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2010 DIGILAW 1966 (PNJ)

Ali Salam v. State Of Haryana

2010-07-07

RANJIT SINGH

body2010
Judgment Ranjit Singh, J. 1. Petitioner, an employee of Housing Board, Haryana, has filed this writ petition to impugn the order dated 6.2.2009, whereby the Government has declined to make reference of the industrial dispute to the Labour Court for adjudication. 2. The petitioner had joined the services of the Housing Board on 1.10.1995 on daily wages as Motor Mate. On 30.9.1996, the services of the petitioner were terminated. The petitioner claimed that he had completed 240 days service and his services were terminated without complying with the mandatory provisions of the Industrial Disputes Act. 3. The petitioner had remained quiet for considerably long period and sought reference of the dispute by serving a demand notice on 1.8.2005, nearly after a lapse of 9 years. He, however, alleged that his services were terminated in violation of Section 25-F, 25-G and 25-H of the Industrial Disputes Act. The respondent- Government has rejected this reference on 15.2.2006 on the ground that the demand was raised after 9 years of the termination. The petitioner thereafter seems to have again faulted. Instead of taking prompt proper action, the petitioner chose to file appeal against this order before respondent No. 1. In this appeal, the petitioner has mentioned that he had been making representation to respondent No. 2 from 1996 to January 2005 but was not allowed to join duties and so had raised a demand notice on 1.8.2005. Having kept quiet for over two years, the petitioner again served a legal notice on 25.11.2008, which respondent No. 1 rejected on 6.2.2009. The petitioner has filed the present writ petition on 25.8.2009. 4. The submission is that delay is no ground to decline the reference in terms of the law laid down by the Honble Supreme Court and, thus, the action of the respondent-State to reject the reference would be illegal as it would amount to deciding the dispute by the Government, which is beyond the jurisdiction of the Government. The petitioner had moved an application, seeking amendment of the writ petition on the ground that he, inadvertently, forgot to make a prayer for quashing of orders dated 15.2.2006 and 9.8.2006 and, thus, has filed the amended writ petition later. 5. In response to a notice, a reply has been filed to the amended as well as unamended writ petition. The petitioner had moved an application, seeking amendment of the writ petition on the ground that he, inadvertently, forgot to make a prayer for quashing of orders dated 15.2.2006 and 9.8.2006 and, thus, has filed the amended writ petition later. 5. In response to a notice, a reply has been filed to the amended as well as unamended writ petition. The amended writ petition is objected on the ground that no permission was granted to the petitioner to amend the writ petition and, thus, the same deserves to be dismissed on this ground. 6. This apart, the stand in the reply is that the petitioner had worked at the Construction Division with the respondent-Board from 1.10.1995 to 31.12.1995 and then from 1.2.1996 to 30.4.1996 as Chowkidar. As per the reply, the petitioner thereafter had left the job of his own volition and had never approached the respondent Board for any work. It is stated that the petitioner then suddenly woke from his slumber and had served a demand notice on 1.8.2005. The answering respondent, thus, would state that the Government was fully justified in rejecting the claim on the ground of delay and latches as per the law laid down in the case of Nedungadi Bank Ltd. v. K.P.Madhavankutty, AIR 2005 SC 839. The support is also sought from number of other judgements like Management of M/s Indian Iron and Steel Ltd. v. Prahlad Singh, 2001(1) S.C.T. 101 : AIR 2001 SC 69, Haryana Co-operative Society Bank v. Neelam, 2005(2) S.C.T. 113 : AIR 2005 SC 1843, Assistant Executive Engineer, Karnataka v. Shivalinga, 2002 (10) SCC 167 and Rattan Chandra Sammanta v. Union of India, 1993(3) S.C.T. 511 : AIR 1993 SC 2276. 7. I have heard the learned counsel for the parties. 8. Counsel for the petitioner submits that while rejecting the claim, the Government has clearly mentioned that the dispute is rejected on the basis of delay and latches. As per the counsel, thus, the existence of a dispute is conceded. The counsel accordingly contends that once there was a dispute, the same was bound to be referred for adjudication to the Labour Court and the Government could competently reject the reference only if it was of the view that there was no dispute worth referring. In support of his submission, the counsel has made reference to the case of Sushil Kumar v. The Secretary (Labour), Govt. In support of his submission, the counsel has made reference to the case of Sushil Kumar v. The Secretary (Labour), Govt. of NCT, Delhi and another, 2008(1) S.C.T. 136 : 2008 (1) RSJ 414. The High Court in this case has held that refusal by an appropriate Government to refer industrial dispute for adjudication on the ground that the same was raised at a belated stage would amount to going into the merits of the matter and that the same would not be within the powers of the appropriate Government. It is further observed that the factum of delay, if any, is an issue, which is to be considered by the industrial adjudicator and not by the appropriate Government. It is further observed that such delay can be taken into consideration at the time of answering the reference. The counsel would then refer to Personal Manager, SBI & Anr. v. Krishna Grameena Bank Employees Union & Anr., 2008(1) S.C.T. 345 : 2008(1) R.A.J. 199 : 2008 (1) RSJ 688, where the Honble Supreme Court has observed that no formula of universal application can be laid down for deciding the reference on the ground of delay in seeking the same and that it would depend upon the facts of each individual case. 9. The counsel for the respondent, on the other hand, would also refer to number of judgments of the Honble Supreme Court. The counsel would mainly rely upon the case of Nedungadi Bank Ltd. (supra), which was relied upon by the Government while declining to refer the dispute for reference. In Nedungadi Bank Ltd. (supra), the Honble Supreme Court has observed that though the law does not prescribe any time limit for the appropriate Government to exercise power under Section 10 but the same has to be exercised reasonably and in a rational manner. It is held that if the demand notice is issued after a lapse of long time, the Government has to consider as to whether at that time some industrial dispute exists or is apprehended. As per the Court, the stale disputes can not be referred. The relevant observations in this regard are as under :- "Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act. As per the Court, the stale disputes can not be referred. The relevant observations in this regard are as under :- "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 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 that 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." 10. In the case of U.P. State Road Transport Corporation (Supra) and Personal Manager, SBI cases (Supra), it is observed that no formula of universal application can be laid down as to the limitation for making a reference under Section 10 of the Industrial Disputes Act. However, it needs to be observed that the reference can be made only within a reasonable time and belated claim are not to be entertained and referred by the appropriate Government. The Honble Supreme Court observed that after long time of of 4-5 years, the workman will loose the remedy under the Act and that the Court must decide the issue as to the justification of delay. The Honble Supreme Court observed that after long time of of 4-5 years, the workman will loose the remedy under the Act and that the Court must decide the issue as to the justification of delay. It is further held that it is for the workman to show that the dispute was raised within reasonable time and that he was not responsible for any delay. 11. In Haryana State Coop Land Dev Bank (Supra), delay of 7 years was held justified in declining the reference. Noticing the aim and object of the Industrial Disputes Act, which may be to impart social justice to the workman, it is held that this in itself would not mean that irrespective of the conduct of the workman, he can be automatically held entitled to a relief. Procedural laws like estoppel, waiver and acquiescence are equally held applicable to the industrial proceedings. As observed by the Honble Supreme Court, a person in certain situations may even be held to be bound by the doctrine of `Acceptance Sub Silentio. Thus, where a workman does not raise any industrial dispute questioning his termination within a reasonable time, the Courts or the Tribunals would be well within their jurisdiction to decline the relief. 12. In Mgt. of M/s Indian Oil and Steel Co. Ltd. (Supra), the Honble Supreme Court found that the High Court could not interference in the finding of fact recorded by the Tribunal on proper appreciation of evidence where the reference of the dispute sought after 13 years of termination was found stale and due to unexplained and inordinate delay, no relief was granted which was held justified. 13. A Division Bench of this Court in Mahabir alias Bhira v. State of Haryana and others, 2004(4) S.C.T. 229 : 2004 (4) RSJ 527, after making reference to number of cases has held that the Government is not bound to make reference of each and every claim irrespective of the fact that it was highly belated and stale, unless there is satisfactory explanation for a long delay. It is only where explanation is disputed on facts that it would be for the Labour Tribunal to adjudicate on it being correct and satisfactory but in the absence of any explanation of prolonged delay, the claim for reference could be rejected. It is only where explanation is disputed on facts that it would be for the Labour Tribunal to adjudicate on it being correct and satisfactory but in the absence of any explanation of prolonged delay, the claim for reference could be rejected. In Rohtash v. State of Haryana and others, 2002(4) S.C.T. 945, a Division Bench of this Court has held that the appropriate Government is not debarred from declining a reference on the ground that the same was patently stale or non-existent. Reference in this case was found to be stale on account of delay of 8 to 14 years and, thus, the decision of the government in declining the reference on the ground that the same was patently stale, was upheld. 14. From the ratio of law as would emerge from the number of judgments noticed above, it is clear that the Government has a power and jurisdiction to decline the reference if it is found to be stale. In other words, the delay in raising the dispute is a ground which can be taken into consideration by the Government while deciding the reference sought. 15. Long ago, the Honble Supreme Court considered this question in the case of Bombay Union of Journalists v. State of Bombay, AIR 1964 Supreme Court 1617 and State of Bombay v. K.P. Krishnan, AIR 1960 Supreme Court 1223. It was held by the Supreme Court that the Government may consider prima-facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. The plea that the appropriate Government is precluded from considering even the prima-facie the merits of the dispute while considering the same for making reference, was not accepted. Accordingly, the claims which were patently frivolous or were belated could be refused by the Government for reference. Thus, the reference about the belated dispute was held sufficient ground for declining the reference by the appropriate Government. 16. In Nedungadi Bank Ltd. (Supra), Mgt. of M/s Indian Iron and Steel Co. Ltd. (Supra) and U.P.State Road Transport Corporation (Supra), the rights and powers of the Government to decline reference on the ground of it being stale have been recognized and the submission that this issue must be decided by the industrial adjudicator as held in Sushil Kumars case (Supra), may not be acceptable. 17. of M/s Indian Iron and Steel Co. Ltd. (Supra) and U.P.State Road Transport Corporation (Supra), the rights and powers of the Government to decline reference on the ground of it being stale have been recognized and the submission that this issue must be decided by the industrial adjudicator as held in Sushil Kumars case (Supra), may not be acceptable. 17. The facts in the present case would show that the petitioner states to have been terminated on 30.9.1996. While justifying the delay in raising the demand notice, the petitioner makes reference to the representation that he filed before the management. As per the petitioner, these representations were made on 3.5.1997, 7.12.1997, 8.6.1998, 3.11.1998, 2.12.1999,8.6.2000, 1.5.2001, 6.7.2002, 5.3.2003, 4.8.2004 and 4.1.2005. No such representations have been placed on record. Even otherwise, this would not be a valid justification on the part of the petitioner to raise a demand notice after a lapse of nine years. The petitioner is also found lacking in taking prompt action once the Government had declined to refer the dispute for adjudication on 9.8.2006. The petitioner has kept quiet for over two years and served a legal notice to the Government only on 25.11.2008. The legal notice was rejected on 6.2.2009. Still, the petitioner waited for almost six months to file the present writ petition. There is no explanation forthcoming on the part of the petitioner to keep quiet from August 2006 to till he served a legal notice. Besides, the petitioner could not offer any explanation for delayed approach on his part, for which the counsel was even given opportunity, at the time of arguments. In view of the law laid down by the Honble Supreme Court in large number of cases, where reference was declined, when demand notice was issued after lapse of long time, no case apparently is made out for interfering in the impugned order. Nine years is too long a period and there being no justification for the delay, the impugned order can not justifiably be interfered with. It was for the petitioner to show that the dispute was raised within a reasonable time and that he was not responsible for the delay, for which he is really found wanting. The procedural laws of estoppel, waiver, acquiescence would apply to the case, even though no limitation may have been prescribed. It was for the petitioner to show that the dispute was raised within a reasonable time and that he was not responsible for the delay, for which he is really found wanting. The procedural laws of estoppel, waiver, acquiescence would apply to the case, even though no limitation may have been prescribed. Since there is long and unexplained inordinate delay on the part of the petitioner to seek reference and there is no satisfactory explanation forthcoming, the respondent-Government is justified in declining the reference. There are no disputed questions of facts involved in regard to the delay in seeking the reference, for which there would be any need to make reference of dispute to the labour adjudicatory authority. 18. There is, thus, no merit in the plea and the writ petition is, therefore, dismissed. Petition dismissed.