C.W.P.No.16607 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.16607 of 2008 Date of Decision:- 30.03.2009 State of Punjab and others ....Petitioner(s) vs. Gurwinder Singh and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Ms.Monica Chhibber Sharma, AAG, Punjab for the petitioner. Mr.Ravinder Joshi, Advocate for respondent No.1. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the award dated 28.3.2008 (Annexure P-8) passed by the Labour Court, Bathinda vide which the reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and 30% back wages with effect from the date of demand notice i.e. 17.10.1995. Counsel for the petitioner-State contends that as per the assertion made by workman- respondent No.1, he was initially appointed as Gauge Reader on 22.12.1982 and was drawing a salary of Rs.600/- per month. His services were terminated on 8.9.1986 when he was working as a Gauge Reader in Bathinda, Sub Division. She submits that as per the assertion of the workman his date of termination was 8.9.1986 and the C.W.P.No.16607 of 2008 -2- demand notice was preferred by the workman on 17.10.1995 and, therefore, there is a delay of more that 9 years in making such statement. No explanation whatsoever is forthcoming from the side of the workman except the one that he (the workman) had fallen ill for which he had submitted his application for medical leave but it was turned down by the Management, whereafter, he had been writing letters time and again to his immediate Bosses and Head Office but with no response. She submits that nothing has been brought on record with regard to his assertion about his falling ill or having applied for medical leave and in any case, if it was applied for, it is his admitted case that the said application was not accepted by the Management. There being a delay of more than 9 years from the alleged date of his termination, it cannot be said that the dispute, much less an industrial dispute, existed when the reference was made to the Labour Court by the Appropriate Government. Counsel relies upon a judgment of the Hon'ble Supreme Court in the case of Chief Engineer, Ranjit Sagar Dam and another vs. Sham Lal, 2 006 (9) S.C.C.124 wherein the Hon'ble Supreme Court has held that reference under Section 10 of the Act, if is belated, cannot be entertained and referred to by the Appropriate Government. After a lapse of long time of 4-5 years, no industrial dispute can be said to be existing for which a reference can be made under Section 10 of the Act. Counsel further relies upon a judgment of the Hon'ble Supreme Court in the case of Nedungadi Bank Ltd. vs. K.P.Madhavankutty and others, (2000) 2 Supreme Court Cases 455 which again lays down the same principle that due to the efflux of time, no industrial dispute can be said to have been existing as the claim would be a stale claim which would not call for reference by the Appropriate C.W.P.No.16607 of 2008 -3- Government. Further contention of the counsel for the petitioner is that even if the findings as recorded by the Labour Court to the extent that the enquiry was not held against the workman, is not correct. However, the stand of the Management has all through been that the workman had abandoned his job and for that purpose, ample evidence had been produced before the Labour Court justifying its stand. She contends that under Section 11-A of the Act, even if no enquiry is held against the workman then also, it is open to the Management to prove the misconduct or justify its order terminating the services of the workman. The Labour Court in its award has stated that indeed efforts were made by the Management to call upon the workman to participate in the proceedings but the workman failed to do so before the Inquiry Officer. However, in view of the fact that the Management witness has said that no Inquiry Officer was appointed, the enquiry proceedings could not be said to have been held in accordance with law but nevertheless the assertion of the Management that the workman had abandoned the job, stands proved. On these basis, counsel for the petitioner submits that the impugned award cannot be sustained. On the other hand, counsel for the respondent-workman contends that once a finding has been recorded by the Labour Court that no enquiry was held against the workman, the alternative stand of the Management cannot be accepted which only proves that the Management had called upon the workman to participate in the enquiry proceedings. It does not prove that the workman had abandoned the job as he had justifiable reasons for not attending the enquiry proceedings or the job as he had fallen ill, on account of which he had made an application for medical leave which although had been rejected by the Management but the said C.W.P.No.16607 of 2008 -4- absence was justified on behalf of the workman. On the question of delay again, counsel for the petitioner submits that due to ill health, the workman was unable to put-forth his demand notice prior to the date when he had, as a matter of fact, submitted the demand notice. I have heard counsel for the parties and have gone through the records of the case besides the impugned award. A perusal of the impugned award would show that the workman had been called upon on various occasions to join the proceedings and to explain his absence from duty. The workman absented wilfully from duty without any leave and a notice dated 15.6.1987 to that effect was initially sent to him. A charge-sheet was framed and issued/sent to the workman on 28.7.1987, under registered envelop which was received back undelivered as the workman was not found at the given address. Thereafter, the Department issues notices in Punjabi Tribune dated 30.9.1987 directing the workman to explain his absence before respondent No.2-Executive Engineer, Canal Division, Bathinda but the workman failed to turn up. On this basis, it was proved that workman had abandoned his job and, therefore, the order of termination dated 3.11.1987 was passed against the workman. Counsel relies upon PWD Code 1.129 (7) which reads as follows:- “Members of the work-charged establishment, other than Road Inspector, who are engaged on the footing of monthly servants will be subject to discharge of 10 days' notice except in the case of serious misconduct or gross inefficiency (sic) (when no notice will be given), or on payment of pay for 10 days or for such period up to this extent as may be due to them in lieu of notice. Should C.W.P.No.16607 of 2008 -5- they desire to resign they will be required to give 10 days' notice or forfeit pay for this period or for such period up to this extent as may be due to them in lieu of notice.” According to this Code, the services of the workman could be terminated and accordingly the same has been done. The judgment of this Court in the case of State of Punjab and others vs. Jit Singh 1997 (2) RSJ 349 directly applies to this case. The contention of the counsel for the respondent has been that this ground was not taken before the Labour Court and, therefore, cannot be agitated now at this stage. This contention cannot be accepted as the same is a statutory rule governing the service which can be looked into by the Court while adjudicating the matter. That being the case, it stands clearly established that the workman had abandoned his job. The factual position with regard to the delay in making the demand and claiming an industrial dispute has not been disputed. As per the assertion of the workman, his services were terminated on 8.9.1986. The demand notice is dated 17.10.1995. The delay is apparently of more than nine years. No explanation whatsoever has come on record which can be said to be justifiable for not approaching or claiming the dispute within a reasonable time before the Appropriate Government. The principles as enunciated by the Hon'ble Supreme Court in the case of Nedungadi Bank Limited Case (supra) and Chief Engineer, Ranjit Sagar Dam and another's case (supra), would be fully applicable to the present case. There is a lapse of more than 9 years in making a demand to the Appropriate Government. Therefore, by no stretch of imagination it can be said that a dispute could exist after such a long delay, moreso when no cogent reasons C.W.P.No.16607 of 2008 -6- have come forth explaining the delay in making the demand notice. The stale claims cannot be said to form the basis of an industrial dispute and as a matter of fact, no industrial dispute can be said to have existed after a long period of 9 years from the date of termination. Thus, relying upon the ratio of the judgments, referred to above on the question of delay, the writ petition deserves to be allowed on this ground alone. In view of the above, the present writ petition is allowed. The impugned award dated 28.3.2008 (Annexure P-8) passed by the Labour Court, Bathinda is hereby set aside. March 30, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No