Delhi High Court

All India Institute Of Medical ... vs Sanjay Kumar & Anr. on 20 January, 2011

Author: Dipak Misra,Chief Justice

*              THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 20th January, 2011

+      LPA No. 143/2010

       ALL INDIA INSTITUTE OF MEDICAL
       SCIENCES                                   .... Appellant
                       Through: Mr.Rajat Katyal and Mr.Anchit
                                Sharma, Advocates
                versus

       SANJAY KUMAR & ANR.                                 ..... Respondents

                   Through:                    Mr.Amiet Andlay, Adv for R-2

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers 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


DIPAK MISRA, CJ

In this intra-court appeal, the pregnability of the order dated 9 th

December, 2009 passed by the learned Single Judge in WP(C)

No.9640/2007 is called in question.

2. The facts which are requisite to be stated for adjudication of this

appeal are that the reference made under Section 10(1) of the Industrial

Disputes Act, 1947 (for brevity „the Act') on 4th January, 2007 by the

Government of NCT of Delhi, the respondent No.2 herein, was totally

unwarranted being hit by the doctrine of delay and laches and further on

the foundation that on the date of reference no industrial dispute as such

was in existence. On a perusal of the order passed by the learned Single

Judge, it transpires that the respondent No.1, who was a daily wager in

AIIMS, claimed to have faced an order of termination by the

management on 1st March, 1996. He filed an application for

conciliation before the District Labour Officer on 26th May, 2005. As no

re-conciliation took place, the failure report was submitted to the

respondent No.2 and keeping the same in view, the respondent No.2

made the reference to the labour court for adjudication.

3. Be it noted, the terms of the reference made by the respondent

No.2 reads as follows:

"Whether Sh.Sanjay Kumar S/o Sh.Kalicharan has abandoned his job of his own or his services have been terminated by the management illegally and/or unjustifiably and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/Govt. notifications and to what other relief is he entitled and what directions are necessary in this respect?"

Challenging the said reference, it was contended before the

learned Single Judge that the claim put forth by the workman was

absolutely stale and by no stretch of imagination it can be held that an

industrial dispute did exist to make a reference for adjudication. The

learned Single Judge expressed the view that the objection relating to

delay and laches in raising the dispute by the workman can be taken up

by the management in its written statement to be filed before the Labour

Court and further as the management has already entered appearance

before the Labour Court, the writ petition was sans substance. Being of

this view, the learned Single Judge dismissed the writ petition.

4. Mr.Rajat Katyal, learned counsel appearing for the appellants,

submitted that the learned Single Judge has fallen into error by

expressing the view that the management could raise the issue of delay

and laches before the Labour Court and was not entitled to challenge the

reference. It is urged by him that if the factual matrix is appreciated with

studied scrutiny, it would be quite vivid that the respondent No.2 has

failed to appreciate that the industrial dispute as understood in law did

not exist at the time of reference and the law does not countenance

making stale claims alive unless there has been a continuous cause of

action to keep the dispute alive. To buttress his submission, he has

commended us to the decisions in Nedungadi Bank Ltd. v. K.P.

Madhavankutty & others, 2000 (2) SCC 455 and Dharappa v. Bijapur

Coop. Milk Produces Societies Union Ltd., (2007) 9 SCC 109.

5. Despite service of the notice, the workman has remained absent.

6. Mr.Amiet Andlay, learned counsel appearing for the GNCTD,

submitted that the State Government had correctly made the reference as

it was obliged in law to do so. It is put forth by him that the State

Government has no authority to adjudicate the issue of limitation as it is

not within the domain of the executive but within the sphere of

adjudication by the labour court/industrial adjudicator. The learned

counsel has placed reliance on Ajaib Singh v. Sirhind Cooperative

Marketing-cum-Processing Service Society Ltd., (1997) 6 SCC 82,

Sapan Kumar Pandit v. U.P. State Electricity Board & Ors., 2001 (4)

SCALE 467 and Sharad Kumar v. Govt. of NCT of Delhi, (2002) 4

SCC 490.

7. At the very outset, we may note with profit that there is no dispute

with regard to the factual matrix of the case at hand. We are inclined to

think so. On a perusal of the material brought on record, it is clear as

day that the workman had alleged that he had been removed by the

management w.e.f. 1st March, 1996. He raised the industrial dispute

before the competent authority on 14th January, 2005. As the

government file would show, the management did not appear and,

accordingly, the district labour officer referred the matter to the State

Government which, in turn, referred the matter for adjudication to the

labour court by drawing a schedule and terms of reference which we

have reproduced herein above. The question that emerges for

consideration is whether in a case of this nature the State Government

was obliged in law to make a reference.

8. In this context, we may profitably refer to the decision in K.P.

Madhavankutty and Others (supra) wherein the Apex Court was dealing

with a case whereby the Central Government had made a reference order

under Section 10 of the Act in respect of a workman who was dismissed

on 1st January, 1983 and a reference was made whether the dismissal of

the employee w.e.f. 11th August, 1972 was justified. The employee had

filed an application on 24th May, 1979. While dealing with the factum of

delay and laches as well as the issue of stale claims, their Lordships have

held as follows:-

"6. 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 a lapse of about 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 and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent."

9. After so stating, it has been further expressed as follows:-

"7. In the present appeal, it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after lapse of about seven years of the dismissal of the respondent.

Whenever a workman raises some dispute it does not become industrial dispute and appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purposes of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question."

10. Be it noted, their Lordships also made a reference to the decision

in National Engg. Industries Ltd. v. State of Rajasthan, (2001) SCC

371 wherein it has been held thus:-

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject- matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."

11. In view of the aforesaid enunciation of law, it is the duty of the

appropriate government to see whether the industrial dispute exists at the

time of reference.

12. In Dharappa (supra), a two-Judge Bench of the Apex Court have

opined that though the Act does not provide for limitation, yet if on

account of delay, a dispute has become stale or ceases to exist, the

reference should be rejected. The delay becomes fatal on such an

occasion. Be it noted, a contention was canvassed that the court has to

keep in view the provision of Section 10(1)(c) and (d) of the Act but the

said submission was repelled by stating that the said provision does not

revive stale claims.

13. In the case at hand, the workman, the respondent No.1 herein,