CWP No.15351 of 2008 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.15351 of 2008 Date of Decision: 01 – 09- 2008 Bimal Singh ....Petitioner v. Presiding Officer, Industrial Tribunal-cum- ....Respondent Labour Court, U.T., Chandigarh and another CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.S.S.Sudan, Advocate for the petitioner. *** KANWALJIT SINGH AHLUWALIA, J. Present petition has been filed by Bimal Singh petitioner- workman against the Executive Engineer (Projects) Public Health Division No.2, Sector 11, Chandigarh (hereinafter to be called as, `the management'). The petitioner-workman is aggrieved against the award dated 11.2.2008 passed by the Labour Court, U.T., Chandigarh whereby prayer of the petitioner-workman for reinstatement into service with back wages has been declined. The Labour Court declined the relief to the petitioner-workman on two counts. Firstly, it has been held that there has been in-ordinate delay to issue the demand notice and thus, industrial dispute has become stale. Para 10 of the award reads as under:- “10. The second most important question which confront this CWP No.15351 of 2008 [2] court is as to whether the services of the workman were terminated or he had abandoned his job. Admittedly, he was a daily wager, if this plea of the workman that his services were terminated in January, 1993 is believed in that case there is absolutely no explanation for his remaining silent for such a long period of more than three years, when he firstly issued the demand notice on 16th April, 1996. On that demand notice conciliation proceedings were initiated. The file of the conciliation proceedings has been produced by Shri P.K.Dabra, Clerk, Labour Department. The perusal of the file shows that the workman was given opportunity to explain the delay in issuing the demand notice which he failed to explain. It appears that even after issuing the demand notice the workman did not make any attempts to pursue the same and again remained silent for another period of about five years, when he issued second demand notice dated 17th July, 2001, on the basis of which present reference has been made. This fact is not believable that the services of the workman were terminated in the year 1993 and he would initially remain silent for period of more than three years and then for another period of about 5 years. This rather strengthens the plea of the respondent management that in fact the workman had abandoned his job. In case the job of the workman had been terminated, he would not have remained silent for such a long period and would have insisted, by making representations, to allow him to resume his duties.” CWP No.15351 of 2008 [3] Secondly, it was held by the Labour Court that the petitioner-workman was a daily wager. He was not employed in pursuance of any advertisement. His name was not requisitioned from the Employment Exchange. Therefore, a daily wager cannot claim public appointment without proper selection. We find that the view taken by the Labour Court on both the counts is just, appropriate and warrants no interference. Hon'ble Apex Court in Haryana State Co-op. Land Development Bank v. Neelam, AIR 2005 SC 1843 relied upon Nedungadi Bank Ltd. v. K.P.Madhavankutty, AIR 2000 SC 839 and held as under:- “17. In Nedungadi Bank Ltd. (supra) a Bench of this Court, where S.Saghir Ahmad was a member (His Lordship was also a member in Ajaib Singh (supra) opined: “6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. CWP No.15351 of 2008 [4] As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made......” 18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub silentio. The Respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time.......” Therefore, the Labour Court has rightly held that in-ordinate delay on the part of the petitioner-workman dis-entitles him from any relief. The petitioner-workman could not be reinstated in view of judgment of the Hon'ble Supreme Court in State of Karnataka and others v. Umadevi and others, (2006)4 SCC 1. CWP No.15351 of 2008 [5] We find that the view taken by the Hon'ble Supreme Court in Municipal Council, Samrala v. Raj Kumar, (2006)3 SCC 81 is that unless an employee is appointed as per rules and regulations, his appointment cannot be treated to be consistent with Articles 14 and 16 of the Constitution. Appointment given de hors the rules and regulations is liable to be termination and is covered under Section 2(oo)(bb) of the Act and thus, does not amount to retrenchment. Similarly, in Gangadhar Pillai v. Siemens Limited, (2007)1 SCC 533, Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007)1 SCC 408, Reserve Bank of India v. Gopinath Sharma and another, (2006)6 SCC 221 and UP Power Corporation Ltd. and another v. Bijli Mazdoor Sangh and others, (2007)5 SCC 755, it has been held that reinstatement of a workman in public employment will not be consistent with Article 14 unless a workman had been appointed by following rules and regulations. On the second count also the petitioner- workman is not entitled to any relief. Hence, there is no merit in the present petition and the same is dismissed. ( HEMANT GUPTA ) ( KANWALJIT SINGH AHLUWALIA ) JUDGE JUDGE September 01, 2008. RC