Letters Patent Appeal No.629 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.629 of 2009 Date of decision: 28.07.2009 *** Sat Pal ...Appellant Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. R.C.Dogra, Senior Advocate with Mr. Ranjna Salaria, Advocate for the appellant ***** S.D.ANAND, J. The facts, relevant for the purpose of disposal of the controversy in this Letters Patent Appeal, can be indicated as under with brevity:- The appellant was in the employment of the respondent, as Beldar with effect from 16.12.1978. He functioned in that capacity till 31.5.1983. There were, however, some notional breaks in the course of that period. He met with an accident on 31.5.1983 in the course of performance of his duties. He was hospitalised at Civil Hospital, Karnal, for a period of about five months. Even that long period of hospitalisation did not enable him to obtain complete cure. The brain injury sustained by him affected his Letters Patent Appeal No.629 of 2009 -2- **** mental balance. Ultimately in the year 1985, he reported for duty in the office of respondent but his reception on duty was declined. In the course of the claim statement filed before the Industrial Tribunal-cum-Labour Court, Panipat (hereinafter referred to as “the Tribunal”), the appellant averred the disallowance of duty to him to be violative of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) inasmuch as no enquiry, at all, into his absence had ever been held. The other plea urged by him, in the context, was that juniors had been retained; while he has been shown the door. He claimed reinstatement with continuanuity of service and back wages for the period of ouster which (period of ouster) was described to be unwarranted. The respondent, in an act of resistance, raised a plea of abandonment of service on account of the long unannounced absence of the appellant. The Tribunal ruled in favour of the appellant and answered the reference upholding entitlement of the appellant to reinstatement, with continuity of service and 50% of the back wages from the date of demand notice dated 10.1.2001. The respondent successfully challenged the order aforementioned in Civil Writ Petition No.17298 of 2003. In the course of the finding, the learned single Judge held that the appellant having last attended duty on 21.5.1983 and demand notice having been served on 10.1.2001, there was inordinate delay in raising of the claim and that delay aforementioned is indicative of the fact that there was no justification at all for the Government to have made the reference to Letters Patent Appeal No.629 of 2009 -3- **** the Tribunal. That finding draws sustenance from the observation in the preceding paras that there existed no industrial dispute which could all be referred to the Tribunal. Qua the retention of the juniors in employment, the learned Single Judge noticed that the appellant had not named any junior (of that category) of his in the claim statement or even in the course of his testimony on oath before the Tribunal. It was held that a mere statement of the above fact would not serve the purpose nor would the onus (to prove it) stand discharged. The last indicated finding was assailed by the learned counsel for the appellant, at the very, outset by contending that the onus to prove the plea (that juniors had been retained) stood discharged with the making of an averment to that effect and it was for the respondent-management to rebut the averment by production of the documented record which was in its possession and to which the appellant had no access. It was on the above premise that the learned counsel, appearing on behalf of the appellant, insisted upon invalidation of the finding recorded by the learned Single Judge. The plea is denuded of merit. The onus to prove a factual plea would always be open the party averring it. Even if the appellant was not in a position to name the juniors who had been retrained in service, it was for him to have requisitioned the relevant employment record from the management to prove that fact. In case the documentation aforementioned had been requisitioned, we could perhaps condone the onus which was heavily cast upon the appellant to name those juniors to him who had been retained in service. The appellant did not, at all, make any endeavour to get Letters Patent Appeal No.629 of 2009 -4- **** that record before the Tribunal. We find the view obtained by the learned Single Judge in that context to be unassailable. It is the further grievance of the learned counsel for the appellant that the finding recorded by the learned Single Judge on point of reference being time barred is invalid firstly because the Act does not, at all, prescribe a period of limitation for making of a reference and, then, also because it was not open to the Tribunal to go into the aspect of the delay because that adjudication fell within the jurisdiction of the Government which could consider it while deciding to refer the dispute to the Tribunal or not. The learned counsel is plainly not on a firmer footing when he raises a plea to 'clothe' the Government with the adjudicatory exercise to determine whether it would refer the matter to the Tribunal or not. If there is an industrial dispute in terms of the Act, the Government cannot go into the question of the delay. An adjudication of that category squarely falls within the ambit of jurisdictional purview of the Tribunal . It is equally illogical to raise a plea that the mere making of reference to the Tribunal would divest the Tribunal of the jurisdiction to take the aspect of delay into consideration while adjudicating upon the reference. Though, we are inclined to agree with the proposition expounded on behalf of the appellant that the Act does not envision a period of limitation, we are firmly of the view that the aspect of inordinate delay in the raising of a claim is an aspect which may validly go into the consideration of validity or otherwise of the claim raised by an employee. In this case, on the own showing of the appellant, he reported for duty in Letters Patent Appeal No.629 of 2009 -5- **** the year 1985. Further plea raised by him is that concerned Administrative Officer did not allow him to join duty. It is not even the averment on behalf of the appellant that he made a grievance of the above fact to any higher authority in writing. In the natural course of things, an employee circumstanced as the appellant would have been expected to document his grievance by taking up the matter with the higher authorities by addressing a registered communication which (addressing of communication) only would have enabled him to prove that fact at a subsequent point of time when the averment may have been denied by the concerned official on facts. It appears fairly unnatural that the appellant opted to retain his grievance in abeyance for as long as about more than 1-1/2 decade. These facts are fully supportive of an inference that the appellant had abandoned the employment by a conscious decision on his part. That inference drawn by the learned Single Judge deserves to be affirmed and we so held accordingly. Dismissed. (S.D.ANAND) JUDGE July 28, 2009 (J.S.KHEHAR) Pka JUDGE