Mr. Rajeshwar Kumar vs Shri Nem Singh And Another
2009 Latest Caselaw 2901 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) No. 10499/2009

%                 Date of Decision: 29 July, 2009


# Mr. Rajeshwar Kumar
                                                    ..... PETITIONER
!                 Through: Mr. Davinder Singh, Sr. Advocate with
                           Mr. Saurabh Tiwari, Advocate.

                                 VERSUS

$ Shri Nem Singh & Anr.
                                                       .....RESPONDENTS

^                 Through: Nemo.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL) CM No. 9251/2009 (Exemption) in WP(C) No.10499/2009

Exemption as prayed for is granted subject to all just exceptions.

WP(C) No.10499/2009 & CM No. 9250/2009 (for stay)

This writ petition filed by the management (the petitioner herein) is

directed against an award dated 28.04.2003 passed by Mr. M.K. Gupta,

then Presiding Officer Labour Court IX, Delhi directing reinstatement of

the workman (respondent No. 1 herein) with 50% back wages.

2     Heard.

3     The workman (respondent No. 1 herein) was appointed as Pattern

Master by the petitioner in March, 1991 at a salary of Rs.5,500/- per

month. His services were terminated w.e.f. 12.11.1996. Aggrieved by his

termination, he raised an industrial dispute which was referred by the

appropriate Government for adjudication to the Labour Court. The

workman filed his statement of claim before the Labour Court in which he

alleged termination of his services by the management (the petitioner

herein) w.e.f. 12.11.1996. However, the petitioner in its written

statement filed before the Labour Court took a plea that the workman

had abandoned its service of his own w.e.f. 14.11.1996. The issue for

adjudication in the reference before the Labour Court was whether the

workman had abandoned the services of the petitioner of his own or was

he terminated by the petitioner management? The Labour Court gave

opportunity to both the parties to prove their respective stands but Mr.

Anil Kumar Singhal, authorized representative of the petitioner

management withdrew himself from the proceedings on 23.04.2003 and

for that reason, the management was proceeded ex-parte by the Labour

Court on that day. The Labour Court on the basis of evidence produced

by the workman before it passed the impugned award directing

reinstatement of the workman with 50% back wages except full back

wages for the period from 01.10.1996 to 12.11.1996. The period for

which full back wages were awarded by the Labour Court is the period for

which the workman had actually worked with the petitioner management

and was not paid his salary by the management. This point that he was

not paid his salary for the period from 01.10.1996 to 12.11.1996 has

been proved by the workman before the Labour Court by proving that the

management had given a cheque towards wages for the aforesaid period

which was dishonoured when presented for encashment.

4 The award challenged in the present writ petition was passed by

the Labour Court way back on 23.04.2003. This petition has been filed by

the management after more than six years of passing of the said award.

5 Mr. Davinder Singh learned senior counsel appearing on behalf of

the petitioner management contends that there is no delay on the part of

the petitioner in filing of the present writ petition because according to

him, this petition was filed by him in about a year's time after the

petitioner came to know in July, 2008 about passing of the impugned

award. According to the learned senior counsel, the petitioner came to

know about the impugned award for the first time in July, 2008 when he

received warrants of attachment issued pursuant to the impugned award.

Learned senior counsel appearing on behalf of the petitioner has also

argued that the Hon'ble Supreme Court has condoned delay of even 10-

12 years in filing of the writ petition and he has placed reliance on two

judgments of the Supreme Court in Salonah Tea Co. Ltd. & Ors. VS.

Superintendent of Taxes, Nowgong & Ors. reported as (1988) 1 SCC

401 and Suresh Chand Vs. Union of India & Ors.; (2004) 13 SCC 563 in

support of his above contention. In my view none of these two judgments

is applicable to the facts of this case. Each case has to be decided on its

own merits. It is true that no limitation is prescribed for filing of a writ

petition under Article 226 of the Constitution. Though no limitation is

prescribed for filing of writ petition, but a litigant seeking to invoke the

extraordinary writ jurisdiction of the High Court against a decision of the

Industrial Adjudicator must file the petition within a reasonable time and

in case there is delay in filing of the petition, some satisfactory

explanation for such delay must be given by the writ petitioner.

6 Learned senior counsel appearing on behalf of the petitioner has

contended that the petitioner could not file the present writ petition

earlier because he was suffering from severe depression right from 1997

onwards and in support of his said contention, he has referred to the

medical prescriptions which are at pages 54 to 69 of the paper book. I

have gone through copies of these medical prescriptions and on going

through the same, I do not find that the alleged illness of the petitioner

was of such a nature that he was prevented from filing the present writ

petition, if he was aggrieved from the impugned award passed about six

years back. In my considered opinion, the writ petition is hopelessly

barred by delay and latches and the petitioner has not given any

satisfactory explanation to show why he took more than six years in filing

of the said petition.

7 The contention of the petitioner that he came to know about the

impugned award for the first time in July, 2008 or that his earlier counsel

Mr. Anil Kumar Singhal has withdrawn himself from the proceedings

pending before the Labour Court without following the procedure for

discharge does not appeal to my conscious. It is difficult to ram down the

throat that a management defending a reference before the Labour Court

would sleep over between 2003 when his counsel had withdrawn himself

from the proceedings in the Labour Court and July, 2008 when he

allegedly came to know about passing of the impugned award. A prudent

litigant is expected to keep a tab on the progress of his case pending in

the Court. The contention that the petitioner came to know about the

impugned award for the first time in July, 2008 appears to be an

afterthought and seems to have been taken to give an impression as if

the delay in filing of the writ petition was only of one year.

8 For the foregoing reasons, this writ petition is dismissed as barred

by delay and latches. Stay application is also dismissed for the same

reasons.

JULY 29, 2009                                    S.N.AGGARWAL, J
'a'