Shri Ajit Singh vs Govt. Of Nctd And Ors.
2002 Latest Caselaw 759 Del

JUDGMENT

Manmohan Sarin, J.

Rule.

(1) Learned counsel for the petitioner at the outset states that the prayer made by him in the petition be treated as for a direction for issuance of a writ of mandamus to the respondents to refer the dispute regarding illegal termination of his service and payment of back wages to the competent court.

(2) The facts of petitioner's case in brief are that he had been employed as an Electrician on 16.5.1988 by respondent No. 3 M/s Ansal Housing Finance & Leasing Company, New Delhi. Petitioner claims that he continued in service up to November, 1991 but was not paid wages from January, 1991 to November, 1991. Petitioner claims that he sought a reference to the labour court for adjudication of the same dispute through his Advocate Smt. Prem Aggarwal on 12.1.1992. Petitioner claims that he contacted his Advocated on various dates between 12.2.1992 to 2.11.1995 when he was informed that the Advocate had already sought reference of the petitioner's claims and written to the labour Commissioner. These assurances given by the counsel were found later on to be incorrect. Ultimately counsel advised the petitioner to contact Rajdhani Karamchari Union, Kalkaji.

(3) Petitioner is aggrieved that respondent No. 1, the appropriate Government did not make the reference with regard to adjudication of the dispute. Petitioner claims to have represented to respondent No. 2, the Labour Commissioner vide his letter dated 30.10.1998 and notice dated 17.11.1998 under Section 80 CPC was issued but to no avail. Petitioner claims that upon contacting the Union he came to know that the claim was not being referred to the competent court on account of undue delay that had been entailed in the matter.

(4) Learned counsel for the petitioner submits that it was on account of no fault of the petitioner that his request for seeking reference was not made to the Authorities on time. Petitioner had duly appointed an Advocate in the year 1992, requesting her to seek the reference. The lawyer kept on assuring the petitioner that every endeavor was being done, but nothing had be en done. It was only later on when he contacted the Union that he learnt that request for reference of the dispute, even had not been made. The same was turned down on account of the delay involved. The Secretary Labour vide order bearing No. F.24(2388)/98-Lab/17563-67 dated 29.4.1999 held that it was not a fit case for reference to the Industrial Tribunal on Labour Court for adjudication for the undermentioned reasons:

"Admittedly, the services of Sh. Ajit Singh, workman were terminated with effect from 28.1.1992 but he filed his statement of claim before the conciliation officer on 11.4.1997 i.e. after a gap of more than 5 years which is highly belated.

As required under the provisions of Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947, a copy of this order be sent to the parties concerned."

(5) I have heard learned counsel for the parties. Learned counsel for the petitioner submitted that there is no prescribed period of limitation for seeking a reference of an industrial dispute. The appropriate Government should have considered the extenuating circumstances of the petitioner's case wherein the petitioner had approached the lawyer well in time but was misled by her that request for reference had been made, while in fact it had not been made. Petitioner should not be mae to suffer for negligence of the lawyer. Learned counsel further relied on the judgments reported as Ajaib Singh v. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr. 1999 LLR 529 where the Court held that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act. Further relief cannot be denied to the workman merely on the ground of delay.

(6) The retionale for the above judgment is that reference of disputes to the Labour court is generally not to be questioned on the ground of delay. This is because even if delay is shown to be existing the Tribunal or labour court, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal termination.

(7) Counsel also placed reliance on Mahavir Singh v. U.P. State Electricity Board and Ors. . This was a case where the reference was held to be incompetent by the High Court as the dispute was raised belatedly. The High Court was in agreement with the labour court's view that termination order could not be sustained as it was illegal. The Supreme Court while dismissing the appeal held that once the termination was held to be illegal, the entire reference should not have been rejected on the ground as it could not be held that dispute had ceased to exist simply because it was raised belatedly. The same could be taken care of by not awarding full back wages. Learned counsel, therefore, summing up his arguments submits that this was a fit case for the State Government to refer the dispute considering that it was well within the domain of the labour court to have moulded the relief, even if the dispute was raised belatedly.

(8) Mr. Avtar Singh, learned counsel for the respondent No. 3 submitted that as stated by the petitioner in his written submissions, the employment of the petitioner workman was on temporary basis. He submits that the petitioner was employed as Electrician temporarily on 16.5.1988. He submits that his services were extended up to 20.4.1990 and documents in this regard have ben placed on record. Initially the appointment was for a period of six months, which was extended up to May, 1989 and thereafter up to November, 1989. The petitioner even thereafter continued to work up to 20.4.1990. The respondents claim that since his services stood terminated on 20.4.1990, there was no question of making the payment after April, 1990. The case of the petitioner that he was paid wages up to December, 1990, or that he worked up to November, 1991 was false.

(9) Learned counsel further submits that the employment of the petitioner was purely on temporary basis and as per the contractual terms. He ceased to be in service on expiry of contractual period of employment. As such, there is no question of any industrial dispute being raised.

(10) The upshot of the rival submission is that admittedly even as per the petitioner's case he ceased to be in employment after November, 1991. Reference of the dispute was sought by the petitioner vide his letter dated 11.4.1997 i.e. after a period of more that 5 years. If the date of termination, as given by the respondent No. 3 is accepted, it would be after 7 years. The question to be considered by the Court is can the action of the appropriate government in declining to refer a dispute on the ground of it being belated be sustained or not? Petitioner's case is that he kept on following up with Advocate, who had assured him that the request for reference had been submitted lacks credibility. No particulars are mentioned by the petitioner of his contacting the Advocate except the bald statement that he enquired from the counsel about the outcome of the case and he contacted her on several dates. It is not the petitioner's case that he took any action or served any notice on Advocate for negligence in the matter or for that matter lodged any complaint with the Bar Council against the Advocate, having given him false assurances. The Supreme Court in its judgment reported at The Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. , while dealing specifically with a case under Section 10 has held in para 6 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 abut 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 what circumstances they were dismissed f rom service were reinstated. Under what 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."

It would be seen that the exercise of discretion by the State Government in rejecting the reference cannot be said to be arbitrary or unreasoned or against well settled principle. While it is true that the appropriate Government can ignore certain delays and in appropriate cases, where it is satisfied that the dispute has not become stale or the petitioner was prevented from factors beyond his control in raising the dispute may overlook the delay in making reference. In such cases the rationale of the labour court or the Industrial Tribunal moulding the relief by not granting back wages, if ultimately the workers succeeds for the period of delay would come into play. However, in the case in hand, there are no special or extenuating circumstances for ignoring the delay in seeking reference. The decision of the State Government does not call for any interference in exercise of writ jurisdiction. The writ petition is dismissed.