Shri Balle Ram vs Shri Ashok Kapoor, Secy. (Labour) ...
2009 Latest Caselaw 1894 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        WPC No. 4392/1997



             Judgment delivered on: May 6, 2009

%

Shri Balle Ram                                    ...... Petitioner

                             Through: Petitioner in person

                    versus

Shri Ashok Kapoor, Secy. (Labour) and Anr         ..... Respondents

                             Through: Mr. Vinay Sabharwal, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may               Yes
      be allowed to see the judgment?

2.    To be referred to Reporter or not?                      Yes

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

KAILASH GAMBHIR, J. (ORAL)

*

1. By way of this petition filed under Articles 226 & 227 of the

Constitution of India, the petitioner seeks issue of an appropriate writ,

order or direction to quash order dated 21/03/1997 and order dated

23/04/1997 in the review petition passed by Respondent No. 1.

2. The brief conspectus of the facts as set out in the petition are as

under:

The petitioner was appointed by the respodnetn no.2 as

Conductor in the year 1983 and after completion of training the

petitioner was posted as Conducted w.e.f. 6.3.84 vide his Badge NO.

20737. On 7.1.85 the respondent no.2/DTC terminated the services of

the petitioner on the basis of a report of ATI against the petitioner. In

the said report it was alleged that the two passengers boarded the

bus. No. DLP-4073 of Route NO. 817 from Sewak Park to Najafgarh at

8.30 A.M. but they did not purchase the ticket. However, case of the

petitioner is that the said passengers purchased the ticket but the ATI

snatched the tickets from them and made fictitious report against the

petitioner as he was having personal grudge against the petitioner.

On the basis of the said allegations the petitioner was removed from

the service on the same day and monthly salary and other dues and

benefits of the petitioners were withheld by the respondent. The

petitioner got issued a demand notice dated 21.9.91 to DTC and a

reminder dated 6.5.94 was also sent to the respondent no.2/DTC. On

17.4.95 the petitioner filed his statement of claim before the

Conciliation Officer against the respondent no.2. Vide order dated

21.3.97 the respondent no.1 rejected the claim petition of the

petitioner. Thereafter the petitioner filed review petition which was

also dismissed vide order dated 23.4.97. In the present petition the

petitioners has challenged the orders dated 21.3.97 and 23.4.97.

3. The counsel for the respondent has raised a preliminary objection

that the present petition is hopelessly time- barred and is liable to be

dismissed summarily on this account itself. The counsel submits that

initially the reference of the dispute was sought for by the petitioner

nearly 10 years after his services were terminated. His services were

terminated on 08/01/1985 whereas, he had filed his statement of claim

before the Conciliation Officer, Govt. of Delhi in April 1995. The counsel

urges that even no explanation has been put forth by the petitioner

and thus Respondent No. 1 rightly did not refer the matter to the

Industrial Tribunal for adjudication.

4. Per contra, counsel for the petitioner maintains that the orders

dated 21/03/1997 and 23/04/1997 passed by the Respondent No. 1 are

illegal and unjustified and are not speaking orders. The counsel avers

that due to undue hardship caused to the petitioner on illegal removal

of the petitioner from the services of DTC, the petitioner could not

approach the Respondent No. 1 on time. The counsel contends that the

petitioner has a strong case on merits thus this court may exercise its

jurisdiction under Art. 226 of the Constitution. The counsel relied on

the decision in Ajaib Singh vs. Sirhind Cooperative Marketing -

Cum- Processing Service Society Limited and anr - 1999 SCC

(L&S) 1054 of the Hon'ble Apex Court.

5. I have heard the learned counsel for the parties and perused the

record.

6. Before I proceed to discuss the merits of the arguments raised

by the learned counsel appearing for the parties in regard to

correctness and legality of the impugned orders, it will be appropriate

to refer to few judgments relating to contention of the parties

regarding jurisdiction vested in the appropriate Government while

exercising its administrative power of making a reference under

Section 10(1)(c) of the Act.

7. It is not in dispute that no limitation is prescribed either under the

Industrial Disputes Act or under the Limitation Act for raising industrial

dispute and the Hon'ble Supreme Court in its various judgments cited

by counsel for the petitioner has been considerate in condoning even

long delays on the part of the workman in raising an industrial dispute

but rationale of all these judgments is that every case has to be taken

on its facts and circumstances and it is nowhere held that howsoever

an inordinate and unexplained delay may be on the part of the

workman, the delay has to be condoned.

8. Explaining the ratio of the decision in State of Madras Vs. C.P.

Sarathy 1953 SCR 334, in Western India Match Co. Ltd. v.

Western India Match Co. Workers Union, (1970) 3 SCR 370 The

Supreme Court explained the power of appropriate government under

S. 10 of the I.D. Act and observed as under:

"In the State of Madras v. C.P. Sarathy, this Court held on construction of Section 10(1) of the Central Act that the function of the appropriate Government there under is an administrative functions. It was so held presumably because the Government cannot go into the merits of the dispute its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible."

9. In Bombay Union of Journalists and others v. The State of

Bombay and another, AIR 1964 SC 1617, , the relevant scheme of

the Act as disclosed by Section 12 viz-a-viz the powers of the

appropriate Government under Section 10 was discussed. It was held

therein as under :

"When the appropriate Government considers the question as to whether a reference should be made under section 12(5), it has to act under section 10(1) of the Act, and Section 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial

adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under Section 12(4), the appropriate Government ultimately exercises its power under section 10(1), subjects to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference, when the dispute has gone through conciliation and a failure report has been made under Section 12(4)."

10. Thus, from the above discussion it is pertinent to note that

while conceding a very limited jurisdiction to the State

Government to examine patent frivolousness of the demands, it

is to be understood as a rule, that adjudication of demands made

by workmen should be left to the Tribunal to decide. Section 10

permits appropriate Government to determine whether dispute

"exists or is apprehended" and then refer it for adjudication on

merits. The "demarcated functions are (1) reference; (2)

adjudication. When a reference is rejected on the specious plea

that the Government cannot bear the additional burden, it

constitutes adjudication and there by usurption of the power of

quasi-judicial Tribunal by an Administrative authority, namely, the

Appropriate Government. There may be exceptional cases in

which the State Government may, on a proper examination of the

demand come to a conclusion that the demands are either

perverse or frivolous and do not merit a reference. Government

should be very slow to attempt an examination of the demand

with a view to decline reference and Courts will always be vigilant

whenever the government attempts to usurp the powers of the

Tribunal for adjudication of valid disputes. To allow the

Government to do so would be to render Sections 10and 12(5) of

the Industrial Disputes Act nugatory.

11. A judgment reported in MANU/SC/0049/2000, Nedungadi

Bank Ltd. v. K.P. Madhavankutty and Ors., the Supreme Court has

held that the power to condone the limitation cannot be exercised to

condone any period of limitation for reviving matter which had since

been settled. It would be appropriate to reproduce the following

observation of the Supreme Court:

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 heel 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 a lapse of about seven years of the 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 and subsequently reinstated is nowhere

mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent.

12. In another judgment reported in MANU/SC/0261/2003, S.M.

Nilajkar and Ors. v. Telecom District Manager, Karnataka, the

Supreme Court after the decision of the High Court for having given

relief to the workman on the ground of delay has observed as under:

It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Their Workmen (supra) MANU/SC/0140/1959, that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons thereforee. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in Shalimar Works Limited v. Their Workmen (supra) MANU/SC/0140/1959. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (supra) MANU/SC/0049/2000, a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and Ors. v. Union of India and Ors. (supra) 1993 AIR SCW 2214 (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees under P and T Department v. Union of India (supra)MANU/SC/0434/1987, the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated

the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal- cum-Labour Court. We do not think that the appellants deserve to be non- suited on the ground of delay.

13. My brother Judge A.K. Sikri in the judgment 2000 VII AD (Delhi)

1145, Dharambir v. State of NCT of Delhi has also very elaborately

dealt the issue of delay in the said judgment and has held that where

the matter raised by the workman is belated, the same must form a

relevant part for refusing reference and the decision of the

Government refusing to make a reference on the ground of inordinate

and unexplained delay on the part of the workman was held as just

and proper.

14. Analysis of the above decisions, clearly shows that the

appropriate Government is vested with administrative power to make

or decline a reference. Such power is to be exercised in line with the

law enunciated by the Courts and essentially must not transgress its

jurisdiction and travel into the matters of final determination which

would squarely fall within the jurisdiction of the Labour Court or

Tribunal. Application of mind for valid and appropriate reasons is the

pre-requisite for denial or making a reference in terms of these

provisions. The reasonableness in terms of period is sufficiently

adopted under the scheme of this Act. This is manifest from the fact

that on the one hand there is no specific limitation stipulated for

raising a demand or making a reference but the proceedings of the

authorities immediately preceding the reference as indicated in

Section 12 of the Act and post proceedings or determination of the

dispute again within the specified time under Section 10(2)(a) of the

Act shows the legislative intendment for adherence to the prescribed

schedule of time and expeditious disposal of industrial disputes.

One of the irresistible conclusions of the above discussion

is that the concept of reasonable time has great application to

objective implementation of various orders and period of limitation

weigh with the authorities as well as with the Courts while dealing with

the matters. Thus, it may not be quite correct to argue that

Government would have no jurisdiction to decline reference of an

industrial dispute, which has become stale and has extinguished

because of unexplained prolonged delay. The time may not be of

essence but is certainly a relevant factor to be taken into consideration

by the appropriate Government at the appropriate stage.

15. In the present facts and circumstances of the case, there is no

justification or Explanation has been given as to what prevented the

petitioner to raise an industrial dispute against his alleged termination

which admittedly took place on 08/01/1985. In the absence of any

explanation been put forth by the petitioner in this regard, I do not find

any merit in the present petition. The same is hereby dismissed.

May 06, 2009                           KAILASH GAMBHIR, J