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Uttarakhand High Court · body

2016 DIGILAW 563 (UTT)

EXECUTIVE ENGINEER MANERI BHALI v. ATAR SINGH

2016-09-07

V.K.BIST

body2016
JUDGMENT Hon’ble V.K. Bist, J. (Oral) 1. By means of this writ petition, petitioners/State has sought a writ in the nature of certiorari quashing the Award dated 26.8.2011 passed by Labour Court, Haridwar (Annexure No.1 to the writ petition), whereby the Labour Court held the termination of workman/respondent as illegal and directed that he shall be treated in service throughout and is entitled to service related benefits after the date of his termination. 2. The State Government referred the following question to the Labour Court for adjudication: “Whether the termination of the above noted Workman by the Employers was justified or/and legal. If not, the Workman is entitled to get what relief/benefits.” 3. The case put up by the workman before the Labour Court was that he was employed as a daily wager by the appellant on 01.02.1983 and he worked upto 01.07.1992. Thereafter, on 01.07.1992, the employer stopped him from working and did not permit him to attend duties. There was no enquiry pending against him. He had worked for more than 240 days in a calendar year and the employer has not followed the provisions of Section 6(N) of the Act and Rule 42 of the U.P. Industrial Disputes Rules, 1957. 4. On the other hand, the case of the employer/petitioner (as mentioned in the impugned Award as no copy of the written statement of the employer has been filed with the petition) is that the workman was engaged on casual basis on the ground of exigency. After 1992, the workman resigned from the service. It was further the case of the petitioner that the department is not an Industry and it is not covered under the U.P. Industrial Disputes Act. 5. The learned Labour Court accepted the version of the workman that employer deliberately avoided to file copies of muster rolls from 01.02.1983 to 30.06.1992 and drew adverse inference against the employer. The Labour Court observed that no documentary evidence has been filed by the employer and held that the workman has worked for more than 240 days in a year. The Labour Court answered the question in positive and directed to treat the workman in service. 6. I have learned Standing Counsel for the State and have gone through the writ petition and its annexure. 7. In this case I find that there is delay of more than five years. The Labour Court answered the question in positive and directed to treat the workman in service. 6. I have learned Standing Counsel for the State and have gone through the writ petition and its annexure. 7. In this case I find that there is delay of more than five years. Therefore, first of all, I am dealing the question of delay. 8. In State of Jammu and Kashmir v. R.K. Zalpuri AIR 2016 Supreme Court 3006, Hon’ble Apex Court has held that State claims are not be adjudicated unless non-interference would cause grave injustice. Paragraphs 26, 27 and 28 of the judgment are reproduced below: “26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. 27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” – “thanks to God”. 28. Another aspect needs to be stated. A writ Court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not be adjudicated unless non-interference would cause graveinjustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present. 9. The Hon’ble Apex Court in the matter of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy reported in (2013) 12 Supreme Court Cases 649, has summarized principles applicable to an application for condonation of delay and has also issued guidelines in paragraphs 21 and 22, which are reproduced hereunder:- “21. 9. The Hon’ble Apex Court in the matter of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy reported in (2013) 12 Supreme Court Cases 649, has summarized principles applicable to an application for condonation of delay and has also issued guidelines in paragraphs 21 and 22, which are reproduced hereunder:- “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1.(i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2.(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3.(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6.(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9.(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10.(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11.(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - 22.1.(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2.(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3.(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4.(d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.” 10. I find that this is not a case where Award has been passed ex-parte. In fact Sri P.K. Birendra Bhandari, Sri Surendra Singh and Sri M.P. Jakhmola, appeared before the Labour Court as representatives of the employer. Award was duly published. Therefore, it cannot be said that Award was not in the knowledge of the petitioner. It was the duty of the employer to comply the Award. In fact Sri P.K. Birendra Bhandari, Sri Surendra Singh and Sri M.P. Jakhmola, appeared before the Labour Court as representatives of the employer. Award was duly published. Therefore, it cannot be said that Award was not in the knowledge of the petitioner. It was the duty of the employer to comply the Award. However, in the instant case, the petitioner neither complied with the Award nor availed any remedy against the same for long time. Now, after a period of 5 years, they have approached this Court. There is long delay of five years in filing the writ petition. Delay has not been properly explained. Reason for delay is given in paragraph 19 of the writ petition, which is as under:- “19. … That the copy of the award dated 26.8.2011 was send to the office of Chinyali Saur Uttarkashi and therefore the present office was not having the knowledge of the award. Thereafter, the petitioner obtained departmental permission to challenge the award and after getting the permission the petitioner preferred the present writ petition without delay.” The above ground cannot at all be said to be a valid ground. Award was passed by the Labour Court on 26.08.2011. The petitioner has not mentioned the date when Award was published and when the copy of the same was received by its representatives. The date when permission was obtained has also not been mentioned in the writ petition. In such circumstances, it is not possible for the Court to ignore huge delay of 5 years. When such petition is filed after a delay, the petitioner is supposed to give details viz. when the copy of the Award/judgment was received, when the same was sent to the petitioner/department, what further action was taken, what was the reason for delay, etc. Delay, whether it is short or long, must be explained in proper manner. Petitioner is duty bound to explain the reasons for delay. In this case, delay is not short but it is inordinate delay of five years. In fact, delay has not been explained at all. Petitioner slept over the matter for five years. It is not a case where liberal view can be taken for ignoring long delay. It is also not a case where dismissal of the writ petition on the ground of delay would cause grave injustice to the petitioner. 11. In fact, delay has not been explained at all. Petitioner slept over the matter for five years. It is not a case where liberal view can be taken for ignoring long delay. It is also not a case where dismissal of the writ petition on the ground of delay would cause grave injustice to the petitioner. 11. Consequently, the writ petition is dismissed on the ground of laches.