Sh.Jitender Singh Yadav vs The Management ??? D.T.C.
2009 Latest Caselaw 1943 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No. 8661/2009

                                       Date of Decision : 08.5.2009

SH.JITENDER SINGH YADAV                          ...... Petitioner
                                      Through : Mr. Gauri Shankar
                                      Sharma, Advocate.


                                 Versus

THE MANAGEMENT - D.T.C.                       ...... Respondent
                                      Through : Mr. Nawal Kishore
                                      Jha, Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                   NO
2.    To be referred to the Reporter or not ?        NO
3.    Whether the judgment should be reported
      in the Digest ?                                NO

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged

the award dated 14.12.2005 passed by the learned Labour

Court-X in ID No.19/2005 in case titled as The Management of

M/s DTC Vs. Its Workman Sh.Jitender Singh Yadav.

2. By virtue of the aforesaid award, the learned Labour Court

has held that as the petitioner had not completed 240 days of

actual working in a calendar year, he was not entitled to any

benefit under the Industrial Disputes Act.

3. Feeling aggrieved by the aforesaid finding, the present writ

petition has been filed.

4. I have heard the learned counsel for the parties and

perused the record. The contention of the learned counsel for

the petitioner is that although the petitioner may not have

completed 240 days however, he was not the last person who had

joined the DTC and therefore, he could not be made to go first.

In this regard, it has been contended by him although this claim

of the last come first go has not been mentioned in the statement

of claim but this fact could have been established by the

respondents on production of accounts.

5. As regards the inordinate delay in assailing the award, the

learned counsel has stated that in para 18 of the writ petition, he

has stated that his father was falsely implicated in some criminal

case because of which he was under shock and he was suffering

financial crisis and therefore, could not challenge the aforesaid

award.

6. I have carefully considered the submission of the learned

counsel for the parties and perused the record. The award was

passed on 15.1.2005. It was published on 3rd May, 2006 and

thereby became enforceable on 02.6.2006 even if the cause of

action is deemed to have accrued on 02.6.2006 even then the

writ petition has been filed after the expiry of more than 2½

years. Although the petitioner has given the reason for non-filing

of the writ petition as the false implication of his father in a

criminal case and the financial crises however, I am unable to

accept the same as a general preposition which would entitle him

or justify invoking of writ jurisdiction after a lapse of 2 ½ years.

The Apex Court in catena of judgments has laid down that

although there is no specific period of limitation prescribed

invoking the writ jurisdiction but it must be done as

expeditiously as possible and if there is a period of limitation

prescribed by the Limitation Act that would be the guiding factor

though in a given case it may be even a lesser period.

7. In the instant case, the delay of more than 2 ½ years from

the date of publication of the award shows that the petitioner

had reconciled to his fate and accepted the award. It seems that

the wisdom has dawned on him late to assail the award so that

he could get some benefit out of the same. A person cannot be

permitted to rake up a stale claim. Therefore, in my opinion, the

present writ petition is barred by inordinate delay and laches and

accordingly, deserves to be dismissed. Reliance in this regard is

placed on State of MP Vs. Bhai Lal Bhai AIR 1964 SC 1006.

8. The second submission of the learned counsel for the

respondents ought to have adduced the evidence to show that

the petitioner was the last person and therefore, he was made to

go first is not of any consequence.

9. The basic fundamental of the evidence is that one who

asserts must prove as is envisaged under Section 101 of the

Evidence Act although the provisions of Evidence Act may not

applicable to the proceedings before the learned Labour Court

but the principles will be governing the proceedings before the

learned Labour Court also. The petitioner had admittedly not

completed 240 days in a calendar year. Even in the statement of

claim no specific name has been mentioned of a co-worker who

had been recruitment after the petitioner. Even if it is assumed

that such a plea has been taken by the petitioner in the

statement of claim, the onus was primarily on the petitioner to

have adduced evidence to show that there was a person who had

been recruited after the petitioner and though his services were

retained the services of the petitioner were dispensed with. This

has not been done. Therefore, on question of facts also, the

learned Labour Court has not found any violation of the

provisions of Industrial Disputes Act.

10. Keeping in view the fact that the scope of judicial review is

actually to see as to how the decision is arrived and not the

quality of decision, this Court does not find any infirmity or

illegality in the process of arriving at the said decision.

Accordingly, the writ petition is dismissed in limine apart from

the fact that it is barred by inordinate delay and laches.

No order as to costs.

V.K. SHALI, J.

MAY 08, 2009 RN