CWP No.9934 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.9934 of 2008 DATE OF DECISION: May 30, 2008 UNION OF INDIA ...PETITIONER VERSUS CENTRAL GOVERNMENT INDUSTRIAL ...RESPONDENTS TRUBUNAL-CUM-LABOUR COURT-II, CHANDIGARH AND ANOTHER CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. PRESENT: MR. NITIN KUMAR, ADVOCATE FOR THE PETITIONER. KANWALJIT SINGH AHLUWALIA, J. This petition has been filed by Union of India through Divisional Personnel Officer, Northern Railway, DRM Office, New Delhi seeking quashing of the impugned order dated 1.5.2006 (Annexure P-6), passed by the Labour Court, Chandigarh, whereby application filed by the workman-respondent No.2 was allowed and he was ordered to be paid Rs.5133.30 within a period of three months, failing which he was held entitled to interest on the said amount at the rate of 9% per annum from the date arrears become due to him. Briefly stated, Circular (Annexure P-1) was issued by the Railway Board in July, 1973, regarding employment of casual labour on Railways. This Circular was based on the recommendation made by the Railway Labour Tribunal, 1969, which recommended that in respect of casual labour maximum service for earning temporary status should be fixed CWP No.9934 of 2008 -2- at 4 months instead of 6 months. The following was the recommendation: “4.26(4)(i) The period of maximum service for earning temporary status should be fixed at four months instead of six” Circular (Annexure P-1) envisaged that recommendations had been accepted by the Government and it was decided by the Railway Board that casual labour other than those employed on Projects should be treated as ‘temporary’ after the expiry of 4 months continuous employment instead of 6 months. Respondent No.2-workman Net Ram instituted an application (Annexure P-2) under sub Section (2) of Section 33-C of Industrial Disputes Act before the Presiding Officer, Labour Court (Central), Chandigarh wherein it was stated that he was appointed as Khalasi on 1.7.72, and was working at Northern Railway, Rohtak (at Bahadurgarh). It was further submitted that he was entitled to temporary status as workman and ought to be paid wages admissible to Khalasi/Gangman of the Railway on completion of 120 days of service. It was also submitted in the application (Annexure P-2) that he is entitled to recover from the Railways the arrears of pay and allowances, i.e. the difference between the daily wages rate and the revised pay scale salary for the period from 1.11.72 to 14.11.75. The following calculation was submitted by him before the Labour Court:- “That the approximate calculation of the amounts due to him is as under:- Arrears for the period from 1.11.72 to 14.11.75 @ Rs.250/- per month Rs.9000/-“ CWP No.9934 of 2008 -3- On behalf of the Management of Northern Railways written statement (Annexure P-3) was filed in which it was stated that the application was not maintainable as the workman had approached after 22 years. Furthermore, the old record had been destroyed and no record is available with the Management. Rajbir Singh, Assistant Divisional Engineer, Northern Railway, Rohtak submitted an affidavit (Annexure P-5) in evidence. In the affidavit he admitted that the respondent-workman was working as casual labour from 15.3.73 to 14.11.75. He further stated that record is not available with the Department for this period and the claim has been filed after 22 years. Central Government Industrial Tribunal-cum-Labour Court adjudicated the rival submissions made and held that once the Management had admitted that the workman had served the Management from 15.3.73 to 14.11.75., for a period of more than 120 days, then he should be granted temporary status and held the workman entitled to payment of Rs.5133.30. The Labour Court also took into consideration submissions of both Management and the workman regarding delay of 22 years in instituting the application. Whereas, the Management stated that claim is belated, the workman stated that he is again and again approaching the Management but the Management had not paid any heed to his claim. The Labour Court held that while exercising the powers under Section 33-C of the Industrial Disputes Act, it discharges the function primarily as an Executing Court. It also took into consideration that the Management had acknowledged the claim of the workman from time to time and observed as under:- “But it is also a fact that the Management by their letter No.220-E/199/XII-A/EF 10th of March 1989, acknowledged the CWP No.9934 of 2008 -4- claim of the workman and by another letter referred to in the copy of letter No.E(NG-II/89/CL/RDSO/13 dated 14th February 1989. The workman has filed the present application within a period of 5 years after the issuance of those letters. Secondly it is an admitted case of the parties that the workman is in the employment of the management till date. In his supplementary pleadings dated 17th of January 1996, he has claimed that he had been claiming the arrears of DA repeatedly from the Management verbally through his immediate officers, but they did not bother for it. This assertion of the workman has not been rebutted by the Management, either in the affidavits of their witnesses of by putting questions to the workman, when he appeared as a witness in the case. I am, therefore, of the opinion that there is no delay in making the application and whatever delay is there, has been properly explained. Otherwise also the law of limitation does not apply to the proceedings under the Act. Moreover, it is a case of workman who is continuously serving the Management and getting his wages.” Learned counsel appearing for the petitioner placed reliance on a judgement of Division Bench of Delhi High Court (Annexure P-8). We have gone through the judgement of Delhi High Court (Annexure P-8). It is distinguishable as the same was filed against the order of Central Administrative Tribunal, Principal Bench, New Delhi and before the Delhi High Court it was stated by the petitioner-Management that they are not CWP No.9934 of 2008 -5- adverse to the grant of arrears of pay from the date that casual labour ought to have been given temporary status after they have worked for 120 days continuously but it was prayed therein that the same relief could not be granted in absence of any material or documentary proof. In the present case situation is different. Here evidence was led before the Labour Court. The Labour Court has returned a finding of fact based on evidence, whereas no such finding of fact was returned by the Central Administrative Tribunal. Taking that into consideration, Delhi High Court has observed that the Central Administrative Tribunal should have been very careful while issuing ex-parte final directions, therefore also, we hold that the judgment of Delhi High Court relied upon by the petitioner-Management is not applicable. In the present case, the impugned order (Annexure P-6) was passed by the Labour Court on 1.5.2006. The present writ petition has been preferred in this Court on 19.5.2008. Learned counsel for the Management has been unable to explain as to why the present writ petition has been filed after 2 years of the passing of the impugned order. No explanation has been furnished. The present writ petition also suffers from delay and latches, therefore, is liable to be dismissed on this score also besides merits. We have considered the order (Annexure P-6). Taking into consideration the evidence led before the Labour Court has arrived at the finding of fact which is just and appropriate. Exercising writ jurisdiction under Article 226, we do not act as an Appellate Court and only exercise supervisory jurisdiction. A perusal of the order (Annexure P-6) shows that the Labour Court has taken into consideration admission of the Management, Circular issued by the Railway Board and the various CWP No.9934 of 2008 -6- acknowledgements of the claim of workman to repel the argument that the claim of the workman is time barred and stale. Furthermore, we are also of the view that for a petty amount of Rs.5133.30 the workman has been litigating since long. On equity, again, we do not appreciate workman being made party to another bout of litigation and hence we find no merit in the writ petition and the same is dismissed. (KANWALJIT SINGH AHLUWALIA) JUDGE May 30, 2008 (ASHUTOSH MOHUNTA) Gulati JUDGE