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2017 DIGILAW 1254 (RAJ)

Radhey Shyam Sharma v. Judge, Labour Court

2017-05-16

DINESH MEHTA

body2017
JUDGMENT Dinesh Mehta, J. - The petitioner has approached this Court, invoking supervisory jurisdiction under Article 227 of the Constitution of India, laying challenge to the judgment and award dated 12.9.2017 passed by the Industrial Tribunal and Labour Court, Jodhpur (hereinafter referred to as the ''Labour Court'') in Industrial Dispute No. 113/2007; 2. While deciding the said reference, the Labour Court despite finding the termination of the employee/petitioner to be invalid, held the petitioner, not entitled to any relief on account of delay in taking up the remedies. 3. The facts in a nut shell, leading to filing of the present writ petition are that the petitioner was appointed with the respondent No. 2, Birla White Cement, Khariya Khangar, Tehsil Bhopalgarh, District, Jodhpur, on 01.01.1992, as a Machine Operator on daily wages of Rs. 50/-. It is the case of the petitioner that his services had been brought to an end by an oral order on 26.12.1996, by the respondent employer. 4. Pursuant to his termination, the petitioner approached the labour Commissioner on 05.2.2004, who took up conciliation proceedings, but the same could not bear positive results. The Labour Commissioner thus, sent his failure report dated 17.10.2016, in furtherance whereof a reference was made by the appropriate Government, vide notification dated 06.3.2007 for adjudication of the dispute. The learned Labour Court after dealing with the pleadings of the parties and appreciating the evidence, came to the conclusion that petitioner''s termination with effect from 26.12.1996 was illegal, however because of the inordinate delay in raising the dispute and taking up appropriate remedies, held that the petitioner-employee is not entitled to any relief, while observing as under:- 5. Impugning the above order dated 12.9.2013, the petitioner has preferred the present writ petition on 30.3.2017. Learned counsel for the petitioner, assailing the impugned order submitted that the Labour Court has committed a serious error of law, in rejecting petitioner''s claim and non suiting the petitioner simply on the ground of delay. 6. Learned counsel for the petitioner submitted that the approach of the court below has been very narrow and the labour court ought to have applied justice oriented approach, to serve the ends of justice, qua a low paid labourer. 7. I have perused the order impugned and heard the arguments of the learned counsel for the petitioner. 8. 6. Learned counsel for the petitioner submitted that the approach of the court below has been very narrow and the labour court ought to have applied justice oriented approach, to serve the ends of justice, qua a low paid labourer. 7. I have perused the order impugned and heard the arguments of the learned counsel for the petitioner. 8. The learned court below has given cogent reasons for non suiting the petitioner on the ground of delay, in as much as the petitioner had approached the Labour Commissioner only in the year 2004, raising his grievance against the oral termination, which had taken place in February, 1996. 9. This Court does not find any illegality or infirmity in the impugned order, more particularly looking at the conduct of the petitioner, who was not only sleeping over his rights before approaching the labour court, but also has come to this Court, at his leisure. It is to be noticed that the petitioner woke up from his slumber after 3 1 /2 years, in laying challenge to rejection of his rights by the labour court, vide order dated 12.9.2013. Petitioner''s state of being in hibernation for 3 and a half years, prior to coming to this Court, shows that he is not at all vigilant or serious about his rights and that his conduct itself renders him, ineligible for claiming any relief. 10. On the question of delay, posed by the Court, learned counsel for the petitioner submitted that at the time of drafting the writ petition, the petitioner had instructed him that he was not informed about passing of the order, as his address/place of residence got changed. 11. The submission made by learned counsel for the petitioner does not find support from the material available on record, in as much as, in the memo of writ petition, the address of the petitioner has been mentioned as ''Khariya Khangar, Tehsil Bhopalgarh, District Jodhpur'', which address was also given by the petitioner in his claim petition before the labour court. Even in the memo of petition, the petitioner has not mentioned the changed address. The reason for delay, so stated by the learned counsel for the petitioner is a lame excuse and not substantiated by any material. 12. The writ petition suffers from the vice of delay and not maintainable. Even in the memo of petition, the petitioner has not mentioned the changed address. The reason for delay, so stated by the learned counsel for the petitioner is a lame excuse and not substantiated by any material. 12. The writ petition suffers from the vice of delay and not maintainable. A reference in this regard, can be made of a recent judgment of Hon''ble Supreme Court, in the case of State of J & K vs. R.K. Zalpuri, reported in AIR 2016 SC 3006 , wherein following observations has been made by the Apex Court :- 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 form 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 to be adjudicated unless noninterference would cause grave injustice. The present case, need less to emphasis, 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. 13. This Court is reminded of the observation made by Hon''ble the Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board and Ors. vs. T.T. Murali Babu AIR 2014 SC 1141 as under: A court is not expected to give indulgence to such indolent persons-who compete with ''Kumbhakarna'' or for that matter ''Rip Van Winkle''. 13. This Court is reminded of the observation made by Hon''ble the Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board and Ors. vs. T.T. Murali Babu AIR 2014 SC 1141 as under: A court is not expected to give indulgence to such indolent persons-who compete with ''Kumbhakarna'' or for that matter ''Rip Van Winkle''. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold. 14. In view of the extant facts and law, this Court has no hesitation in holding that the petitioner has adopted a lacklustre attitude, in taking up his legal remedies. "The delay defeats the remedies, if not the rights." 15. The instant writ petition which suffers from inordinate delay and laches is thus dismissed at threshold.