ground of delay and laches. Even otherwise there is no document placed by the parties on record as to show on what project the petitioner was working, what was the duration of the project and what were the terms and conditions of the employment of the petitioner in the said project. The petitioner was merely a temporary employee or the muster roll employee under the respondent No. 1 but since he did not take any steps against his alleged termination, therefore, it is very difficult to ascertain at this stage the duration of employment of the petitioner particularly when no evidence by any of the parties has been led regarding the project employment. In his cross-examination, the petitioner has categorically stated that he never made any complaint to the authorities against the management action after his termination and he had never approached the authorities for his re-employment after his termination. He has also stated in his cross-examination that he does not remember that any copy of the representation given to the management claiming reinstatement to his service was filed in the case or not. In view of such deposition of the petitioner himself in his cross-examination, no reliance at this stage can be placed on various letters allegedly made complaining about his alleged termination.
13. I, accordingly do not find any force in the submissions of the counsel for the petitioner.
14. The present petition is devoid of any merit and the same is hereby dismissed. 15. Rule discharged.