Randhir Singh vs State Of Haryana & Ors.

KIRTI SINGH, J. (ORAL)

The instant petition has been filed under Articles 226/227 of the Constitution of India seeking quashing of the impugned order dated 30.01.2001 (Annexure P-3), passed by the learned Joint Secretary, Haryana Govt., Labour Department, whereby the reference made at the instance of the petitioner-workman came to be declined on the ground of delay.

Briefly stated, the case of the petitioner is that he joined service as a Peon in mid August, 1991 and remained in service upto 31.01.1994. According to the petitioner, his work and conduct remained satisfactory and there was no complaint against him. His services were terminated on 31.01.1994. Aggrieved thereby, the petitioner served a demand notice (Annexure P-1) upon the respondent Nos.2 and 3. The respondents filed their reply (Annexure P-2), after which reconciliation proceedings were initiated. The reconciliation proceedings having failed, the matter was sent to the State Government i.e. respondent No.1. However, respondent No.1 declined to refer the dispute of the petitioner on the ground that there was a delay of almost six years since the date of termination and that too without justification.

Learned counsel for the petitioner submits that respondent No.1 erred in rejecting the claim on the ground of delay, particularly when the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) does not prescribe any period of limitation for raising an industrial dispute or seeking a reference under Section 10 thereof. It is submitted that Article 137 of the Limitation Act, 1963 has no application to proceedings under the Industrial Disputes Act. Learned counsel further submits that the petitioner, being a peon and ordinarily having little knowledge of his legal rights. It is contended that after the termination of the petitioner, he was informed by respondent Nos.2 and 3 that the petitioner shall be reinstated keeping in view the work and after getting proper sanction, but nothing was done. Upon which, the petitioner was continuously representing the respondents concerned. It was in October/November 1999, the petitioner came to know that certain persons have been recruited as Peon. Thereafter, the petitioner served a demand notice upon the respondents concerned in January, 2000.

On merits, learned counsel submits that the termination of the petitioner's services was illegal and in violation of the mandatory requirements of Sections 25-B, 25-F, 25-G and 25-H of the Act. It is submitted that the petitioner had completed more than 240 days of continuous service and was thus entitled to the protection of Section 25-F before his services could lawfully be terminated. It is further submitted that the retrenchment compensation was not paid in accordance with law. It is contended that the termination amounted to a colourable exercise of power, inasmuch as other persons were joined in service, however, the case of the petitioner was not considered, as assured by the respondents concerned. On these premises, interference with the impugned award is sought.

Per contra, learned State counsel submits that the petitioner has not approached this Court with clean hands. He submits that the petitioner was engaged on daily wages for the first time w.e.f. 21.08.1991 to 17.11.1991 for a period of 89 days at the rate fixed by the Deputy Commissioner, Gurgaon. Thereafter, the petitioner was again engaged as Peon/Labour for a period of 89 days w.e.f. 20.11.1991 to 16.02.1992, 19.02.1992 to 17.05.1992 and lastly w.e.f. 19.05.1992 to 14.08.1992. He further denied the claim raised by the petitioner that he was appointed as a Peon in mid August, 1991 and worked upto 31.01.1994. Learned counsel submits that since the engagements were for specific periods and on expiration of the respective periods the contracts came to an end, Section 2(oo)(bb) of the Act was attracted and, therefore, Section 25-F of the Act was not applicable to the case.

I have heard learned counsel for the parties and perused the relevant material on record.

The question which arises for consideration of this Court is whether respondent No.1 was justified in declining relief on account of the delay in raising the industrial dispute, notwithstanding that the Industrial Disputes Act, 1947 prescribes no specific period of limitation for raising such a dispute.

While it is correct that the Industrial Disputes Act, 1947 does not prescribe any specific period of limitation for raising an industrial dispute, the absence of a statutory period of limitation does not confer an indefeasible right upon a workman to seek a reference irrespective of the length of delay. The power under Section 10 of the Act has to be exercised in respect of a dispute which is subsisting and has not become stale. Thus, the real question is not whether the claim is barred by any prescribed period of limitation, but whether, having regard to the facts and circumstances of the case, an industrial dispute continued to exist as a live dispute when the matter was raised before the appropriate Government.

In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, (2000) 2 SCC 455, the Hon'ble Supreme Court held that although no time-limit is prescribed for the appropriate Government to exercise its power under Section 10 of the Act, such power cannot be exercised mechanically so as to revive a stale dispute. It was held that a dispute which has become stale cannot be the subject-matter of a reference and that whether a dispute has become stale has to be determined having regard to the facts and circumstances of each case. The principle underlying the decision is that the absence of limitation does not mean that a dispute remains alive indefinitely.

The aforesaid principle was subsequently considered in Prabhakar v. Joint Director, Sericulture Department and another, (2015) 15 SCC 1 where the Hon'ble Supreme Court reiterated that the law of limitation, as such, does not apply to proceedings under the Act, but the workman has nevertheless to demonstrate that the dispute continued to remain alive and had not become stale. At the same time, delay cannot be examined mechanically; the circumstances relied upon by the workman for explaining the delay, including any continuing negotiations, assurances or other circumstances showing subsistence of the dispute, have to be considered. Thus, the question is essentially one of fact to be determined from the conduct of the parties and the material placed before the appropriate Government.

Adverting to the present case, the petitioner claims that his services were terminated on 31.01.1994. The demand notice, however, was raised only on 27.04.2000. Thus, even accepting the petitioner's own pleaded case as to the date of termination, there was a lapse of more than six years before the industrial dispute was sought to be raised. The impugned order records that the Government declined to make the reference on the ground that the demand notice had been served after about six years from the termination of service and that no justification for the delay had been furnished.

Learned counsel for the petitioner has sought to explain the delay by submitting that the petitioner had been continuously approaching the respondents and had been assured that he would be reinstated upon availability of work and after obtaining the requisite sanction. The petitioner had indeed made such an assertion in his pleadings. However, the material on record does not disclose any contemporaneous representation or other material demonstrating that the dispute was being actively pursued during the substantial intervening period. The respondents, on the other hand, specifically disputed the petitioner's assertion and maintained that he had no subsisting engagement after the expiry of his last contractual period; they further stated that the representation relied upon by the petitioner was submitted only on 24.04.2000.

Mere assertion of having made representations, without material showing a continued and bona fide pursuit of the alleged industrial dispute over a period of more than six years, cannot by itself be regarded as sufficient to keep an otherwise stale dispute alive. More so, the petitioner's case regarding the very nature and duration of his engagement was seriously disputed by the respondents, who asserted that he had been engaged only for successive periods of 89 days, the last such engagement having come to an end on 14.08.1992. In these circumstances, the appropriate Government cannot be said to have acted arbitrarily in taking into account the prolonged and unexplained lapse of time while considering whether the dispute continued to subsist.

The contentions raised by the petitioner regarding completion of 240 days of service and alleged violation of Sections 25-F, 25-G and 25-H of the Act relate to the merits of the underlying claim. The respondents, in turn, dispute the petitioner's alleged continuous service and contend that his engagements were for specified periods and stood concluded on expiry of the respective contracts, besides raising a plea under Section 2(oo)(bb) of the Act. These rival contentions would arise for adjudication on merits only if a reference were otherwise liable to be made. Since the appropriate Government has declined to make the reference on the ground that the dispute had become stale, and that conclusion is found to be based upon a relevant and legally permissible consideration, it is neither necessary nor appropriate for this Court, in exercise of its supervisory jurisdiction, to adjudicate upon the disputed merits of the alleged termination.

It is also relevant that the jurisdiction of this Court under Articles 226 and 227 of the Constitution, in examining an order of the appropriate Government declining to make a reference, is supervisory and not appellate. The Court is not required to substitute its own opinion merely because another view may be possible. Interference would be warranted if the decision is shown to suffer from patent illegality, perversity, jurisdictional error or consideration of wholly irrelevant material. In the present case, the appropriate Government took into consideration the admitted circumstance that the demand notice was raised after a substantial lapse of time and the absence of a satisfactory explanation for such delay. The conclusion that the dispute had become stale, in the facts of the present case, cannot be said to be perverse, irrational or otherwise vitiated by any jurisdictional error. The mere absence of a statutory period of limitation under the Act does not render such consideration impermissible. The challenge to the impugned order, therefore, fails.

In view of the foregoing discussion, this Court finds no patent illegality, perversity or jurisdictional error in the impugned order dated 30.01.2001 warranting interference under Articles 226/227 of the Constitution of India.

Consequently, finding no merit in the present writ petition, the same is hereby dismissed.

Pending miscellaneous application(s), if any, shall also stand disposed of.