Delhi High Court
Sh. Ashwani Kumar And Ors. vs M/S Institute Of Hotel ... on 2 April, 2018
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 02.04.2018
+ W.P. (C) 3070/2018
SH. ASHWANI KUMAR AND ORS. ..... Petitioners
Through: Mr.Zaryab J. Rizvi, Advocate with
Ms.Firdouse R.Wani and Ms.Ishita Nagpaul,
Advocates.
versus
M/S INSTITUTE OF HOTEL MANAGEMENT, CATERING
AND NUTRITION, PUSA AND ANR. ..... Respondents
Through: Ms.Deepika Marwaha, Advocate
with Ms.Worthing Kasar and Ms.Raunika
Johar, Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
CM No. 12215-12217/2018 (exemptions)
Exemptions allowed subject to all just exceptions.
The applications stand disposed of.
W.P. (C) 3070/2018
1. The petitioners have invoked the writ jurisdiction of this court
under Article 226 of the Constitution of India for issuance of a
direction in the nature of mandamus or any other writ for setting
aside the Award dated 26.03.2015 passed by the learned
Presiding Officer, Labour Court-XVII, Karkardooma Courts,
Delhi (hereinafter referred to as „Industrial Adjudicator‟) in case
ID No. 77A/08 while answering the reference assigned by the
Government of NCT of Delhi dated 05.05.2008 against them.
2. On an advance copy of the petition having been served,
Ms.Deepika Marwaha, Advocate appears for the respondent
no.1/management.
3. Impugned award dated 26.03.2015 has been assailed in this writ
petition in March, 2018. There is absolutely no plausible
explanation offered by the petitioner for the exorbitant and
abnormal delay of about three years in approaching this court.
Though no period of limitation is prescribed for filing a petition
under Article 226 of the Constitution of India but there is no
rule of universal application for condonation of delay. Though,
there may be no period for limitation prescribed for filing the
petition under Article 226 of the Constitution of India yet the
person aggrieved should approach the court without loss of time
and if there is a delay, the petitioner must offer cogent
explanation. The line of decision of the Hon‟ble Supreme Court
on the issue would be indicative that the courts have evolved
self imposed restraints in inquiring into belated or stale claims.
One who is tardy, not vigilant and does not seek intervention of
the Court within a reasonable time from the date of arising of
the cause of action or alleged violation of the constitutional,
legal or other right, is not entitled to relief under Article 226 of
the Constitution of India. Since the petitioners have not offered
any just explanation in the writ petition, same is held to be
barred by time and latches and abnormal delay.
4. Even on merits, it is noted that the following reference was
made by the appropriate Government to the Industrial
Adjudicator: -
"Whether an employer-employee relationship existed
between the M/s. Institute of Hotel Management
Catering and Nutrition and (i) Sh.Ashwani Kumar S/o
Sh. Jagwat, (ii) Sh.Anuj Kumar S/o Sh. Kiran Pal, (iii)
Sh. Dharmender S/o Sh. Vijender, (iv) Sh. Rakesh
Kumar S/o Sh. Ravi Chand and (v) Sh. Kuldeep Kumar
S/o Sh.Mahavir Prasad (b) and if answer to question (a)
above is in affirmative, whether services of said
Sh.Ashwani Kumar and 4 others have been illegally
and/or unjustifiably terminated by the management; and
if yes, to what relief are they entitled?
5. On completion of pleadings, the following issues were framed
by the Industrial Adjudicator on 05.05.2009: -
"1. Whether the workmen prove that they are the
employees under the management number 1 and that
they have completed 240 days as pleaded by them?
2. Whether the workmen further prove that they
were illegally terminated/retrenched from the services
w.e.f. 21.04.2006?
3. Whether the management number 2 is not a
necessary party to the proceedings as per the terms of
reference?
4. Whether the dispute is barred by res-judicata as
claimed by management No.1?
5. Whether the management No.1 proves that the
workmen are the employees of management No.2 and
thus there is no relationship of employer and employee
between the workmen and management No.1?
6. What relief the workmen are entitled for?"
6. In order to prove their case all the petitioners stepped into the
witness box. They deposed in their respective testimonies that
they were appointed as helper and cook on 28.09.2004,
01.02.2005, 08.04.2004, 01.04.2004 and 13.08.2005
respectively with respondent no.1 on verbal orders of its
Principal. They stated that when they demanded the
appointment letters, the services of the petitioner Rakesh Kumar
were terminated on 01.12.2005 and services of other petitioners
were dispensed with on 21.04.2006. They also deposed that
they had approached Central Administrative Tribunal (in short
„Tribunal‟) by filing OA No.2794/2005 on 14.12.2005, which
was dismissed on 21.04.2006 as they have failed to prove that
they were the employees of respondent no.1. However, one of
the petitioners Anuj Kumar deposed in his cross-examination
that they had moved the Tribunal twice. He admitted that they
had not challenged the orders of the Tribunal as there was a
direction to move to the appropriate forum.
7. It is not disputed that all the five petitioners had filed OA No.
2794/2005 before the Tribunal praying for the similar benefits
as given to Sh.Sheesh Pal, Store Attendant.
8. The respondent no.1 specifically pleaded that there was no
relationship of employer and employee between them as the
petitioners were the employees of M/s. Sybex Computer
Systems (P) Ltd. i.e. respondent no.2, which was not a party
before the Tribunal. Admittedly, the OA No. 2794/2005 was
dismissed by the Tribunal by a detailed order on merits on
21.04.2006. The Tribunal observed that the salary, PF, ESI
contribution etc. were being paid to the petitioners by M/s.
Sybex Computer Systems (P) Ltd. The respondent no.2 had
also addressed a letter to the respondent no.1 whereby 13
persons were sent to the respondent no.1 for clerical and kitchen
services. The Tribunal found from the documents on the record
that all the petitioners are the employees of the contractor and
therefore there was no relationship of master and servant
between the petitioners and the respondent no.1 and the OA was
dismissed being misconceived and not maintainable.
9. Learned counsel for the petitioner submits that before dismissal
of the OA No. 2794/2005 on 21.04.2006, the petitioners filed
another OA No. 866/2006 on 20.04.2006 against the respondent
no.1 and the subsequent OA was permitted by the Tribunal to
be withdrawn with the liberty to approach the appropriate
forum. The Industrial Adjudicator has noted that the petitioners
did not place on record the copy of the petition of OA No.
866/2006 to show that what facts were pleaded by them and
what relief was sought.
10. He emphasised that the Tribunal had no jurisdiction to decide
the issue raised in OA No. 2794/2005 and as such, there was no
question of res judicata.
11. In fact, the petitioners have themselves approached the Tribunal
and submitted themselves to its jurisdiction and thereafter they
cannot be allowed to say that OA was decided by the Tribunal
without any jurisdiction. Admittedly, the OA No. 2794/2005
was decided on 21.04.2006 by the Tribunal on merits after
hearing both the parties and the order dated 21.04.2006 was
never challenged before the court in writ jurisdiction and has
attained finality.
12. The Industrial Adjudicator has relied upon the judgment of this
court in N.K. Anand and Anr. vs. Union of India & Ors.,
W.P. (C) 4875/2000 and of the Hon'ble Supreme Court in
Pondicherry Khadi and Village Industries Board vs. P.
Kulothangan and Anr., AIR 2003 SC 4701, and has rightly
come to the conclusion that the dispute between the parties is
barred by the principles of res judicata as the order dated
21.04.2006 was never assailed by the petitioners before this
court in the writ jurisdiction and has attained its finality. Even if
in the subsequent OA No.866/2006, the petitioners were
permitted to approach the appropriate forum, the order dated
21.04.2006 was never set aside and it is admitted by the learned
counsel for the petitioners that even the notice was not issued to
the respondent no.1 before giving them the liberty to approach
the appropriate forum.
13. Therefore, even on merits, I do not find any illegality or
infirmity in the impugned Award dated 26.03.2015 passed by
the Industrial Adjudicator. As such the petition is dismissed.
14. In view of the above, the application, being CM No.
12218/2018, also stands dismissed.
(VINOD GOEL)
JUDGE
APRIL 02, 2018
"shailendra"
