1. Heard, learned Counsel for the Petitioner, Mr. Saurabh Shekhar and learned Counsel for the Respondents/CCL, Mr. Anoop Kumar Mehta.
2. The Petitioner, Rajesh Kumar has preferred this Writ Petition for setting aside the Order, dated 28.10.2021 passed by the Central Government Industrial Tribunal-I-cum-Labour Court, Dhanbad in I.D. Case No.01/2021, whereby the application preferred by the Petitioner under Section 2-A of the Industrial Disputes Act, 1947 has been rejected on the ground that the Petitioner was terminated on 30.10.2014 and preferred an application after three years, as such, in view of the Judgment passed by the Hon'ble Madras High Court in W.P.(MD) No.4269 of 2017, the Petitioner/Workman case is not fit for admission, hence same is dismissed.
3. Learned Counsel for the Petitioner, Mr. Saurabh Shekhar to assail the impugned Order has referred Para 2 of the Writ Petition stating therein that Petitioner had earlier came before this Hon'ble Court in W.P.(C) No.3514 of 2015, with a prayer to accept the Petitioner back in services with Respondents and further prayer was made to release appropriate remuneration, as admissible to the Skilled Labour, as per National Coal Wages Agreement of Management CCL, and also to release consequential benefits. The matter was contested before the Hon'ble High Court on the point of jurisdiction and maintainability, as the learned Labour Court, being alternative statutory remedy under the law. The Petitioner withdrew, the Writ Petition, with a liberty to prefer fresh application before the learned Labour Court in terms of Order, dated 13.9.2019. Thereafter the matter was preferred before the Assistant Labour Commissioner, invoking the provisions of Section 2-A of the I.D. Act, on 19.12.2019. The conciliation proceeding failed and Certificate was issued on 5.3.2020 to approach the learned Labour Court. The application before the learned Labour Court was preferred on 1.2.2021, which was however dismissed on the ground of crossing prescribed limitation period of three years from the date of cause i.e. 2014, hence, as per sub-clause (3) of Section 2-A of the I.D. Act, the application of I.D. Act was not entertained by the learned Labour Court.
4. Learned Counsel for the Petitioner has further submitted that from perusal of list of dates, which he has referred, it appears that:
(i) The Petitioner was engaged in service in April, 2011.
(ii) Training Certificate was provided on 3.1.2014.
(iii) Petitioner last performed his services on 29.10.2014.
(iv) Petitioner preferred Writ application before this Hon'ble Court vide W.P.(S) No.3514 of 2015 on 31.7.2015.
(v) Writ application was withdrawn for want of jurisdiction on 13.9.2019.
(vi) Application before the Assistant Labour Commissioner under Section 2-A(2) of the I.D. Act was preferred on 19.12.2019.
(vii) The failure of conciliation Certificate was issued on 5.3.2020.
(viii) Application was moved before the Learned Labour Court under Section 2-A of the I.D. Act on 1.2.2021.
(ix) The matter was found beyond limitation period of 3 years, as per Section 2-A(3) of the I.D. Act, and the application was rejected on 28.10.2021.
5. Learned Counsel for the Petitioner has further submitted that under Section 14(2) of the Limitation Act, such period while the Petitioner approached this Hon'ble High Court by filing Writ Petition from 31.7.2015 to 13.9.2019, ought to have been excluded, which has not been done, thus Petitioner has suffered, before adjudication of the case actually initiated before the learned Labour Court on the point of limitation.
6. Learned counsel for the Respondent/CCL, Mr. Anoop Kumar Mehta has submitted that a detail Counter Affidavit has been filed relying upon the Judgment passed by the Apex Court in the case of Balwant Rai Saluja v. Air India Limited, 2014 (3) LLN 568 (SC): 2014 (9) SCC 407, Para-65 of which may profitably be quoted hereunder:
“65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an Employer-Employee relationship would include, inter alia,-
(i) who appoints the Workers;
(ii) who pays the Salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take Disciplinary Action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision, i.e. whether there exists complete control and supervision.
As regard, extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case, International Airport Authority of India case and NALCO case.”
7. Learned Counsel for the Respondents has submitted that no appointment letter has been issued by the Respondent — CCL, rather Petitioner was a retrenched Employee of his Employer M/s. Vaishali Electric Company, Argada, as such, even after referring this matter by setting aside the impugned Order, nothing can be done in this matter except there shall be multiplicity of litigation at the Labour Court against the Respondent/CCL.
8. Learned Counsel for the Respondents has further submitted that no application was filed under Section 14(2) of the I.D. Act for condonation of delay as such, this Court may not interfere with the impugned Order/ Judgment.
9. In reply, learned Counsel for the Petitioner has submitted that such application is only required under Section 5 of the Limitation Act, but where the question of application of Section 14(2) of Limitation Act is concerned, the same is to be considered by the learned Labour Court or Court below on the basis of averment made in the application, for which no separate application is required.
10. Considering the rival submission of the parties, looking into
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facts and circumstances of the case, this Court set aside the impugned Order, dated 28.10.2021 passed by the Central Government Industrial Tribunal-I-cum Labour Court, Dhanbad in I.D. Case No.01/2021 on the question of limitation only. 11. Accordingly, this Court remits the matter to the learned Labour Court for considering afresh in accordance with Section 14(2) of the Limitation Act. 12. So far the objection, which has been raised by the Counsel for the Respondents/CCL is concerned, the Labour Court shall consider the same before issuance of notice upon the Respondents/CCL. 13. Accordingly, the Writ Petition is allowed.