DELHI URBAN SHELTER IMPROVEMENT BOARD v. SUBHASH

1. The present writ petition has been filed under Article 226 of the Constitution of India seeking setting aside of order dated 24.02.2018 passed by the POLC/Dwarka Court, New Delhi in LIR no.6722/16, whereby the action of the petitioner/management in terminating the services of the respondent/claimant was held to be illegal and so he was awarded a lump sum compensation of ₹5,00,000/- and a sum of ₹20,000/- as litigation expenses to be paid by the former.

2. Vide Order No. F.24(1867)/05/Lab./1812-1816 dated 05.03.2007, issued by the Secretary (Labour), Government of NCT of Delhi, a reference was sent to the Labour Court to consider whether the services of the respondent/workman/claimant had been terminated illegally and/or unjustifiably by the petitioner/management and if so, to the sum of money as monetary relief along with other consequential benefits in terms of existing law/govt. notification and to other relief he was entitled to.

3. Before the Labour Court, the respondent/claimant/workman contended that in 1992, he had joined the post of Sewar Beldar in the Delhi Development Authority (the DDA). The Slum and JJ wing of the DDA was taken over by the Municipal (the MCD) and accordingly his service was also transferred to the MCD with continuity of service and all benefits of the previous service. Pursuant to the same, the respondent/claimant/workman reported for work before the MCD Head Quarter, Town Hall, Chandni Chowk. However, the officials informed him that his service file had not yet been received by the department and, therefore, he was not allowed to resume his duties. Thereafter, he approached his parent department. But the officials concerned told him that they had already sent his service file to the MCD and that he must report for duty only before the MCD. Despite several attempts made from 21.04.1998, he was never permitted to join duty.

4. The petitioner/management contended that the respondent/claimant/workman had not come to the court with clean hands and that he had suppressed material facts from the court. Vide letter dated 14.07.1998 addressed to Director (CSE) of MCD at Town Hall, the respondent/ workman/claimant made a request for allowing him to join duty. Thereafter, there was no information about him, and he never turned up for duty. On 27.02.2004, the Industrial Disputes (Delhi Amendment) Act, 2003 was brought into force vide notification No. F. 25/(1)/ Sectt. Lab/03/22 dated 27.02.2004 thereby prescribing a limitation of one year for raising a dispute in respect of the disputes conceived under Section 2A of the ID Act. The claim is not maintainable as it is time barred. The respondent/claimant/workman has not given the date of his order of discharge, dismissal, retrenchment or termination. The allegation that the workman was initially appointed in 1992 was denied. It was contended that sewer services of Sector-1, Dwarka were transferred by the Slum & J.J. Department to the CSE Department of the MCD.

5. On completion of pleadings, the Labour Court framed issues which reads thus- “1. As per the terms of reference.

2. Whether the reference as well as claim is time barred and not maintainable on the principles of delay and latches? 0PM”

6. Thereafter, both sides adduced oral and documentary evidence. The Labour Court on a consideration of the oral and documentary evidence and after hearing both sides answered the issues in favour of the respondent/claimant /workman. Aggrieved, the management has come up in appeal.

7. It is submitted by the learned counsel for the petitioner/management that the Labour Court has found issue no.2 in favour of the respondent/claimant/workman by holding that there was no pleading raised in the written statement regarding delay and hence, the said contention could not be countenanced. By referring to paragraph 4 of the reply filed by the petitioner/management before the Labour Court, it was submitted that the said finding is apparently wrong. It was also pointed out that the decision relied on by the Labour Court is not applicable to the facts of the case on hand. The learned counsel drew the attention of this Court to sub-section (4A) to Section 10 brought into the Industrial Disputes Act, 1947 (the ID Act) vide Section 2 of the ID (Delhi Amendment) Act, 2003 with effect from 22.08.2023 to substantiate its argument that the claim was time barred.

8. Per contra, it was submitted by learned counsel for the respondent/claimant/workman by referring to Annexure P-5, i.e., letter dated 10.12.1996 that the petitioner/management has admitted that the respondent/claimant/workman is, infact, working with them and therefore, the employeer-employee relationship has been admitted. The petitioner/management has no case that there was any disciplinary proceedings initiated against him and therefore, the petitioner/management ought to have permitted the respondent/claimant/workman to join his duties, which has not been done for one reason or the other. There is no infirmity in the impugned order calling for any interference by this Court, goes the argument.

9. Heard both sides.

10. Going by the case of the respondent/claimant/ workman, he is out of the job from 21.04.1998. He is seen to have sent a legal notice to the petitioner/management on 03.02.2004, to which the petitioner/management is stated to have failed to reply. Pursuant to the same, the industrial dispute was raised and the reference is seen made in the year 2007, which has been answered by the impugned order dated 24.02.2018. Here it would be apposite to refer to sub-section (4A) to Section 10 of the ID Act which reads thus: “(4A) Notwithstanding anything contained in section 9C and in this section, in the case of a dispute falling within the scope of section 2A, the individual workman concerned may, within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court or the Tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be, shall dispose of such application in the same manner as a dispute referred under sub-section (1).”

11. As noticed earlier, the specific case of the respondent/claimant/workman is that he has not been permitted to join duties from 21.04.1998. However, he sends a notice only in the year 2006 and raises the industrial disputes in 2007, which is well beyond the period of limitation contained under Section (4A) to Section 10 of the ID Act. The finding of the Labour Court that no contention regarding delay was raised by the petitioner/management in their reply filed before the Labour Court is apparently wrong. Paragraph 4 of their reply reads thus: “That the petition is highly time barred and not maintainable as per notification No. F.25/(1)/Sectt. Lab./03/22 dated 27.02.2004, the Labour Court has no jurisdiction to entertain cases of the workers falling within the scope of Section 2A of the Industrial Dispute Act where an individual worker may within twelve months from the date of communication to him of the order of discharge, dismissal, retrenchment of termination of the date of the commencement of the Industrial Disputes (Delhi Amendment) Act, 2003 whichever is later, file his industrial dispute directly. The workman has not given the date of his order of discharge, dismissal, retrenchment of termination. In para 5 of claim, workman stated that since 21.04.1998 he is on road with his family which is highly time barred….” (Emphasis Supplied)

12. There is clear averment to the effect that the claim is time barred. No reason(s) have been furnished for the inordinate delay in filing the claim.

13. The Labour Court has relied on the dictum of the Apex Court in Ajaib Singh Vs. Sirhind Cooperative Marketing-cum- Processing Services Society Limited, AIR 1999 SC 1351, to hold that the stand of the petitioner/management that the present claim and reference are time barred, is untenable. In the said decision, the Apex Court held that a reference of industrial dispute to the Labour Court is not subject to limitation under the Article 137 of the Limitation Act, 1963. The said decision was rendered in the year 1999. Thereafter, by way of amendment in the year 2003, Section (4A) to Section 10 of the ID Act was brought into the statute book, which is a provision applicable to Delhi. That being the position, the learned counsel for the petitioner/management is justified in arguing that the said dictum is not applicable to the present case.

14. In these circumstances, I find that the claim moved by the respondent/claimant/workman is clearly time barred for which absolutely no reasons have been furnished. This substantiates the contention of the petitioner/management that after giving a joining request, nothing was heard of from the respondent/claimant/workman. The respondent/claimant/workman cannot take steps for redressing his grievance as and when he likes. He must take steps within a reasonable time, which is not the case here. That being the position, the impugned order cannot be sustained.