IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.3999 of 2004 and W.P.M.P.No.4722 of 2004 and W.V.M.P.No.1935 of 2006 and W.P.M.P.No.18343 of 2006 The Management, Pudupalayam Primary Agricultural Co-operative Bank, Rep. by its Special Officer, R.Pudupalayam Post, Rasipuram Taluk, Namakkal District. ... Petitioner Versus 1.The Presiding Officer, Labour Court, Salem. 2.N.Balakrishnan ... Respondents Writ Petition is filed under Article 226 of Constitution of India praying for the issue of Writ of Certiorari to call for the records of the 1st respondent made in I.D.No.264 of 2000 dated 18.03.2003 and quash the same. For Petitioner : Mr.M.S.Palaniswamy For Respondent 2 : Mrs.Rita Chandrasekaran for M/s. Aiyar & Dolia ORDER The present Writ Petition is directed against the award dated 18.03.2003 passed by the Labour Court in I.D.No.264 of 2000 on the ground that the Labour Court has committed serious mistake in not only entertaining the above delayed and stale claim, but even without considering whether the 2nd respondent was appointed in accordance with the rules and other recruitment process, directed https://hcservices.ecourts.gov.in/hcservices/ the petitioner management to pay the backwages for 13 years. 2. The learned counsel for the petitioner submits that, the 2nd respondent/N.Balakrishnan was appointed as Salesman in the petitioner bank's Public Distribution Shop for selling kerosene on daily wage basis to the ration card holders and that he was appointed without following the principles laid down under Rule 149 of the Tamil Nadu Co-operative Societies Rules. He ceased attending duty in August 1997 and got employed elsewhere. But, all of a sudden, after a lapse of 13 years, when he approached the 1st respondent/the Presiding Officer, Labour Court, Salem, the stale claim preferred by the 2nd respondent was allowed by the 1st respondent by award dated 05.08.2002 by directing the petitioner management to reinstate the 2nd respondent herein with full backwages. 3. The learned counsel for petitioner submits that the Labour Court ought not to have entertained the Claim Petition which is hopelessly barred by time, that too after a period of 13 years. Further, in support of his submission, he also relied upon a Judgment of the Hon'ble Apex Court reported in (2009) 13 SCC 746 (State of Karnataka and Another Vs. Ravi Kumar) wherein the Apex Court, while dealing with a stale claim of 14 years, has held that it is not possible to expect the Assistant Executive Engineer to prove, after 14 years, that the daily wager did not work or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. Further, it has also been repeatedly held by the Apex Court that the stale claim should not be referred since the same has to be done within a reasonable period. In respect of the merits of the claim made by the 2nd respondent before the Labour Court, learned counsel for the petitioner has also taken support of the Judgment of this Court reported in 2002 (4) CTC 385 (L.Justine and Another Vs. The Registrar of Co- operative Societies and Others) wherein this Court has held that mere completion of 480 days of service cannot make employees permanent under the Permanency Act, 1981, when appointment itself is illegal and unauthorised, when a person is not appointed through the Employment Exchange by following the Recruitment Rules. On this basis also, the learned counsel appearing for the petitioner sought quashing of the impugned order passed by the Labour Court. 4. While rebutting the above submissions, learned counsel appearing for the 2nd respondent submits that the petitioner had not even taken a plea of delay before the Labour Court and after allowing the Labour Court to pass an order by giving direction to the petitioner management to reinstate the 2nd respondent, it is not open to the petitioner management to re-open the plea of delay before this Court under Article 226 of the Constitution of India. In her further submission, she urged that the 2nd respondent who was https://hcservices.ecourts.gov.in/hcservices/ issued with a proper appointment order worked about for one year as a casual employee by selling kerosene to the card holders but, all of a sudden in August, 1997, he was refused employment by the petitioner management. Therefore, he was driven from pillar to post during the last 13 years in search of getting back of the employment. Therefore, there is a delay of 13 years in approaching the Labour Court. In any event, the petitioner management did not take up the issue of delay before the Labour Court and, therefore, it is not open to the petitioner to urge the point before this Court and on that basis prayed for dismissal of the Writ Petition. 5. Heard, the learned counsel on both sides. 6. Prima facie, it appears that the 2nd respondent was appointed as a Salesman in the Petitioner bank's Public Distribution Shop on daily wage basis. Though he was engaged as a daily wage employee, admittedly, he was not employed through Employment Exchange or by following any recruitment process. When the petitioner was not in employment in the month of August 1997, as rightly contended by the learned counsel appearing for the petitioner, even if it is presumed that the 2nd respondent is denied employment by the petitioner bank, the 2nd respondent ought not to have waited for 13 years for raising the claim before the Labour Court under Section 25(f) of the Industrial Disputes Act, on the ground that he was dismissed from service. Even if the petitioner management fails to take up the plea of stale claim of the 2nd respondent, in my considered opinion, the Labour Court, while considering the claim of both sides, should have seen that the claim of the 2nd respondent was hopelessly barred by time. Therefore, as has been held by the Apex Court in the Judgment reported in (2009) 13 SCC 746 (supra) the 1st respondent should not have entertained the stale claim of the 2nd respondent, which is barred by delay of 13 years. 7. Therefore, for the above said reasons, the award passed by the Labour Court, is liable to be set aside and accordingly, the same is set aside. The Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst Registrar /True Copy/ Sub Asst Registrar https://hcservices.ecourts.gov.in/hcservices/ smn To The Presiding Officer, Labour Court, Salem. +1 CC to M/S.PalaniSwamy, Advocate Sr.No.21263 +1 CC to M/S. Aiyar & Dolia Advocate Sr.No.20949 W.P.No.3999 of 2004 (CO-VS) THS : 19.04.2010 https://hcservices.ecourts.gov.in/hcservices/