Rajasthan High Court - Jaipur
Kanji vs State Of Raj & Ors on 4 February, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1.SB Civil Writ Petition No. 4311/2008 Bhanwar Lal Meghwal vs State of Rajasthan & ors 2.SB Civil Writ Petition No. 3814/2005 Abdul Raseed Vs State of Rajasthan & ors 3.SB Civil Writ Petition No. 6340/2005 Kanji Vs State of Rajasthan & ors 4.SB Civil Writ Petition No. 11124/2010 Ramdev Meghwal Vs State of Rajasthan & ors 5.SB Civil Writ Petition No. 11125/2010 Chheetar Meghwal Vs State of Rajasthan & or 6.SB Civil Writ Petition No. 11126/2010 Prakash Gurjar Vs State of Rajasthan & ors 7.SB Civil Writ Petition No. 11127/2010 Nand Kishore Meghwal Vs State of Rajasthan & ors 8.SB Civil Writ Petition No. 11128/2010 Harzi Meghwal Vs State of Rajasthan & ors 9.SB Civil Writ Petition No. 11129/2010 Durgalal Gurjar Vs State of Rajasthan & ors 10.SB Civil Writ Petition No. 11130/2010 Danna Lal Mali Vs State of Rajasthan & ors 11.SB Civil Writ Petition No.11131/2010 Jagdish Gurjar Vs State of Rajasthan & ors 12.SB Civil Writ Petition No. 11132/2010 Mangilal Meghwal Vs State of Rajasthan & ors 13.SB Civil Writ Petition No. 11133/2010 Pokhar Meghwal Vs State of Rajasthan & ors 14.SB Civil Writ Petition No. 7551/2005 Madhu Sudan Sharma Vs State of Rajasthan & ors 15.SB Civil Writ Petition No. 6244/2008 Girraj Sharma Vs State of Rajasthan & ors 4.2.2011 HON'BLE MR JUSTICE MN BHANDARI Mr KC Sharma for petitioner Mr SD Khaspuria, Addl GC for respondents BY THE COURT:
Since on similar set of fact same relief has been prayed, all the aforesaid writ petition are being decided by this common order.
All the writ petitions have been filed against the order refusing reference of the dispute for its adjudication by the appropriate government as provided under the Industrial Disputes Act, 1947 (for short 'the Act'). The refusal is precisely on the ground of delay in raising the dispute.
Learned counsel for petitioners submits that a reference cannot be denied based on delay in raising the dispute as no limitation has been provided under the Act. In fact, the appropriate government is not having adjudicatory powers so as to deny reference by adjudicating any issue which can be adjudicated by the Labour Court or trial court. Reliance has been placed on the judgment of the Hon'ble Apex Court in the case of Karan Singh Vs Executive Engineer, Haryana State Marketing Board reported in 2008(I) Labour Law Journal page 305[SC].
A further reference of the judgment in the case of Ajaib Singh Vs The Sirhind Co-operative Marketing-cum-Processing Services Society Ltd & anr reported in (AIR 1999 SC 1351) has been made.
Learned counsel for respondents, on the other hand, submits that delay in raising the dispute is fatal in view of judgment of the Hon'ble Apex Court in the case of Assistant Engineer, CAD, Kota Vs Dhan Kumwar reported in 2006{III}-ILJ 60 SC.
I have considered rival submissions of learned counsel for parties and scanned the matter carefully.
The issue is as to whether a dispute can be raised after inordinate delay. The issue aforesaid was considered by the Hon'ble Apex Court in great detail while deciding the matter in the case of Assistant Engineer, CAD, Kota (supra). Therein, raising of dispute after inordinate delay was held to be fatal. It was further held that a dispute which is stale could not be subject matter of reference under section 10 of the Act. Paras 7 and 8 of the aforesaid judgment is quoted thus -
7.However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as follows:
"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 S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as follows: (at para 17) "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 M/s. Shalimar Works Ltd. v. Their Workmen (supra) (AIR 1959 SC 1217), 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 therefor. 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 reemployment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their Workmen (supra) (AIR 1959 SC 1217), In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others (supra) AIR 2000 SC 839, a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others v. Union of India and others (supra) (1993 AIR SCW 2214, 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&T Department v. Union of India (supra) (AIR 1987 SC 2342), 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."
Perusal of aforesaid show that dealing with the case of Nedungadi Bank Ltd Vs KP Madhavankutty reported in AIR 2000 SC 839, the court came to the conclusion that section 10 of the Act does not provide any time limit for the workman to exercise its power but it cannot be exercised at any point of time. The power has to be exercised reasonably and in a rational manner. The court came to the conclusion that delay in raising the dispute is fatal for seeking reference and it was finally held that dispute which is stale could not be the subject matter of reference under section 10 of the Act.
Even Division Bench of this court in the case of Madan Singh Vs State of Rajasthan & ors reported in 2006-IV-ILJ(Suppl) Rajasthan 641 set aside the award passed by the Labour Court where the dispute was raised after a period of twelve years.
As against aforesaid, learned counsel for petitioners made reference of the judgments in the case of Punjab National Bank Vs Anil Kumar Jain (2010[125]FLR 873). Perusal of the aforesaid judgment shows that delay by the workman in raising the dispute was found to be justified hence no interference was made. Reference of the judgment in the case of Karan Singh Vs Executive Engineer, Haryana State Marketing Board (2008-I-ILJ-SC 305 has been made. The issue therein was that once reference is made, Labour Court cannot decline reference to be invalid on the ground of delay. The issue therein was not as to whether reference can be sought after delay of many years. So far as case of Ajaib Singh (supra) is concerned, the issue as to whether relief can be denied on the ground of delay more so when no plea regarding delay was taken.
None of the judgments referred by learned counsel for petitioners provide assistance to the effect that a reference cannot be denied on the ground of delay, whereas, judgment in the case of Assistant Engineer, CAD, Kota (supra) covers the controversy involved herein, more specifically, in reference to the judgment in the case of Nedungadi Bank Ltd (supra).
Learned counsel for petitioners have raised a plea that in similar circumstances reference has been made.
I have considered the aforesaid argument also. Taking note of legal proposition discussed above, delay in raising the dispute is now held to be fatal. A stale claim cannot be allowed to be raised for seeking reference. In the light of aforesaid, I do not find that a case is made out to interfere in the impugned orders where the dispute has been raised after inordinate delay of 20 to 25 years without any justification.
The issue of discrimination cannot be accepted inasmuch as the law having been settled to the effect that delay is fatal in raising the dispute, any illegality committed by the respondents cannot be sought to be perpetuated. In my opinion, reference of the stale case cannot be claimed. Accordingly, I find no merit in the writ petitions. Same are dismissed.
(MN Bhandari) J.
bnsharma