THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.24957 OF 2008 DATED DECEMBER, 2010 BETWEEN Kola Venkateswara Rao … Petitioner And The Depot Manager, APSRTC, Avanigadda Depot, Avanigadda, Krishna District. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.24957 OF 2008 O R D E R Aggrieved by the NIL Award dated 22.04.2008 passed by the Labour Court, Guntur, in I.D.No.50 of 2004, the petitioner is before this Court. The petitioner entered the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) as a Conductor in November, 1987. Due to his unauthorized absence from 29.10.1991, the APSRTC directed him to appear before the Divisional Manager, Machilipatnam, by letter dated 13.01.1992. Though he received the said letter, the petitioner failed to respond. It was only on 10.05.1998 that he approached the Deputy Chief Traffic Manager, APSRTC, Vijayawada, with a medical certificate stating to the effect that he suffered with T.B. of the spine and was advised to take rest from 30.11.1991 to 30.04.1998. This medical certificate was issued by a private Nursing Home situated at Avanigadda, Krishna District. The APSRTC by proceedings dated 27.08.1999 rejected the request of the petitioner for reappointment in its service. It was pointed out therein that the petitioner failed to report pursuant to the letter dated 13.01.1992 and therefore his representation for reappointment, being time-barred, could not be considered at that stage. His review petition met with failure when the Regional Manager, APSRTC, Krishna, confirmed the proceedings dated 27.08.1999. He thereupon invoked the jurisdiction of the Labour Court by way of the subject I.D. The petitioner examined himself as W.W.1 and the Doctor who treated him as W.W.2. He marked three documents in support of his case. The APSRTC examined one witness and marked five exhibits. Upon examination of the material on record, the Labour Court found that the discrepancies in the depositions of W.Ws.1 and 2 and the lack of documentary evidence did not support the petitioner’s case that he was physically unwell to the extent that he could not move and therefore failed to report before the Divisional Manager, APSRTC, Machilipatnam, or send a medical certificate earlier. Referring to the APSRTC Employees (Leave) Regulations, 1963 and more specifically Regulation 11 thereof, the Labour Court opined that the petitioner had failed to abide by the prescribed procedure for availing medical leave. It further found that he was not entitled to extraordinary leave under the said Regulations as he failed to put in the minimum requisite service of five years. Referring to Regulation 17(2) of the said Regulations, the Labour Court held that the petitioner lost his lien over the job as he was absent for seven years. Holding that the delay on the part of the petitioner in seeking redressal was fatal to his case, the Labour court opined that the petitioner was not entitled to any relief and accordingly returned the NIL Award. Sri M.Pitchaiah, learned counsel for the petitioner, contended that the dispensation of his client’s services by the APSRTC without ceremony was not sustainable in law. Learned counsel submitted that though Regulation 17(2) of the Leave Regulations provided for cessation of lien on the post if the incumbent absented himself for a period in excess of seven days, in the light of the law laid down by the Supreme Court in UPTRON INDIA LTD. V/s. SHAMMI BHAN[1], the principles of natural justice would have to be read into the said Regulation and the APSRTC would be required to put the petitioner on notice as to the action proposed to be taken against him for overstaying his leave. Sri K.Satyanarayana Murthy, learned standing counsel for the APSRTC, on the other hand, contended that the delay on the part of the petitioner in raising the dispute would be fatal to his claim. He pointed out that this plea had been raised before the Labour Court by stating that the petitioner’s I.D. was time barred and that the Labour Court rightly applied the law in this regard and held the delay and laches on the part of the petitioner to be a ground to deny relief to him. Learned standing counsel submitted that in the light of this delay it was not open to the petitioner to seek adjudication of his dispute on merits. The evidence placed before the Labour Court demonstrates that though the petitioner claimed to have been hospitalized for six months, the Doctor (W.W.2) contradicted him. Further, the petitioner himself admitted that he was treated as an outpatient after the initial period of six months. He also conceded that he received the APSRTC’s letter dated 13.01.1992 directing him to report before the Divisional Manager, APSRTC, Machilipatnam. Despite these admitted facts, there is no explanation forthcoming from the petitioner as to what prevented him from presenting himself before the APSRTC till 1998. As he was treated as an outpatient, his plea that he was unable to move cannot be accepted. These aspects clinchingly demonstrate delay and laches on the part of the petitioner. Sri M.Pitchaiah, learned counsel for the petitioner, contended that even if there was delay on the part of his client, the same could not be a ground to deny him relief. He would submit that such delay can only be factored for the purpose of moulding the relief but not for non- suiting him altogether. He placed reliance on case law in this regard. It is no doubt true that the Supreme Court in AJAIB SINGH V/s. THE SIRHIND CO-OPERATIVE MARKETING-CUM-PROCESSING SERVICE SOCIETY LTD.[2] held that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to proceedings under the Industrial Disputes Act, 1947 and relief could not be denied to the workman merely on the ground of delay. However, in BALBIR SINGH V/s. PUNJAB ROADWAYS[3], the Supreme Court, while dealing with a case where the plea of delay had been raised by the employer, observed that whether relief should be denied to the workman on the ground of delay or whether it should be appropriately moulded would be at the discretion of the Tribunal depending on the facts and circumstances of the case. Such discretion, as pointed out, has to be exercised judicially. In NEDUNGADI BANK LTD. V/s. K.P.MADHAVANKUTTY[4], the Supreme Court, dealing with a delay of 7 years in raising the dispute, held that even if law does not prescribe any time limit for reference of a dispute under Section 10 of the Industrial Disputes Act, 1947 such power could not be exercised at any point of time and to revive matters which had already been settled. Such power, according to the Court, was to be exercised reasonably and in a rational manner. As to when a dispute can be said to be stale, the Court opined, would depend on the facts and circumstances of each case. Relevant to note, though AJAIB SINGH2 was not referred to in NEDUNGADI BANK LTD.4 the same learned Judge who was a member of the Bench in AJAIB SINGH2 was also a member in the Bench which rendered NEDUNGADI BANK LTD.4 Therefore, the said Judgment was not delivered in ignorance of the law laid down in AJAIB SINGH2. U.P.STATE ROAD TRANSPORT COPORATION V/s. BABU RAM[5]; ASSISTANT ENGINEER, C.A.D., KOTA V/s. DHAN KUNWAR[6]; MANAGEMENT OF M/S.INDIAN IRON AND STEEL CO. LTD. V/s. PRAHLAD SINGH[7] and KRISHI UTPADAN MANDI SAMITY, MANGLOR V/s. PAHAL SINGH[8] are instances where the Supreme Court, dealing with matters arising under the Industrial Disputes Act, 1947, held that delay on the part of the workman would be fatal. SAPAN KUMAR PANDIT V/s. U.P.STATE ELECTRICITY BOARD[9]; GURMAIL SINGH V/s. PRINCIPAL, GOVT. COLLEGE OF EDUCATION AND OTHERS[10]; STATE OF PUNJAB V/s. ANIL KUMAR[11]; JAI BHAGWAN V/s. MANAGEMENT OF THE AMBALA CENTRAL CO-OPERATIVE BANK LTD.[12]; TOWN MUNICIPAL COUNCIL, ATHANI V/s. PRESIDING OFFICER, LABOUR COURT, HUBLI[13] and A.K.MANDAL CISF, UNIT VISAKHAPATNAM PORT TRUST, VISAKHAPATNAM V/s. UNION OF INDIA[14] are instances where the Supreme Court held that the delay on the part of the workman would not be fatal. As pointed out in BALBIR SINGH3, it would depend upon the facts of each case as to whether the delay and laches therein would be fatal or whether it would only be a factor to be considered while moulding the relief. There can be no hard and fast rule in this regard. Each case must necessarily turn upon its own facts. Once delay and laches stand established to the extent of non-suiting the workman, he is no longer entitled to seek adjudication of his dispute on merits, however worthy it may be. Therefore, notwithstanding the enquiry by the Labour Court into the merits of the case, this Court would not be inclined to examine the petitioner’s claim on merits once it is established that he stood disentitled to such benefit owing to the delay and laches on his part. The established facts in the case on hand demonstrate that the petitioner absconded without any intimation to the APSRTC for a period of nearly six and a half years. The material on record also demonstrates that he was not physically disabled, as claimed by him, to the extent of preventing him from approaching the APSRTC all through this period. These facts put it beyond doubt that the petitioner slept over the matter, be it for whatever reason, and did not choose to take any steps throughout this long period. That being so, he is not entitled to turn back the clock at a belated stage and gain re-entry into the service of the APSRTC. Without going into the validity of the adjudication by the Labour Court on the merits of the petitioner’s dispute, this Court is therefore inclined to confirm the Award on the issue of delay and laches, concurring with the finding of the Labour Court. The Writ Petition is devoid of merit and is accordingly dismissed. There shall be no order as to costs. ---------------------------- SANJAY KUMAR, J. _______ DECEMBER, 2010. PGS [1] (1998) 6 SCC 538 [2] (1999) 6 SCC 82 [3] (2001) 1 SCC 133 [4] (2000) 2 SCC 455 [5] 2006 AIR SCW 3457 [6] AIR 2006 SC 2670 [7] AIR 2001 SC 69 [8] 2007 AIR SCW 4349 [9] (2001) 6 SCC 222 [10] (2000) 9 SCC 496 [11] (2007) 9 SCC 663 [12] AIR 1984 SC 286 [13] AIR 1969 SC 1335 [14] 1996 (4) ALT 911