C.W.P.No.19571 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.19571 of 2007 Date of Decision:- 24.03.2009 Omax Auto Ltd. ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Pawan K.Mutneja, Advocate for the petitioner. Ms.Kirti Singh, AAG, Haryana. Mr.Pankaj Jain, Advocate for respondent No.3. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the order dated 15.12.2006 (Annexure P-9) wherein the Appropriate Government has made reference of the dispute allegedly raised by respondent No.3-workman by making a representation to the Government and in pursuance thereto, notice has been issued by the Industrial Tribunal-cum-Labour Court to the petitioner-Management as well as the workman. It is the contention of the counsel for the petitioner that the services of respondent No.3-workman were terminated vide order dated 28.10.1987. A demand notice was served by the workman-respondent No.3 on 30.12.1987. On consideration of the said demand notice, the C.W.P.No.19571 of 2007 -2- Appropriate Authority declined the same vide its order dated 8.9.1988 on the ground that a criminal case is pending against the workman involving act of violence. Representation dated 14.8.1993 was preferred by the workman against order dated 8.9.1988 which again was considered by the Appropriate Government and declined on the same ground on 2.9.1993. Thereafter, the workman challenged these orders declining his reference by way of preferring Civil Writ Petition No.12903 of 1993. The said writ petition was decided by a Division Bench of this Court vide order dated 3.8.1994 holding therein that there was no explanation, much less satisfactory, which has been furnished for the inordinate delay of six years in approaching the Court against the order declining the reference. It was further observed that the industrial disputes cannot be allowed to be raised after such long delays as that would frustrate the very purpose of the Act and unsettle the arrangements which the employer may have made during that period. According to the workman, on 20.11.1996, he was exonerated in the criminal proceedings initiated against him. Thereafter, he preferred a representation before the Appropriate Government, which according to the petitioner is dated 30.3.2002, to which reply was submitted by the Management on 18.12.2002. Thereafter, the appeal dated 10.9.2003 was preferred by the workman which came to be decided by the Appropriate Government and the said decision was conveyed on 31.3.2004. Against that order, the workman preferred representation dated 18.7.2006 which was also rejected by the Appropriate Government vide its order dated 24.8.2006 on the ground that the representation was made after a delay of 6 years and 10 months and there is no explanation for making the representation after such a long delay. Thereafter, vide order dated C.W.P.No.19571 of 2007 -3- 15.12.2006 (Annexure P-9), the Appropriate Government while exercising its powers under Section 10 of the Act has referred the dispute which reads as follows:- “Whether the termination of services of Sh.Rajender Kataria is justified or not? If not, then what relief is the workman entitled to?” Learned counsel for the petitioner on the basis of this factual aspect, which is not in dispute, submits that as a matter of fact, after such a long delay, it cannot be said that an industrial dispute exists. He relies upon the judgments of the Hon'ble Supreme Court in the cases of National Engineering Industries Ltd. vs. State of Rajasthan and others, (2000) 1 Supreme Court Cases 371 and Nedungadi Bank Ltd. vs. K.P.Madhavankutty and others, (2000) 2 Supreme Court Cases 455 wherein the Hon'ble Supreme Court while considering the aspect of delay has held that with the passage of time, the disputes in the given circumstances would be rendered as stale and it may not be said that still an industrial dispute subsists. On the other hand, counsel for the respondent-workman contends that this Court while exercising its powers under Article 226 of the Constitution of India would not interfere in the impugned order as the order of reference while exercising powers under Section 10 of the Act, is in the nature of administrative character and the Court cannot sit in appeal on the reference made by the Appropriate Government. He further contends that it would be a matter of investigation which would depend upon the facts of the case on the basis of the evidence led by the parties which ultimately would be better dealt with and decided by the Labour Court to which the C.W.P.No.19571 of 2007 -4- reference has been made. He has relied upon a judgment of the Hon'ble Supreme Court in the case of Harnam Singh vs. Punjab State Electricity Board, (2001) 10 Supreme Court Cases 526. I have heard counsel for the parties and gone through the records of the case with their able assistance. The facts as stated above leave no manner of doubt that the claim as made by the workman in his demand notice is highly belated. The services of the workman were terminated on 28.10.1987. On his demand, for reference of the dispute to the Labour Court, the Appropriate Government initially declined the reference on 8.9.1988 and thereafter, on 2.9.1993 although on the ground of criminal proceedings being pending against him but the said order having been challenged by the workman in C.W.P.No.12903 of 1993 and the same having been dismissed by this Court vide its order dated 3.8.1994 only on the ground of delay of more that six years in approaching this Court, the fate as far as the claim of the workman stood sealed. However, as per the workman, since the ground for rejecting his earlier demand was the pendency of the criminal proceedings against him and the same having culminated in acquittal of the workman on 20.11.1996, he preferred a representation in the year 2002 which also on consideration by the Appropriate Government was initially rejected vide its order which was communicated on 31.3.2004. It may not be out of way to mention here that the first representation which has been produced on record and referred to is of the year 2002 and his acquittal as per the admitted position was in the year 1996. Again, there is a delay of six years in approaching the Appropriate Government. The things do not end here. A further representation was made by the workman dated 18.7.2006 that too after a C.W.P.No.19571 of 2007 -5- delay of two years, which again came to be considered and rejected by the Appropriate Government vide order dated 24.8.2006 on the ground of delay of six years and ten months The Government has abruptly referred the demand holding it to be an industrial dispute vide its order dated 15.12.2006. This clearly indicates that the non-application of mind by the Appropriate Government while making a reference which it had itself considered on earlier four occasions and rejected on the last occasion i.e. on 24.8.2006 specifically on the point of delay. In any case, the dispute, if any, came into existence when the services of the workman were terminated on 28.10.1987 and at this belated stage, after a period of almost 19 years the reference has been made by the Government which would be contrary to the judgment of this Court in Civil Writ Petition No.12903 of 1993 wherein this Court had on the question of delay dismissed the writ petition preferred by the workman. The judgments, as relied upon by the counsel for the petitioner, would come into play with regard to the questions of the industrial dispute still existing or the same having been rendered as stale and non-existent as on date. The judgment relied upon by the counsel for the respondent with regard to non-exercise of the constitutional powers under Article 226 of the Constitution of India as the matter being administrative in character cannot be disputed with but in the given facts and circumstances of the case where there is total non-application of mind, it would be just and appropriate if a direction is issued to the Appropriate Government to reconsider the matter in the light of the factual position, which has not been disputed by the parties, and the law as settled by the Hon'ble Supreme Court. In view of what has been held above, the impugned order dated C.W.P.No.19571 of 2007 -6- 15.12.2006 (Annexure P-9) passed by the Appropriate Government is hereby quashed. A direction is issued to respondent No.1 to reconsider the matter in the light of the observations made here-in-above and pass appropriate orders in accordance with law within a period of two months from the date of receipt of copy of this order. March 24, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No