THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3073 OF 2004 DATED 19TH NOVEMBER, 2009 BETWEEN Devendar Jee … Petitioner and The Hon’ble Labour Court-I, Hyderabad, rep. by its Presiding Officer, and another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3073 OF 2004 O R D E R This Court had earlier considered the issues arising in this writ petition in an identical Writ Petition, W.P.No.904 of 2004, which was argued by the very same counsel. However, Sri K.Madhava Reddy, learned counsel for the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’), advanced further arguments relying upon case law, stating that the matter required re-examination. Hence, this exercise. The petitioner claimed that he was appointed as a Cleaner in the APSRTC in December, 1982 and that he was initially paid Rs.750/- per month. He stated that he worked continuously without any break in service till December, 1993 when his services were terminated orally without notice. Claiming that the said termination was in violation of Section 25-F of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’), the petitioner raised an industrial dispute in I.D.No.647 of 2000 under Section 2-A(2) of the Act of 1947 before the Labour Court-I, Hyderabad. By Award dated 15.10.2003, the Labour Court dismissed the petition holding that the petitioner was not entitled to any relief, giving rise to this writ petition. The defence put forth by the APSRTC before the Labour Court was that there was no employer-employee relationship between the petitioner and the APSRTC. It was stated that the petitioner was engaged for washing and sweeping of buses on a piece rate basis during the month of June, 1985. The APSRTC stated that whatever work might have been done by the petitioner was under the aid and advice of the Contractor and not under itself. Stating so, the APSRTC asserted that the question of termination of the petitioner’s services in violation of Section 25-F of the Act of 1947 did not arise. The APSRTC also raised the contention that there was a delay of 9 years on the part of the petitioner in approaching the Court, which clearly showed that he was gainfully employed elsewhere. A reading of the Award passed by the Labour Court, presently under challenge, demonstrates that the Labour Court was of the opinion that in the absence of evidence and proof that the petitioner’s services were engaged through a Contractor, such services assumed the characteristic of services rendered directly to the APSRTC and held that it must be deemed that there was a relationship of employer- employee between the parties. In this regard, the Labour Court relied upon the evidence of the APSRTC’s own witness-M.W.1, who stated that the petitioner worked in the APSRTC depot but had done so under a Contractor. Having said so, the Labour Court then went on to examine whether there was any record to establish that the petitioner worked for a minimum period of one year in the APSRTC. Holding that the record available was insufficient to come to the conclusion that he worked during the period 1986-1991, the Labour Court held that the petitioner was not entitled for any relief and accordingly dismissed the I.D. Relevant to note, the APSRTC in its counter did not raise any dispute with regard to the petitioner failing to render the minimum service of 240 days in a calendar year, as required under Section 25- B(2)(a) of the Act of 1947. This issue had also been considered in Writ Petition No.904 of 2004. In the absence of a pleading and a dispute being raised with regard to this aspect, there was no occasion for the petitioner to demonstrate and prove that he rendered service for 240 days in a calendar year as stipulated in Section 25-B(2)(a) of the Act of 1947, so as to bring into operation Section 25-F thereof. It is no doubt true that had such a dispute been raised, the burden of proof would have been upon the petitioner to prove that he had rendered sufficient service so as to comply with the statutory requirement under Section 25-B(2)(a) of the Act of 1947. In the absence of a pleading on the part of the APSRTC, it was not for the Labour Court to supplement the pleadings of the APSRTC and raise an issue which the APSRTC itself did not choose to raise. On the strength of the pleadings of the parties, the issue of the petitioner working for a minimum of 240 days in a calendar year did not arise and therefore, his so-called failure to establish the said fact cannot be held against him. It is also relevant to note that the petitioner produced in evidence the letter dated 02.02.1991 given by the Mechanical Foreman of the APSRTC’s depot, marked as Ex.W.1 in evidence of his being engaged in service. The APSRTC, on the other hand, stated that the services of the petitioner were engaged in June, 1985 and produced Exs.M.1 to M.9, being the statements relating to the amounts paid to casual workers during June, 1985 and February, 1986. This material would not be sufficient to determine the exact length of service rendered by the petitioner as these documents do not, by themselves, indicate the commencement or completion of the petitioner’s services. Further, in the absence of an issue being raised in this regard, the petitioner was not even called upon to adduce evidence to prove compliance with Section 25-B(2)(a) of the Act of 1947. Therefore, the Labour Court erred in disallowing the petitioner’s claim on a ground which it independently sought to raise and decide in the absence of a pleading by the opposite party. Sri K.Madhava Reddy, learned counsel, would however contend that the delay of 9 years on the part of the petitioner in approaching the Court is fatal to his claim. A similar plea had been raised in Writ Petition No.904 of 2004 and this Court, relying upon the Judgment of the Supreme Court in AJAIB SINGH V/s. SIRHIND CO-OPERATIVE MARKETING-CUM-PROCESSING SERVICES SOCIETY LIMITED[1], opined that as Article 137 of the Limitation Act, 1963, has no application to proceedings under the Act of 1947, the delay, if any, on the part of the workman would not be sufficient reason to deny him relief in totality. Such delay would however be relevant for the purpose of moulding the relief. Sri K.Madhava Reddy, learned counsel, contended that AJAIB SINGH was considered thereafter by the Supreme Court in HARYANA STATE CO-OPERATIVE LAND DEVELOPMENT BANK V/s. NEELAM[2] and that the Supreme Court had watered down the scope and import of AJAIB SINGH. The learned counsel therefore stated the petitioner should be non-suited on the ground of his claim being belated. In AJAIB SINGH, the services of the workman were terminated by the management without complying with the provisions of the Act of 1947. The appropriate Government referred the dispute to the Labour Court which directed reinstatement of the workman. The management challenged the said award before the High Court on the ground that the workman had approached the Court for grant of relief after a prolonged delay. A learned single Judge of the High Court held that the workman was not entitled to any relief as he had slept over the matter for 7 years and had confronted the management at a belated stage when it might have been difficult for the management to prove his guilt. A Division Bench of the High Court upheld the Judgment of the learned single Judge. The matter was accordingly carried before the Supreme Court. It was argued before the Supreme Court that though Article 137 of the Limitation Act, 1963 was not specifically made applicable, the principle incorporated therein should be deemed to be applicable to the case. The Supreme Court adverted to the nature, scope and intent of the Act of 1947 which, it opined, provided for ensuring fair terms to the workman; to prevent disputes between the employer-employees so that the larger interest of the public may not suffer. The Supreme Court accordingly held that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 were not applicable to the proceedings under the Act of 1947 and that relief could not be denied to a workman merely on the ground of delay. The Court further held that the plea of delay, if raised by the employer, is required to be proved as a matter of fact by showing real prejudice and not as a merely hypothetical defence. The Court also held that even in a case where delay is shown to be existing, the Tribunal, Labour Court or Board dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Supreme Court was of the opinion that the workman in that case was entitled to reinstatement with continuity of service, but with restricted back wages. It is to be seen as to what extent the aforestated principles laid down in AJAIB SINGH have been diluted in the later decision of the Supreme Court in NEELAM. Therein, the Supreme Court while observing that the extent to which a relief can be moulded would inevitably depend upon the facts and circumstances obtaining in each case in the context of delay on the part of the workman in raising a dispute, referred to and discussed the judgment in AJAIB SINGH. While agreeing that the Court could not import a period of limitation when the statute did not prescribe the same as observed in AJAIB SINGH, the Supreme Court went on to state that the same did not mean that irrespective of the facts and circumstances of the case a stale claim must be entertained. The Supreme Court observed that the decision of AJAIB SINGH must be held to have been rendered in the fact situation obtaining therein and no ratio of universal application can be culled out therefrom. It is however relevant to note that immediately thereafter, in SHAHAJI V/s. EXECUTIVE ENGINEER, P.W.D.[3], the Supreme Court held that AJAIB SINGH laid down the law correctly. It is relevant to note that in AJAIB SINGH the Supreme Court stated that in the event of delay, real prejudice must be demonstrated. As pointed out by the Supreme Court in ASSISTANT EXECUTIVE ENGINEER, KARNATAKA V/s. SHIVALINGA[4], where there is a serious dispute or doubt about the relationship and the records of the employer become relevant, a long delay may prejudice the employer as it may be impossible for the employer to produce such records. It is however to be noticed that in the present case except for raising the plea of delay, the APSRTC did not plead that it was prejudiced in any manner by such delay. On the other hand, it produced as many as nine exhibits as compared to the single exhibit produced by the petitioner, which amply demonstrates that there was no question of relevant records not being available due to the delay on the part of the petitioner. It was thus neither pleaded nor demonstrated by the APSRTC that any prejudice was caused to it by the delay on the part of the petitioner in approaching the Labour Court. Further, once the Supreme Court held that Article 137 of the Limitation Act, 1963 has no application to the proceedings under the Act of 1947, it is not for this Court to import the principle underlying Article 137 by categorizing the petitioner’s claim as a stale or belated one. As pointed out in AJAIB SINGH, the delay on the part of the workman would be taken into account while moulding the relief and cannot, by itself, be a ground for denying the claim of the workman in entirety. I therefore see no reason to deviate from the view taken by me in Writ Petition No.904 of 2004. Given the facts and circumstances of the present case, taking into account the fact that there is considerable delay on the part of the workman in approaching the Labour Court; and also keeping in mind the fact that he was out of the service of the APSRTC through out, the ends of justice would be sufficiently served by directing the APSRTC to appoint the petitioner-workman afresh in the same capacity that he worked earlier. He would however not be entitled to any back wages, continuity of service or other attendant benefits. In the result, the writ petition is allowed in part. There shall be no order as to costs. ---------------------------- SANJAY KUMAR, J. ______ November, 2009. PGS THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3073 OF 2004 ______ November, 2009. [1] AIR 1999 SC 1351 [2] 2005 (2) Supreme 314 [3] (2005) 12 SCC 141 [4] (2002) 10 SCC 167