Sh. Bhagat Singh vs Presiding Officer Rohtak & 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 award dated 29.07.2009 (Annexure P-1), passed by respondent No.1, whereby the claim of the petitioner for reinstatement was dismissed, and for a consequential direction to the respondents to reinstate the petitioner on his previous post with continuity of service and full back wages.

The case of the petitioner, as set up before the Labour Court, was that he joined service in the department of respondent No.2 in the year 1991 on daily wages as a Beldar and that his work and conduct remained satisfactory throughout, with no complaint against him. It was averred that despite having completed 240 days of continuous service in a calendar year in the departments of respondent Nos.2 and 3, his services were terminated by the respondents on 11.01.2000 without assigning any reason, without passing a speaking order and without affording any opportunity of hearing, in violation of the mandatory provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. Aggrieved, the petitioner served a demand notice upon the respondents, pursuant to which the matter was referred by the State Government, vide Endst. No.58056 dated 24.12.2002, to the Industrial Tribunal-cum-Labour Court, Rohtak (Ref. No.271/2002), for adjudication. The petitioner thereafter filed a claim statement before respondent No.1. Respondent No.2 appeared before the learned Tribunal and contested the claim by filing a written statement, denying that the petitioner had completed 240 days of continuous service in any calendar year and asserting that he had worked only for 9 days in April 1993, 28 days in May 1993 and 31 days in May 1994. Vide the impugned award dated 29.07.2009, the learned Tribunal dismissed the petitioner's claim. Hence, the present writ petition.

Learned senior counsel for the petitioner submits that the termination was illegal for non-compliance with Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947,despite the petitioner claiming to have completed 240 days of continuous service in the preceding year of his termination It is submitted that the learned Tribunal erred in disregarding the testimony of WW-2, Sunil son of Mahabir, who deposed to having worked alongside the petitioner, and in proceeding on the footing that no proof of service for the relevant period had been furnished, notwithstanding that the management led no evidence despite being granted several opportunities. It is further submitted that the award dated 29.07.2009 is illegal, arbitrary and unsustainable and has been passed in violation of the principles of natural justice, warranting interference by this Court.

On the other hand, learned State counsel submits that as per the record, the petitioner did not work for 240 days continuously in the year preceding his termination, having worked only 9 days in April 1993, 28 days in May 1993 and 31 days in May 1994. It is further submitted that the present petition is highly belated, the award being of the year 2009 and the writ petition having been filed after a delay of about 11 years, and is liable to be dismissed on this ground alone.

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

At the outset, it deserves notice that the present writ petition has been instituted after an unexplained and substantial delay from the date of the award. The petition is conspicuously silent as regards any sufficient cause for not approaching this Court within a reasonable period. Trite to say that a litigant invoking the discretionary and equitable jurisdiction under Articles 226 and 227 of the Constitution is expected to act with due diligence. In the absence of any satisfactory explanation for the delay, the petitioner cannot, as a matter of course, seek re-examination of an award which remained unchallenged for a considerable period.

It is well settled that although no period of limitation is prescribed for invoking the writ jurisdiction of this Court, delay and laches remain a relevant, and in appropriate cases a decisive, factor guiding the exercise of discretion under Articles 226 and 227 of the Constitution.

In State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, the Constitution Bench of Hon’ble the Supreme Court held that the period ordinarily prescribed for a suit claiming similar relief furnishes a reasonable yardstick for assessing delay in a writ petition, absent a satisfactory explanation.

In Karnataka Power Corporation Ltd. v. K. Thangappan, (2006) 4 SCC 322, the Supreme Court held that the High Court may decline to invoke its extraordinary jurisdiction where there is negligence or omission on the part of the applicant to assert his right, reiterating, with reference to State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, that a Writ Court does not ordinarily assist the tardy, the indolent, the acquiescent or the lethargic.

Still further, in Tridip Kumar Dingal v. State of West Bengal, (2009) 1 SCC 768, it was held that inordinate delay in approaching the Writ Court is good ground for refusing to exercise discretionary jurisdiction, the underlying object of the principle being to discourage agitation of stale claims and exhumation of matters already settled or in which the rights of third parties have accrued.

In Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108, it was held that a Writ Court, while bound to protect the rights of citizens, is equally obliged to scrutinise whether a belated lis ought to be entertained at all, since the law does not permit a litigant to sleep over his rights and rise, as it were, like a phoenix.

More recently, in Mrinmoy Maity v. Chhanda Koley, 2024 INSC 314, the Supreme Court reiterated that an applicant who approaches the Writ Court belatedly, having slept over his rights for a considerable period, ought not to be granted extraordinary relief, and that where delay and laches are made out, the writ petition is liable to be dismissed on that ground alone.

Applying the aforesaid principles to the facts of the present case, the petitioner has neither pleaded nor demonstrated any sufficient cause for the delay in assailing the award, nor has any explanation been furnished which would justify the belated invocation of the extraordinary jurisdiction of this Court. The award having remained unchallenged for a considerable period on account of such unexplained delay, the writ petition is liable to fail on this ground alone.

Even otherwise, no case for interference on merits is made out. The learned Tribunal found that the petitioner had failed to discharge the initial burden of proving completion of 240 days of continuous service in the year preceding his termination. The petitioner himself appeared as WW-1 and asserted that he had worked continuously from 01.01.1991 to 10.01.2000. However, WW-2, Sunil son of Mahabir, examined on his behalf, admitted in cross-examination that he had no proof to establish that the petitioner had worked during the relevant period, though he stated that attendance used to be marked on muster rolls.

It is true that the management did not lead evidence despite several opportunities and its evidence was ultimately closed by order dated 27.04.2005. However, the learned Tribunal nevertheless concluded that the petitioner had failed to discharge the initial burden of establishing the requisite period of continuous service.

The learned Tribunal further recorded an independent finding that even assuming that the workman had completed 240 days, Section 25-F of the Industrial Disputes Act would not be attracted where the appointment was de hors the rules and had been made without following the prescribed service rules or affording an opportunity to eligible candidates. Relying upon Executive Engineer & Anr. v. Presiding Officer, Labour Court & Anr., 2009 LLR 179 (P&H), and Ghaziabad Development Authority & another v. Ashok Kumar & another, (2008) 4 SCC 261, the learned Tribunal held that the petitioner, being a daily wager whose entry into service was itself held to be illegal, was not entitled to protection under Section 25-F. Issue No.1 was accordingly decided against the workman and in favour of the management.

Learned senior counsel for the petitioner has sought to place reliance upon Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192, to contend that the approach adopted by the learned Tribunal cannot be sustained. In that case, the workman's claim before the Labour Court had not been resisted on the ground that his initial appointment was illegal or unconstitutional; nor was any evidence or argument advanced on that aspect. The plea was sought to be introduced for the first time before the High Court in writ proceedings, which the Hon'ble Supreme Court held to be impermissible. The said judgment, however, does not advance the case of the petitioner in the facts and circumstances of the present case.

The distinction sought to be drawn from D.F.O. Bhiwani v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak & another, CWP No.2605 of 2009, also does not assist the petitioner. Unlike the position in Harjinder Singh (supra), the question regarding the nature of the petitioner's initial engagement and the applicability of Section 25-F was not raised for the first time before this Court. The management's contention that even completion of 240 days would not confer protection upon a daily wager whose appointment was de hors the rules was advanced before and considered by the learned Tribunal while deciding Issue No.1. The learned Tribunal thereafter returned a finding on that aspect and made it one of the grounds for denying relief. The vice against which Harjinder Singh (supra) guards, namely, introduction at the writ stage of a plea which had neither been pleaded nor tested before the Labour Court, is therefore not present in the case at hand.

It is also relevant to notice that Issue No.2, concerning the objection that the DFO did not fall within the definition of “industry”, was decided by the learned Tribunal in favour of the workman, since the said issue was not pressed by the management and no evidence had been led to establish the same. Thus, the dismissal of the petitioner's claim was not founded upon the said objection.

In the considered opinion of this Court, the findings recorded by the learned Tribunal are founded upon the evidence and material available on record and the legal position relied upon by it.

No perversity, patent illegality, jurisdictional error or violation of the principles of natural justice has been demonstrated which would warrant interference in the limited supervisory jurisdiction of this Court.

Needless to reiterate that this Court, while exercising powers under Articles 226 and 227 of the Constitution, does not sit in appeal over findings of fact recorded by the Labour Court and cannot re-appreciate the evidence merely because another view may also be possible.

For the foregoing reasons, the writ petition, being barred by inordinate and unexplained delay and laches and being devoid of merit even otherwise, is dismissed.

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