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Engineering & General Workers Union represented by General Secretary v/s The Management of Apten Forgings represented by its Head of the Department & plant Incharge

    Review Petition No. 114 of 2013 IN Writ Petition No. 50885 of 2012 (L-RES)

    Decided On, 28 March 2013

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE RAVI MALIMATH

    For the Petitioner: A.J. Srinivasan, Advocate. For the Respondent: -----------



Judgment Text

(Prayer: This Review Petition filed under Section 4 of the Karnataka High Court Act, read with Order 47, Rule 1 of the CPC praying to review the order dated 12.2.2013 passed in W.P.No.50885/2012(L-RES).)

1. This petition has been filed seeking to review the order dated 12.02.2013, passed in W.P.No.50885/2012, wherein the petition was dismissed on the ground of delay.

2. The learned counsel for the petitioner contends that there were certain judgments that he failed to bring to the notice of the Court at the time of hearing. Therefore, he should be given an opportunity to place these judgments for consideration.

3. Ample opportunity was given to the petitioner to make out their case when the matter was heard. They have failed to convince the Court on the question of delay. However, in view of the plea that certain judgments were not brought to the notice of the Court, I have heard the petitioners.

4. The contention of the petitioner is that the delay is to be considered in a manner that is beneficial to the workmen. That the Management can always be compensated by holding that during the period of delay, no relief could be granted to the workmen. But to non- suit the workmen only on the ground of delay is inappropriate.

5. In support of his case, he relies on the judgment reported in 1991 (I) LLJ SC 1260, in the case of Ajaib Singh vs. Sirhind Cooperative Marketing Cum Processing Service Society Limited and Another, with particular reference to para nos.10 and 11. I have considered the said paragraphs. It was held that- "...the provisions of Article - 137 of the Schedule of Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay".

It was also held that -

"...the High Court was not justified in prescribing the limitation for getting the reference made or an application under Section -37-C of the Act to be adjudicated." On considering the same, I'am of the considered view that the same does not apply to the case on hand. The question of delay is as to the reference or the judgment by the Labour Court. The delay that was considered by this Court is in approaching this Court under Article - 226 of the Constitution of India. The judgment relied upon is so far as on the question of delay for proceedings under the Act.

6. Reliance is also placed on para - 11 that the High Court was not justified in holding that the workmen has not given any explanation. This too is a matter pertaining to the proceedings before the Labour Court. Insofar as this decision of the Hon'ble Supreme Court is concerned, it does not lay down any proposition as to how and what manner the delay in filing a writ petition requires to be considered. The judgment as relied upon with reference to para nos. 10 and 11 pertains to the proceedings under the Act. Hence, the judgment is of no avail to the petitioner.

7. The second judgment relied upon is in the case of U.P. Electricity Board vs. Rajesh Kumar, reported in 2005(I) LLJ 1081, with reference to para - 5, which reads as follows:

"5. It is also not disputed by the learned counsel for the parties that there is no period of limitation as is prescribed for the parties in making the reference. The facts and circumstances of each case are to be considered in dealing with the stale claims and appropriate reliefs are to be granted. We do not think it is necessary for us to examine the question of stale claims made by the learned counsel for the appellant in these cases, in the light of the facts narrated above and particularly, when the appellant id not challenge the order of reference made in the year 1997, at this stage. Thus looking from all angles, substantial justice is done in the matter. In this view, we decline to interfere with the impugned judgment. Consequently, the appeals are dismissed. No costs."

8. It is therefore contended that while dealing with stale claims appropriate reliefs requires to be granted. I'am unable to accept the contention of the petitioner's counsel. What has been narrated by the Hon'ble Supreme Court in the aforesaid paragraph is the contention as raised by the parties. It is stated that - "The facts and circumstances of each case are to be considered in dealing with the stale claims and appropriate reliefs are to be granted."

This is the contention of the parties. Thereafter, the Hon'ble Supreme Court held that - "We do not think it is necessary for us to examine the question of stale claims made by the learned counsel for the appellant in these cases, in the light of the facts narrated above and particularly, when the appellant id not challenge the order of reference made in the year 1997, at this stage." Even assuming that stale claims could be entertained by the Court, the same is only with reference so far as the proceedings under the Act is concerned. As has been held in the earlier judgments relied upon by the petitioner's counsel, the question of delay cannot be held against the workmen, so far as the proceedings under the Act is concerned. But so far as the delay in filing the writ petition is concerned, the same would necessarily have to be considered in the different backgrounds. Therefore, this judgment too is not applicable to the case on hand.

In the case referred to above, there was a delay of 19 years when the reference was made. The reference was allowed and the workmen were held entitled for reinstatement with continuity of services. On a challenge made before the High Court, the same was dismissed. The same was challenged before the Hon'ble Supreme Court in the instant judgment. Under these circumstances, the Hon'ble Supreme Court held that so far as the delay is concerned, the same having been adjudicated before the Labour Court, it was not necessary for the Hon'ble Court to dwell on the said question. Therefore, it was held that there was no necessity to examine the question of stale claims in the facts narrated therein. Further, the facts herein are different. There was no delay in the proceedings before the Labour Court. The delay as held against the petitioner is the delay in approaching this Court. Under these circumstances, the judgment also is not applicable to the case on hand.

9. The next judgment relied upon is in the case of Karan Singh vs. Executive Engineer Haryana State Marketing Board reported in MANU-SC-3932-2002. The claimant therein sought for reinstatement with full back-wages. The Management took a stand that his services were terminated and that he did not complete 240 days. The claim made by the learned counsel was that he was terminated in the year 1994. The claim petition was filed in the year 2000. The reference was made in the year 2001. The Labour Court was of the view that the workmen should have explained the inaction on his part. That the claim petition was highly belated. That if the appellant felt that the order of termination was illegal, he should have come with the demand notice within reasonable time. That even though no limitation was prescribed, it will be inequitable to reopen the case after a long time. Hence, it was held that the workman was not entitled for any relief. The writ petition filed before the High Court was dismissed.

Aggrieved by the same, he approached the Hon'ble Supreme Court. After relying on various judgments relied upon by the claimant, ultimately the Hon'ble Supreme Court declined to interfere in the matter. Further, the learned counsel for the petitioner relies on para - 9 of the judgment. In the said paragraph the Hon'ble Supreme Court relied on the judgment in the case of National Engineering Industries Limited vs. Sate of Rajasthan and Others, reported in (2000) 1 SCC 371, wherein it was held that -

"The Tribunal has no authority to invalidate the reference, particularly when it has found that the order of termination violates Section - 25F of the Industrial Disputes Act, 1947."

10. Reliance was also placed on the judgment in the case of Sapan Kumar Pandit vs. U.P. State Electricity Board and Others reported in (2001) 6 SCC 222, wherein it was held that - "delay for making the adjudication could be considered by the Adjudicating Authorities while moulding its reliefs."

11. Hence, it is pleaded that the delay cannot be held against the workmen and on condoning the delay the appropriate relief can be granted. Hereto I'am unable to accept the plea of the counsel. This is a proceeding where delay is not a subject matter of this proceedings. There is no delay involved in the present dispute. The delay is in filing the writ petition before this Court. This is the difference.

12. In all these authorities relied upon by the court, what has been held is the power of the Tribunal to condone the delay and when there is no limitation as provided, such a delay should be considered in the light of the principles as enunciated therein. Therefore, this Court is of the view that the reliance place on these judgments are misplaced and they cannot be pressed into service in support of the petitioner's case.

13. Reliance is place on the judgment reported in the case of State of Punjab and Others vs. Des Bandhu, reported in (2007) 2 SCC (L&S) 660, at para 6, which reads as follows:

"6. In Anil Kumar Puri vs. Presiding Officer, Labour Court, Chandigarh it was held by this Court that there was no deliberate delay on the part of the workman. In that case nearly 5 years had been spent in pursuing the remedy before the Central Administrative Tribunal. On the peculiar facts of the case this Court ordered reinstatement but restricted the back wages to 50%."

The facts of the case would show that the reference was highly belated. That he was terminated from services on 22.02.1989. That the termination under the demand notice was issued in December 1997. The order of termination was passed in 1989. That the delay was occasioned to a considerable extent due to the pendency of the civil suit and the appeal thereafter. Hence, there was a delay of 9 years in raising the industrial dispute.

The Labour Court declined to grant any relief and so did the High Court. However, the Hon'ble Supreme Court based on the facts of the case thought it appropriate to modify the order of the Labour Court and granted a sum of Rs.60,000/- in lieu of final settlement. Placing reliance on this judgment the petitioner's counsel contends that even if there is a delay, the same can be moulded by the Court while granting the relief. Therefore, he pleads that the same principle be applied to this case.

I'am unable to accept the submission made. The facts of this case would show that there was a delay in raising the industrial dispute. It was raised after nine years. The Labour Court declined to grant any relief and the same was challenged before the High Court. What was in consideration therein was non-grant of any relief by the Labour Court to the workmen therein. The delay was not explained by the labour court. That is not a question involved in this case. The delay sought to be occasioned is the delay in approaching this Court and not the raising the dispute before the Labour Court. Even otherwise in the facts of that case, the Hon'ble S

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upreme Court has moulded the relief. It is not that in each and every case, a relief has to be moulded. Since the principle enunciated therein is with regard to the delay before the Labour court, this judgment too is not applicable to the case of the petitioner. In these circumstances, I'am of the view that the citations relied upon do not come to the aid of the petitioner. The citations are with reference to the delay in approaching the Labour Court. That inspite of absence of limitation, various principles as to the reasonable time have been enunciated, including moulding of relief. 14. In the considered view of this Court, the delay in approaching this Court would necessarily have to be considered. In these circumstances of the case, moulding of the relief would arise subsequent to the condoning of the delay. 15. All these issues have been considered in the order under review. It is only on the request of the petitioner's counsel since these judgments were not brought to the notice of the Court, that his plea has been entertained. On considering the contentions, I'am of the considered view that there is no error on the face of the record that calls for interference. Consequently, the petition being devoid of merits is dismissed.
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