C.W.P. No.227 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.227 of 2001 Date of Decision: 15.09.2009 Dalbara Singh .....Petitioner Versus The Presiding Officer, Labour Court, Patiala and others ...Respondents Present: Mr. K. L. Arora, Advocate with Ms. Deepa Jain, Advocate for the petitioner. Ms. Monica Chhibbar Sharma, DAG, Punjab. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest?No -.- K. KANNAN J. 1. Faced with the rejection of a reference sought by the workman on the ground that he had been unlawfully terminated from service, the workman challenges the award of the Labour Court by means of this writ petition. 2. The contention of the petitioner is that he was working as a Chowkidar in the Food and Supplies Department under the control of the District Controller, Sangrur from 01.02.1982 and worked as such till 14.12.1987. He had been unlawfully terminated from service on 15.12.1987. He had raised an industrial dispute in the year 1992 but he had the reference withdrawn on account of a technical flaw that the actual date of termination had not been mentioned and issued a fresh C.W.P. No.227 of 2001 -2- demand that resulted in a reference to the Labour Court again in the year 1996. On an admitted premise that the demand notice and the reference when it was made even for the first time to the Labour Court had been made after three years from the date of termination of service, the Labour Court found that although the termination was unjustified, the workman was not entitled to any relief since the claim was barred by limitation and found to be not maintainable. 3. Learned counsel appearing for the workman refers to a decision of the Hon'ble Supreme Court in Karan Singh Vs. M/s Executive Engineer, Haryana State Marketing Board 2007(4) SCT 328 that held that a Labour Court has no power to invalidate a reference on the ground of delay alone. If the employer would state that the workman had made a stale claim, the employer must challenge the reference by way of a writ petition. If he had chosen not to do so, the Labour Court would not itself reject the claim on the ground of limitation. Learned counsel also refers to a decision of the Hon'ble Supreme Court in Ajaib Singh Vs. The Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. and another 1999 LIC 1435 that provisions of Article 137 of the Limitation Act were not applicable. In that case, the Court dealt with a case of reference of a dispute before the Labour Court after 7 years when the Court said that it might in such cases mould the relief to either deny back wages or order only a portion of the same. Learned counsel appearing for the State joins issue on the aspect of limitation and relies on yet another judgment of the Hon'ble Supreme Court in U.T. State Road Transport Corporation Vs. Babu Ram 2006(3) SCT 486 that held that no C.W.P. No.227 of 2001 -3- formula of universal application could be laid down as to the limitation for making a reference. It should still be made within a reasonable time and belated claim would not be entertained and referred by the appropriate Government. A lapse of a long period of 4 to 5 years, the Court held that in that a case would result in the workman losing the remedy under the Act. The Hon'ble Supreme Court also held that the Court must decide the issue as to justification of delay and it was for the workman to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. 4. The position of law would seem, therefore, that the Industrial Disputes Act itself was not laid down any period of limitation and therefore, it would be inappropriate to nullify the benefits of the Act for the only reason of delay. Whenever, there is a delay, the Court shall the examine the cause for delay and would expect the workman to explain such a cause. The delay, if it is found unacceptable, it would be considered for moulding the relief which a workman seeks for. If the delay has been occasioned due to the fault of the workman and the delay is not explained and the relief itself has become stale by the passage of time, the Court shall not grant any relief. 5. Assessed on the touchstone of the proposition derived from the decisions referred to above, it would seem that the Labour Court was unjustified in rejecting the case as not worthy of consideration at all and that the claim of the workman was not maintainable. I reverse the finding and hold that the claim was certainly maintainable, the C.W.P. No.227 of 2001 -4- delay having been explained and that further having regard to the fact that the management witness had specifically admitted in evidence that the workman had completed 240 days of service. The necessary inference for the non-compliance of Section 25-F of the Industrial Disputes Act is that the termination is bad in law. 6. The most relevant point for consideration in such a case would be whether the workman would be entitled to reinstatement and back wages. It has been repeatedly held that reinstatement shall not be granted merely because it is lawful to do so. Vide Jaipur Development Authority Vs. Ramsahai and another (2006) 11 SCC 684; Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408; Kanpur Electricity Supply Company Limited Vs. Shamim Mirza (2009) 1 SCC 20. The issue will, therefore, depend on the nature of employment, the availability of work, the number of years that the workman had put in and the length of litigation etc. It has been brought on record through the written statement on behalf of the management that there was three categories of Chowkidars. The first category of the regular Chowkidar was against sanctioned strength on regular scales of pay, the second category belonged to temporary Chowkidars who were recruited through Employment Exchange and drawing emoluments equal to regular Chowkidars and the third category belonged to daily rated workmen who were drawing fixed daily wages and the strength of the workforce determined on increase and decrease of stock of foodgrains. The service of a daily rated Chowkidar was reported to be dispensed with, on any workman C.W.P. No.227 of 2001 -5- becoming surplus. The contention of the management was that the department had been entrusted with the work of procuring foodgrains for central pool of the Government of India and that the workman had been employed as a daily rated worker for immediate works and when his services were not any longer required, he was terminated. Learned counsel appearing for the workman would state that there was no proof that he had been rendered surplus and that another workman who had been retrenched at the same time was ordered to be reinstated by the Labour Court and over a period, his services have also been regularized. 7. When the issue of reinstatement is undertaken, the workman shall only canvass for the rights of the particular facts disclosed before the Court. In this case, in view of the stand taken that the services of the workman were terminated only by virtue of the then situation that he had been rendered surplus and that further the services were obtained under circumstances which required deployment of workman for carrying out the work of collecting and despatching foodgrains to a central pool set up by the Government of India, it shall not be possible to provide for the relief of reinstatement. Admittedly, the workman had worked for a period of nearly three years and his services could not have been terminated without resort to Section 25-F of the Industrial Disputes Act. In my view, the appropriate relief for non-compliance of the statutory provisions shall be to compensate the workman which is determined at Rs.50,000/-. This amount shall be paid within four weeks from the date of receipt of copy of the order failing which amount shall attract interest @9% per annum. C.W.P. No.227 of 2001 -6- 8. The award of the Labour Court is, under the circumstances, set aside and the writ petition is allowed granting only relief of compensation of Rs.50,000/-. There shall, however, be no direction as to costs. (K. KANNAN) JUDGE September 15, 2009 Pankaj*