IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.2282 of 2001 S.Sekar .. Petitioner Vs. 1.The Labour Court, Sathuvachary, Vellore-632 004. 2.The Management, The Ambur Coop. Housing Society Ltd., C.2478 Old No.18/B, Oomer Road, Ambur-635 802, Vellore District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the award of the first respondent labour court, Vellore passed in I.D.No.434/94, dated 20.09.2000, quash the same and to direct the second respondent to reinstate the petitioner with full backwages and attendant benefits from 2.6.1986. For Petitioner : Ms.S.Thamizharasi For Respondent : Mr.John for M/s.T.S.Gopalan & Co. for R2 ORDER The petitioner is a workman. He has come forward to challenge the Award passed by the first respondent labour court in I.D.No.434 of 1994, dated 20.9.2000. By the impugned award, the first respondent labour court refused to grant any relief on the ground that there was an inordinate delay in approaching the labour court and that inasmuch as he had come to the labour court after eight years after the order of termination, i.e. 3.12.1986 the dispute was not maintainable in the light of the judgment of the court in 1997 (76) FLR 955. https://hcservices.ecourts.gov.in/hcservices/ 2.The writ petition was admitted on 7.2.2001. On notice from this court, the second respondent has filed a counter affidavit, dated 3.11.2005. It is the case of the second respondent management that the petitioner was removed after a full-fledged enquiry regarding his unauthorised absence and that he was dismissed from service on 3.12.1986. Thereafter he raised a dispute after eight years and the dispute was registered as I.D.No.196 of 1994 by the Additional labour court, Chennai. After formation of the first respondent labour court at Vellore, the same was transferred and was renumbered as I.D.No.434 of 1994. Before the labour court, on behalf of the petitioner, he examined himself as W.W.1 and on the side of the second respondent society, one Sukumar was examined as M.W.1. On the side of the workman, 27 documents were filed and they were marked as Exs.W.1 to W.27. On the side of the management, 24 documents were filed and they were marked as Exs.M.1 to M.24. The labour court framed three issues, i.e. a)Whether the charges against the workman were proved, b)whether the petitioner was guilty of delay and laches in seeking reinstatement and c) whether the workman was entitled for any relief. 3.Before the labour court, both sides agreed that there need not be any preliminary issue and all issues can be tried together. The labour court found that though the petitioner was taking leave without proper medical certificate and his unauthorised absence was found proved, the employer had shown indulgence to him on several occasions. The enquiry report found him guilty and that there was no reason to interfere with the findings. A perusal of Ex.M.6, dated 13.5.1986 which is an explanation submitted by the petitioner shows that the petitioner has admitted his charges and pleaded for leniency. It was also stated in the counter that the petitioner had not attended the office for 42-1/2 days within a period of five months. There was no medical record for the petitioner to justify his absence. The finding of the labour that that reference has to be rejected solely on the ground of delay cannot be accepted in the light of the judgment of the Supreme Court in Karan Singh Vs. Haryana State Marketing Board reported in 2007 (14) SCC 291. In that case the Supreme Court has held that the labour court must answer the reference in terms of Section 10(4) and no dispute can be rejected on grounds of delay and that the labour court has no authority to invalidate a reference. In the present case, apart from observing the long delay made by the workman, the labour court had also gone into the merits of the dispute and answered in negative regarding the relief to be granted to the workman. https://hcservices.ecourts.gov.in/hcservices/ 4.In this context, it is necessary to refer to the decision of the Supreme Court in Assistant Engineer, CAD v. Dhan Kunwar reported in (2006) 5 SCC 481. The following passages found in paragraphs 6,8 and 9 may be usefully extracted below: “6. It may be noted that so far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case. ...... 8. In S.M. Nilajkar v. Telecom District Manager2 the position was reiterated as follows (at SCC pp.39-40, para 17): “17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen3 that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re- employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen3. In Nedungadi Bank Ltd. v. K.P. Madhavankutty1 a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India4 it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would https://hcservices.ecourts.gov.in/hcservices/ certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated some time in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India5 the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal- cum-Labour Court. We do not think that the appellants deserve to be non- suited on the ground of delay.” 9. In the background of what has been stated above, the Labour Court should not have granted relief. Unfortunately, the learned Single Judge and the Division Bench did not consider the issues in their proper perspective and arrived at abrupt conclusions without even indicating justifiable reasons.” 5.The same view was subsequently reiterated in Haryana Land Reclamation and Development Corporation Ltd. v. Nirmal Kumar reported in (2008) 2 SCC 366. 6.In the present case, apart from that fact that the petitioner never explained the delay of more than eight years in coming to the labour court, the labour court had also found that the petitioner was guilty of the misconduct alleged against him. Hence, this court is not inclined to grant any relief. https://hcservices.ecourts.gov.in/hcservices/ 7.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Labour Court, Sathuvachary, Vellore-632 004. Copy to The Section Officer VR Section, High Court, Madras 1 cc to Mr.T.S. Gopalan, and Co, Advocate, SR. 40394 1 cc to Mrs. Thamizharasi, Associates, Advocate SR.40815 W.P.NO.2282 OF 2001 GV (CO) kk 15/6 https://hcservices.ecourts.gov.in/hcservices/