The Divisional Forest Officer, Mayabunder Forest Division v. Birsa Kindo
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ...
MA/5/2022 IA No.CAN/1/2022 The Divisional Forest Officer, Mayabunder Forest Division ... Appellant Vs.
Birsa Kindo ... Respondent Ms. Anjili Nag ... for the petitioner Mr. Gopal Binnu Kumar ... for the respondents December 13, 2022 [SR] Item No.13 The short question that has come for consideration before this Court as to whether the learned Single Bench, while hearing the challenge to an Award dated 5th December, 2018 passed by the Labour Court, pursuant to a reference by the Central Government, has ignored a fundamental omission of such Court that the petitioner approached the Conciliation Officer for the first time in the year 2004 after he was disengaged in the year 1993.
Admittedly the respondent was working from 04.05.1992 till 31.01.1993 as a Daily Rated Mazdoor (DRM) under the Divisional Forest Officer, Mayabunder in the Karmatang Range. A certificate to that effect has been issued by the Range Officer. The respondent was disengaged from January, 1993.
The respondent sat tight over the matter and woke in the year 2004 for the first time and sought Conciliation under the Industrial Disputes Act, 1947.
Conciliation failed and a report was submitted by the Assistant Labour Commissioner-cum-Conciliation Officer, Middle and North Andaman, on 31st May, 2007. A reference was thereafter made by the Central Government being ID Case No.2 of 2008. The reference did not mention the delay and laches of the respondent. Awards were passed from time to time and came to be challenged on three occasions before this Court and finally the impugned Award dated 05.12.2018 was passed.
The Learned Single Judge, applied the principles of judicial review of administrative and quasi-judicial decision, and the writ petition filed by the appellant, was dismissed. The impugned award dated 05.12.2018 was upheld. It appears from the records that, before the Labour Court hearing the reference, the employer had raised the issue of delay of twelve years in raising the dispute in bringing the claim before the Conciliation Officer, Rangat. The Labour Court, however, applying the principles of section 10 of the Industrial Disputes Act, 1947 confined itself strictly to the terms of reference. It found that the petitioner was wrongfully terminated and ordered reinstatement with 25% backwages.
There is yet another reason why the Labour Court most likely did not enter into of limitation. In an earlier proceeding being WP/493/2012, challenging the Award dated 17th February, 2012, a Coordinate Bench of this Court had made an observation in an order dated 3rd August, 2012, that since the question of delay was not part of the reference, the Tribunal was disentitled to enter into the said question.
It is now well settled proposition of law that laws of limitation do not apply to claims under the statutes that don't prescribed limitation. The law of limitation is not even applied in writ petition. What is applied is principle of delay and laches.
The sum and substance of the law settled by the Supreme Court is that the person who has inordinately delayed approaching writ court or Tribunal for remedy, is not entitled to relief unless there is sufficient explanation for such delay. Relief is only granted in exceptional cases. In the instant case there is no explanation whatsoever. Ms. Anjili Nag, Learned Counsel for the appellant, has relied upon the decision of the Supreme Court in the case of U.P. State Road Transport Corporation vs. Babu Ram Reported in (2006) 5 SCC 433. In the said case the issue of delayed approach to the authorities under the labour laws was not part of the reference, yet, the Hon'ble Supreme Court, in paragraph 8 and 9 of the said judgment has held
that the High Court while examining the propriety of an Award passed by the Labour Court is required and duty bound to look into as to whether the respondent had applied for remedies, within a reasonable time. Paragraphs 7, 8 and 9 are setout hereinbelow.
"7.
So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
8.
However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty, it was noted, at paragraph 6 as follows (SCC pp.459-60) "6. 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 a lapse of about seven years of the 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 an industrial dispute was ex-facie bad and incompetent." 9.
In S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka the position was reiterated as follows (at SCC pp.3-40, para 17):
17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. v. Workmen that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale.
A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Workmen. In Nedungadi Bank Ltd. v. K.P. Madhavankutty, a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta v. Union of India, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief.
Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 198687. Pursuant to the judgment in Daily Rated Casual Labour v.
Union of India the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-121990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal cumLabour Court. We do not think that the appellants deserve to be non- suited on the ground of delay.
The above position was highlighted recently in Employers in relation to the Management of Sudamdih Colliery of M/s Bharat Coking Coal Ltd.
v.
Workmen."
A similar view has been adopted in the case of Nedungandi Bank Ltd vs. K. P. Madhavankutty and others Reported in (2000) 2 SCC 455.
Admittedly in the facts of the case there is no explanation whatsoever, of the delay of 12 years in seeking conciliation and reference.
In view of the above dicta of the Supreme Court referred to hereinabove, this Court is of the clear view that the respondent was disentitled in any relief from court below for having approached the authorities under the ID Act, 1947 after a delay of 12 years.
The reference could not have been made in the first place.
There is however some substance in the argument of Mr.Gopala Binnu Kumar that the appellant DFO ought to have challenged the reference immediately after it was passed. In course of the hearing of the reference, the DFO has raised the issue of delay and laches specifically in writing.
The observation of the Single Bench in the order dated 03.08.2012 in WP No.493 of 2012 an earlier Award albeit between the same parties cannot stand in the way of the
High Court looking into the propriety of the claim of an individual seeking equity and the fruits of beneficial legislation.
However, this Court notes that the respondent has not received any single penny payable to him under section 17(B) of the ID Act, 1947. Ms. Anjili Nag, learned counsel for the petitioner has submitted that the petitioner ought to have filed an affidavit before this Court under section 17(B). Considering the facts and circumstances of the case and since the respondent-Mazdoor, has been litigating since the year 2004, this Court directs the appellant-DFO to pay a sum of Rs.35,000/- to the respondent-employee as a onetime and final measure, within 15 days from date.
The impugned Award dated 05.12.2018 is hereby quashed and set aside. The impugned order dated 10.12.2021 passed in WPA/203/2019 is hereby also set aside.
MA/5/2022 is allowed and disposed of. In view of above, CAN/1/2022 is also disposed of All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
( Rajasekhar Mantha, J. ) ( Bibhas Ranjan De, J.)