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Delhi High CourtIndian Cases

Shri Devi Charan S/O Shri Ganeshi Lal vs The Secretary (Labour) Govt. Of … on 7 August 2006

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Delhi High Court
Shri Devi Charan S/O Shri Ganeshi Lal vs The Secretary (Labour), Govt. Of … on 7 August, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the order dated 27th October, 1995 whereby the respondent No. 1 declined to refer the industrial dispute raised by the petitioner to the Industrial Tribunal for adjudication.

2. The petitioner alleged that he was in service of respondent No. 2 as a daily wager/baildar/mali since 26.4.1985 and his services were terminated by refusal of duty on 1.6.1986. The petitioner kept on requesting the respondent to give him duty and ultimately sent a demand notice in March, 1993. Still when no relief was given, the petitioner approached conciliation officer in September, 1993 and in October, 1995, following order was passed by the administrator, refusing to refer the dispute:

The cause of action arose on 1.6.1986 when services of Shri Devi Charan working on casual/muster roll/daily rated Mali are alleged to have been terminated whereas the statement of Claim has been filed on 13.9.1993 i.e. after a gap of more than seven years. The delay in filing the Claim has also not been satisfactorily explained. This is highly belated and an afterthought.
3. The above order has been challenged on the ground that the competent authority had no jurisdiction to refuse to refer the dispute on the ground that the claim of the petitioner was stale or delayed. There was no limitation prescribed under Industrial Dispute Act and the question of delay/latches could not have been decided by the competent authority at the time of referring the dispute. Consideration of delay in filing the claim and the effect thereto should have been left to the decision of Industrial Tribunal as it involved a judicial function. The competent authority can only exercise administrative power and it has no alternative but to refer the dispute.

4. In the counter affidavit, it was stated that the competent authority/government has power of refusal to refer the dispute in appropriate cases where it finds that either there was no dispute surviving or that the dispute was raised after a very long period.

5. I have heard counsel for parties. The short question of law involved in the present writ petition is whether respondent No. 1 was justified in declining to refer the industrial dispute of the petitioner on account of delay in filing the claim. The petitioner was working as a daily wager who was assigned duty as and when it was available with the respondent. The petitioner, according to his own allegations, was working with the respondent with effect from 26.4.1985 as a baildar/mali and he was not assigned duty on 1.6.1986. Obviously, if the petitioner had any grievance of termination of his service, he would have immediately raised the dispute for his termination from service. His plea that he has been approaching authorities for about seven years and asking them to give justice to him, has no force. In the case of Nedungadi Bank Limited v. K.P. Madhavankutty and Ors. 2000(1) SLR 636, the Supreme Court held:

Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent.
6. It is true that the appropriate Government while considering reference of dispute, cannot decide the merits of the dispute and it is for the Industrial Tribunal to decide the merits but the appropriate government has jurisdiction to find out whether the claim made is patently untenable or clearly delayed. Government can refuse to refer a frivolous, vexatious or a stale claim. Although, there is no period of limitation prescribed under Industrial Disputes Act for raising a dispute by workmen but it is expected that unless there are circumstances preventing a workman from raising an industrial dispute, the industrial dispute should be raised soon after the dismissal of the workman. If the dispute is not raised soon after the dismissal of the workman or within a reasonable time, it can be presumed that the workman was not aggrieved and there was no dispute. If the workman raises an industrial dispute after a long time, the Government may refuse to refer the dispute. Non raising a dispute within a reasonable time changes the entire scenario of the relationship between the parties and it also changes the situation. The petitioner was merely a daily wager and it was his choice to come for work or not. Where a daily wager is retrenched by the employer, he deprives himself of remedy available in law by delay itself. Lapse of time results in loosing the remedy since another daily wager substitutes him. The delay is certainly fatal in case of an employee who is retrenched. A delay of seven years in raising the dispute by the petitioner shows that no dispute existed for all these years.

7. In my opinion, the petitioner, who was a daily wage labour, should have raised dispute within a reasonable time and delay of seven years in raising the dispute by him was fatal to his case. I find, no force in this petition, the petition is hereby dismissed. No orders as to cost.