The Executive Engineer vs Chhaje Ram Additional Superintending Engineer Vs Ram Singh The Sr. Executive Engineer Vs Lal Singh HPSEB and Another Vs Bhim Singh

A.M. Khanwilkar, C.J.—Heard counsel for the parties. Rule. Rule made returnable forthwith by consent. Counsel for the respective respondents waive notice. Taken up for final disposal by consent.

All these petitions can be disposed of together by common judgment as the issue raised is overlapping and similar. In all these petitions, the Labour Court has answered the reference in favour of the respondent-employees.

The grievance of the petitioners is that while answering the reference, the Labour Court has mechanically answered the issue regarding delay and laches in making reference merely by referring to decision of the Apex Court in the case of Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another,

Notably, in all these matters, the Labour Court has answered the issue of delay and laches by giving stereotype reason noted in paragraphs 21 and 22 of the leading petition. The same reads thus:

In Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, it has been observed by the Hon'ble Supreme Court that:

The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding under the ID Act. The relief under the ID Act cannot be denied merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone.

In view of the trite laid down in this ruling, it cannot be said that the petition is hit by the vice of delay and laches. Of course, the delay in raising the industrial dispute by a workman can be taken into account by the Court while granting him the relief(s) claimed. The observations made by our Hon'ble High Court in Sh. Liaq Ram Sharma Vs. State of Himachal Pradesh (majority view) will also be advantageous on this aspect of the matter.

According to the petitioners, the Labour Court has completely misconstrued and misread the decision of the Apex Court referred to above. That decision does not lay down a general proposition that in every reference made by the employee, in case of delay, it should necessarily be condoned.

The petitioners have relied upon the recent unreported decision of the Apex Court in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota versus Mohan Lal, in Civil Appeal No. 6795 of 2013, decided on 16th August, 2013, in which the Apex Court not only considered its decision in Ajaib Singh's case but also another decision in Asst. Engineer, Rajasthan Dev. Corporation and Another Vs. Gitam Singh, , and observed thus:

In a subsequent decision in Balbir Singh, this Court observed that Ajaib Singh was confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea of delay was raised before the Industrial Tribunal but we would emphasize the passage from Balbir Singh where it was said: "Whether relief to the workman should be denied on the ground of delay or it should be appropriately moulded is at the discretion of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is to be exercised judicially."

We are clearly of the view that though Limitation Act, 1963 is not applicable to the reference made under the I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singh that before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed.

In other words, the Labour Court was obliged to consider the issue of delay and laches in making reference on case to case basis, on its own merits, on the basis of the material placed on record by the respective parties and could not have disposed of the same by a general observation, as has been done in all these cases.

In the circumstances, we are inclined to set aside the finding recorded by the Labour Court in the respective matters on the issue of delay and laches in making reference. Instead, we remit each of these matters to the Labour Court for answering the said issue on its own merits, in accordance with law. In other words, the Labour Court shall answer only issue of delay and laches and no other issue in remanded proceedings.

For the time being, we are not examining the correctness of the decision on other issues in the respective cases. In the event, the issue of delay and laches in making reference is answered against the petitioners, it will be open to the petitioners to challenge the same by way of appropriate proceedings and in which proceedings, even the findings recorded on other issues can be assailed. We leave those questions open to be considered in the said proceedings.

The parties shall appear before the Labour Court on 18th November, 2013, on which date the Labour Court shall assign suitable dates in the respective cases for hearing the parties on issue of delay and laches in making reference while ensuring that the same is finally answered, one way or the other, on its own merits, in accordance with law, not later than 31st January, 2014. The petitions are disposed of on the above terms. Pending application(s), if any, also stand(s) disposed of.