Delhi Transport Corporation vs Chander Singh
2010 Latest Caselaw 401 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P. ( C) No. 2770/2008


                                Judgment delivered on: 25.01.2010

Delhi Transport Corporation                              ...... Petitioner

              Through: Mr. Jitender Kumar for the petitioner


                       versus

Chander Singh                                    ..... Respondent

Through: Mr. H.K. Chaturvedi for the respondent.

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 this petition filed under Article 226 and 227 of the

Constitution of India the petitioner seeks directions for quashing of

order dated 12.5.2000 passed by the Labour Court, whereby the

application of the petitioner management under Section 33(2) (b)

of the I.D. Act seeking approval was dismissed.

2. Brief facts relevant for deciding the present petition are that

the respondent workman joined the petitioner management on

14.5.83 and was dismissed vide order dated 6.6.94 on the grounds

of misconduct after conducting an enquiry. Pursuant to the order

of the removal, an approval application was filed under Section

33(2) (b) of the I.D. Act and the learned Labour court vide order

dated 12.5.2000 dismissed the said application filed by the

petitioner DTC and the respondent workman was reinstated on

17.7.2002. Thereafter, the respondent filed a writ petition bearing

W.P.(C) No. 623/2006 seeking directions for grant of full back

wages for the period for which he was out of service whereby the

court ordered the grant of full back wages to the respondent

workman vide order dated 29.11.2005. Then the management

petitioner filed an appeal bearing LPA No. 228/2007 where the

Hon'ble Division Bench granted liberty to the petitioner

management to withdraw the appeal and take recourse to the

appropriate remedy.

3. Mr. Chaturvedi, counsel for respondent no.2 at the outset

took an objection that the order dated 12.5.2000 passed by the

Labour Court had attained finality , as no challenge was made by

the petitioner to the said order when the respondent workman

had approached this court by filing writ petition (bearing W.P.(C)

No. 6922/2003) to seek directions for the grant of full back wages

and all consequential benefits in view of the fact that approval

application of the petitioner was dismissed by the Labour court.

4. Counsel for the petitioner contended that the said order

of the Labour court was earlier not challenged by the petitioner as

the respondent workman had earlier agreed not to claim back

wages in the court of law. Hence, due to the said representation

made by the respondent, the petitioner did not choose to

challenge the said order dated 12.5.2000.

5. Counsel for the petitioner drew the attention of this court to

the extracts from the note of petitioner DTC at page 200 of the

paper book. Counsel for the petitioner further submitted that the

respondent was reinstated in the service with immediate effect

but without grant of back wages but this fact was concealed by the

respondent workman from this court in writ petition bearing no.

6922/2003 filed by him. Counsel thus submitted that once the

respondent was reinstated in his service, on his representation not

to claim back wages, therefore, no need arose to challenge the

said order of the Labour court whereby the approval application of

the petitioner under Section 33(2) (b) was dismissed.

6. On the other hand, Mr. Chaturvedi, counsel for the

respondent submitted that vide order dated 29.11.2005, this

court gave directions to the petitioner DTC to grant full back

wages with all consequential benefits and the said order was

passed by this court after giving hearing to the petitioner DTC.

Counsel further submitted that in para 3 of the said order this

court had also observed that the order dated 12.5.2000 passed by

the Labour Court was not assailed by the petitioner DTC and the

same had attained finality. Counsel further submitted that the

order dated 29.11.2005 was challenged by the petitioner by filing

appeal bearing LPA No. 228/2007 but the same was withdrawn

by the petitioner with liberty to take appropriate remedy in the

matter.

7. I have heard learned counsel for the parties.

8. After dismissing the respondent from service vide order

dated 6.6.94 the petitioner DTC had approached the concerned

Labour Court to seek approval of their action by filing application

under Section 33 (2) (b) of the I.D. Act. The said application of the

petitioner was dismissed by the Labour court vide order dated

12.5.2000 as the petitioner DTC had failed to prove the alleged

misconduct on the part of the respondent workman. It is not in

dispute that the said order was not earlier assailed by the

petitioner before this court. The contention of the counsel for the

petitioner is that the said order was not assailed on account of the

fact that the respondent had agreed not to claim back wages.

9. On the other hand, the respondent sought his back wages

with all consequential benefits arising out of his reinstatement by

filing a writ petition bearing W.P.(C) No. 6922/2003. This Court

vide order dated 29.11.2005, after hearing both the parties,

came to the conclusion that the respondent workman deserved

grant of full back wages with all consequential benefits once the

application of the petitioner under Section 33(2) (b) of the I.D.

Act was dismissed by the Labour court. This court had placed

reliance on the judgment of the Apex Court in M.D. Tamil Nadu

State Transport Corporation Vs. Neethlvllangan, 2001 LLR

539, and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs.

Shri Ram Gopal Sharma & Ors. 2002(1) AD (SC) 182 and

came to the conclusion that once the approval is not given by

the Labour Court then the necessary consequence is restoring

back the status of the respondent which would entitle him to

continuity of service with back wages and other benefits. The

Court observed in the said order that since no challenge to the

said order dated 12.5.2000 was made by the petitioner; hence the

said order attained finality.

10. Feeling aggrieved with the said order dated 29.11.2005, the

petitioner preferred an LPA before the Division Bench of this Court,

but for reasons best known to the petitioner DTC, the same was

withdrawn by the petitioner. Undoubtedly, the petitioner had

every right to challenge the order of the learned Labour Court

whereby the application of the petitioner was dismissed seeking

approval under Section 33(2) (b) of the I.D. Act, but the petitioner

itself remained oblivious even after the respondent had

approached this court to seek enforcement of payment of his

back wages and other dues. The order in the said writ petition

bearing W.P.(C) No. 6922/2003 was passed by this court on

29.11.2005 but even then the petitioner did not wake up to

challenge the said order inviting observation of this court to say

that the order dated 12.5.2000 passed by the Labour Court has

attained finality.

11. Even by this writ petition, which has been filed after a lapse

of eight years, the petitioner has approached this court to

challenge the order dated 12.5.2000 and no explanation has been

offered by the petitioner in the present petition for such a long

delay of eight years except stating that the said petition was not

filed earlier on account of the stand taken by the respondent not

to claim his back wages. I do not find any force in the stand taken

by the petitioner as in the year 2003 the respondent had

approached this court to seek enforcement of payment of his back

wages and at least that should have alarmed the petitioner to

assail the said order dated 12.5.2000 passed by the Labour court.

12. Since already this court had made observation vide order

dated 25.11.2005 that the order dated 12.5.2000 has attained

finality, therefore, this court in the present petition would not take

any contrary view to the decision taken by this court vide order

dated 25.11.2005.

13. This court in the case of Delhi Transport Corporation Vs.

Jai Bhagwan (2003)103 DLT 376 was faced with a similar

situation and while discussing the rulings of the Apex Court it held

the delay to be fatal in such cases of industrial dispute. It would be

relevant to reproduce the paras of said judgment here:

"4. My attention has been drawn by Ms. Bajaj to the judgment of the Constitution Bench is State of Madhya Pradesh v. Bhailal Bhai, : [1964]6SCR261 . The Apex Court observed that "it is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay, the Court ought not ordinarily lend its aid to a party by this extraordinary remedy of Mandamus. .....It appears to us, however, that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of India can be measured. The Court must consider the delay unreasonable, even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable". It will be relevant to bear in mind that the Constitution Bench was concerned with a situation where the Petitioner had voiced the grievance that he had been assessed to tax under a void statute. Even in those extraordinary circumstances, the Supreme Court had declined to overlook the laches. Ms. Kittoo Bajaj also relies on the decision of the Hon'ble Supreme Court in Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. : [1969]1SCR808 . In that case, the Apex Court again articulated that "it is well-established that the Writ of Certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert this right as, taken in conjunction with the lapse of time and other circumstances, causes

prejudice to the adverse party". The Court relied on Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Arbram Farewell, and John Kemp 1874 (5) PC 221 and also specifically noticed in its earlier decision in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. AIR 1967 SC 1450. Ms. Kittoo Bajaj also relies on the observations of the Apex Court in Naib Subedar Lachhman Dass v. Union of India and Ors. MANU/SC/0326/1977 : 1977CriLJ1574 , where the Hon'ble Court found that the Writ Petition had been filed after a gross delay for which there was no specific Explanationn and, thereforee, endorsed the High Court's decision for a summary dismissal of the action. It may be observed that the laches has not even been attempted to be answered or explained by the DTC.

...............

There is not even a whisper of an Explanation given in the Petition justifying or explaining the Petitioner's approaching this Court after a period of four years, i.e. one year beyond the sanctioned period for a civil action. It may even be possible to perceive acquiescence in the Petitioner's conduct inasmuch as it has correlated the Petition to the issue of "leave without pay" rather than the dismissal for non-payment of costs.

This Court has been approached after an inordinate period of four years during which the Appellate while defending the Approval application Under Section 33(C)(2) took no action to assail the dismissal of the Approval application on which the subsequent action was predicated. In the Writ Petition, there is a reference to the pendency of a number of writ petitions, on the issue of "leave without pay". It is the pendency of those petitions which spurred the Petitioner to file the present Petition. The Petition is clearly barred by delay, laches and limitation and is dismissed on this ground."

14. The present petition is bad for delay and laches and

therefore, it cannot be entertained while exercising jurisdiction

under Article 226 of the Constitution of India without there being

any sufficient explanation being offered by the petitioner for the

delay and the same is hereby dismissed.

JANUARY 25, 2010                KAILASH GAMBHIR,J
 mg