M/S ORIX AUTOINFRASTRUCTURE SERVICES LTD v. SANATAN DAS

1. The<'i|Fesentfw filed by the management assails the order dated 22.09.2015 passed by the learned- Labour Court XI, KafkardpoipsCo,urt,;D in DID No.692/14. Under the impugned order,the Labour.Courthas rejected the petitioner's application under.Section 2A (3) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act')seeking dismissal ofthe respondent's claim onthe ground ofbeing barred bylimitation.

2. The respondent,claiming that he had been working as a Driver with the petitioner since 20.02.2008 fi-om where he was illegally terminated on 02.08.2010, raised a direct industrial dispute (hereinafterreferredto as'thefirstclaim').Theclaim wasopposed by W.P.(C)11196/2015 PageloflO 2019:DHC:7425 the petitionerhnI its reply by contending inter alia that as the said era'"-.-.-..j claim was not espoused by the petitioner's regular workmen,it could not be treated as an industrial dispute and in the absence of a valid reference in accordance with the provisions of the Act, the respondent's claim was liable,to be rejected. A copy ofthe aforesaid petitioner before the Labour Court has been handed has been taken on record. reply filed by the over in Court and

3. The first claifn remained pending before the Labour Court,for a period of almost three and a half years. Howeverj in view of the amendment to Section 2A of the Act whereby Section 2A(2) was inserted w.e.f. 15.09.2010 stipulating that a direct claim would be maintainajble only if the workman first approached the Conciliation Officer for.conciliation ofthe dispute, the Labour Court rejected the respondehtls:^laiim without expressing any opinion on merits-. On';22;04..;20'14, immediately pursuant to the award dated 01.03.2014 rejecting the first claim for non-compliance of Section 2A(2)ofthe Act,the respondent approached the Conciliation Officer and a failure report came to be submitted on 13.10.2014. The respondent then raised a fresh industrial dispute under Section 2A(2) on 20.11.2014(hereinafter referred to as'subsequent claim')wherein notice was issued directing the petitioner/managementto file its reply.

4. Upon receiving notice of the subsequent claim, the petitioner instead offiling any reply thereto to the subsequent claim, preferred an application under Section 2A(3)ofthe Act, seeking dismissal of the respondent's claim petition which was rejected by the Labour Court by observin:y as under W.P.(C)11196/2015 Page2of10 I n "4. Workmanfiled this DirectIndustrialDispute u/s 2A(2) oftheIndustrial Disputes Act, 1947alleging that workman was appointed by the management on 11.01.2008 as "Radio Taxi Driver" and management illegally terminated the services of workman on 02.08.2010 in. violation ofprovisions ofSection 25F ofthe Industrial Disputes Act, 1947. Workman allegedly served demand notice dated 04.08.2010 through registeredpost upon the managementbutmanagementdespite havingreceiptof the same did not reinstate the workman in service. Thereafter workmanfiled/raiseddirectindustrialdispute u/s 10(4A) of the Industrial Disputes Act, 1947 on 30.10.2010. Proceedings ofthe^:s.aid;direct.industrial disputes continued till the stage of final argurrients and on 28.02,2014 it was observed that w.e.f. l[5].p9/2Qf0jpf^^ of section 2A(2) of the Industrial Di^putes^^flpfTfadcome intoforce butthis directindustrial dispute'^ complying with the provisions of Section'20(p)oftheIndustrialDisputes Act, 1947. Vide award dated(Of03^20If direct industrial dispute was held to be not maintaindbf>:for want of compliance with the provisions of sd(pmh}^p0fpf^IndustrialDisputesAct,1947andsame was h^d'A^hp^i 11010!jtQ be dismissed and, accordingly, it was dif00d/ff;frhere^ workman filed/raised the industrial dispdfe^dh M-2f6^^ before the Conciliation Officer and Conciliation Officer, gave many opportunities during the (rfgpciliqtion proceedings to the management to put its stand Beforffth^/poh Officer but management did not do so. Thus, this direct industrial dispute u/s:10(4A)& 2A (2) ofthe Industrial Disputes Act, 1947 on the basis offailure report dated 13.10.2014.

5. Itispertinentto note thatasper workman his services were terminated by the management on 02.08.2010. Workman sent demand notice on 04.08.2010 and workman filed direct industrial dispute u/s 10(4A) of the Industrial Disputes Act, 1947 on 30.10.2010-which was, however, dismissed vide order dated 01.03.2014for wantofcompliance with theprovisions of Section 2A(2) ofthe Industrial Disputes Act, 1947, which was inserted in the statute book w.e.f 15.09.2010. Provisions of W.P.(C)11196/20:15 Page3of10 q) Section.2A(3)oftheIndustrialDisputes Act, 1947for barring a workmanfro.nf raising an industrial dispute after the expiry of three years from the date of termination of his services is intended to he applied to a workman who sleeps over his rights and does not take,any action for redressal of his grievances against the management before the expiry ofthree yearsfrom the date ofhi workman slep is termination ofhis services. Here, it is not that n.over his rights during the entire period ofthree years,as abovesaid. Workman did raise the industrialdispute within afew m.onths after,the termination ofhis services by the however, the said industrial dispute was abovesaid. Thereafter workman has allegedly complied with provisions of section 2A(2) of the Industrial Disputes Act,.1.9.47andfiled this directindustrialdispute before the court. Gjoing by the true andreal spirit ofthe application area ofprovisions ofsection 2A(3) ofthe Industrial Disputes Act, 1947 it can be said thatprovisions does not apply to the management; dismissed as facts ofthis, management case: What is pertinent to note.is that even the in its WS had not taken any stand regarding the wOrkrhUhynpTcorhplying with the provisions ofsection 2A(2)of the IndustHaVpisput.es Act, 1947 and issue regarding noncoihplidnc.ePfsection 2A(2)oftheIndustrialDisputes Act, 1947 was noticed^^at the stage affinal arguments. Whatever has happened in\this case appears to have happened because none of the parties had come to know- about the amendments in section '2A of the Industrial Disputes Act, 1947. w.e.f. 15.09.2010. In my considered opinion, application moved by managementin thepeculiarfacts and circumstances ofthis case merits dismissal and same is hereby dismissed. None ofthe case laws relied upon by Id. Counselfor the management has any application on the facts and circumstances of this case. None ofthese case laws pertains to provisions ofsection 2A of theIndustrialDisputes Act, 1947dealing withfactualsituation as in this case. In my.considered opinion every court constitutedfor the purposes ofdoingjustice according to law must be deemed to possess as a necessary corollary and as inherent in its very constitution all such powers as may be necessary to do thejustice and undo a wrong in the cause of

5. The present petition has been filed impugning the aforesaid order. While issuing notice in the present petition,this Court vide its order dated 02.12.2015 had directed the petitioner to file its reply to the claim petition and had further directed: the Labour Court to proceed only till the stage of completion of pleadings. The parties have since pornpleted their pleadings and the matter is presently pending ai^udilati® the Court..

6. In support of the petition, learned counsel for the petitioner submits'thdt'p^^ very claim of the respondent/workmen on 20.11.20d4rpliallengihg his alleged,termination on 02.08.2010 was filed beyond;the;fiefiod ofthree years prescribed in Section 2A(3)of x » sx \;■' • •' V-' " _ '. the Act, the'same^cpuld not be entertained by, this Court especially whenThere is pd'.ppyision in the Act for entertaining time barred direct industriaMSputes. He submits that the Labour Court's reliance, on-the order dated 01.03.2014 passed in the respondent's first claim wasmisglac^as''^:&ei ofrejectingthe same,therespondent was; not granted any liberty to raise a fresh mdustrial dispute. He jiurther submits that in any event, evenif the respondent was entitled to raise,a' fresh claim, the same couldnot have been done beyond the prescribed time period without filing an appropriate. application seeking condonation of delay.

7. Mr.Jain further submits that since, the provisions of the Limitation Act, 1963 are not per se applicable to the prbvisions of the Industrial Disputes Act, 1947, the Labour Court could not Have W.F.(C) 11196/2015 JPage 5of10 excluded the pyiod during which,the respondent's first claim had remained pendii|g. In support ofhis aforesaid submission,he places reliance on the decision ofthe Supreme Court in The Conwiissioner ofSales Tax Uttar Pradesh, Lucknow v. M/s Parson Tools and [AIR 1975 SC 1039]. He also places reliance on Sawant v. Jagdeeshwari Jagdish Amin <6 Ors., to submitthatthe period oflimitation prescribed underthe statute cannot be extended merely on the ground of hardship and sympathy. By. further placing-reliance on a decision ofthis Courtin BalwantSingh & Ors. W SaharaIndiaParivdr& Ors.[2014LawSuit(Del)576]and Plants, Kanpur Smita Subhash of the iKamata Venkataramana a claim'petitiorft] ca fligh Court in ITC Infotech India Ltd. v. Uppada.[2016Law~Suit(Kar)224], he contends that lied,beyond the statutorily prescribed periodofthi-ee years was nbfmai^^^ and had to be necessarily dismissed. hah learned counsel for the respondent submits that since,the amendment to Section 2A of the Act, mandating a workman to first approach the Conciliation Officer before raising a direct industrial dispute,caine to be notified only on 15.09.2010,i.e., barely a month after the respondent's termination under challenge,he ed for raising the'first claim withoutapproaching the or. He submits that in fact none ofthe parties were aware of the said amendment till the stage of final arguments in respect of the-respondent's first claim. Even the'petitioner, while filing its feplyj (lid not raise any specific objection to that effect, which fact has also been noted in the impugned order. He further submits that once the respondent's first claib was entertained by the could not befauli Conciliation Offi W.P-.(C)11196/2015 Page 6of10 Labour Court despite the amendment coming into effect, the respondent cannot be faulted or penalized for the delay in filing a fresh claim in November,'2014%and. is entitled to seek"a proper adjudication ofhis claim on merits.He contendsthatthe Labour Court has rightly rejected the petitioner's application and decided to consider the respondent's claim on merits after noticing that the period of limitation for the respondent to raise a claim had elapsed during,the pendency ofhis first claim. He,thus,contends that there is no reasbn astO;^^ should exercise its writjurisdiction to interfere with.the iinpugned award. He,therefore, prays that the writ petition,be.dismissed.

9. r'have;considered the submissions of learned counsel for the parties ahd.jwitL.their assistance.perused the.record. The admitted position' fwhieh-:.emerges from the record is that the respohdehtl^oflqnan:^^^^^^ to have been illegally terminated from service oh 02.08.2010, had issued a demand notice immediately thereafter and raised anrindustrial dispute on 30.10.2010, i.e., within less than-'S months-frorh the date ofhis alleged termination. It is also undisputed that the first claim was made by him without approaching the Conciliation Officer,which remained pending before the Courtfor almost three and a halfyears despite the same not being maintainable from day one. The first claim came to be rejected only on 01.03.2014 by which time, the period for filing a claim, which is to be counted from the date of the alleged termination, already stood expired. No.doubt,the period oflimitation provided in Section 2A(3)ofthe Act for raising a direct industrial dispute has a salutary purpose and is W.P.(C)11196/2015 Page 7of10 proyision cannol the reliefs he is his initial claim rneant to preyeht workrnen from raising stale claims, but this be read in a manner so asto deprive a workman from entitled to, especially when he had diligently raised within the period prescribed under the Act. In the present case, the amendment to Section 2A came to be notified on 15.09.2010 -whereas the respondent was allegedly terminated on 02.08.201Q;. therefore, while undoubtedly the amendment was applicable to hin,but his failure to approach the Conciliation Officer in ternls of the amended provision before raising the first claim, cannot be called,deliberate.

10. In fact, the record shows that even though it was clear from a bare perusal of approached the industrial dispute;he first claim itself, that the respondent had,not Conciliation Officer before directly raising the perhaps the Labour Court had also failed to notice the effect ofthe aipehtim the matter,reached the stage offinal hearing after almost three and a half years. It also transpires that the Labour Court haa dismissed the respondent's first claim only on the joint submission(ifthe counsel, by specifically observing that it was notexpressing its opinion on the merits ofthe case. While passing the impugned orderthe Labour Court also noticed thatgrave injustice and prejudice had been caused to the respondent on account of the pendency Ofthe first claim for three and a halfyears thereby running out the clock for him to raise a claim in accordance with the amended statutorily prescribed time period. In these Act, within the the Labour Court.circumstances,wh le dealing with the respondent's subsequent claim, has, in consonance with the spirit of the Act, W.P.(C)11196/2015 Page8of10 t 2^ declined to accede to the petitioner's requestfor rejection ofthe same- I have no hesitation in concumng.with this finding of the Labour Court.

11. Had the Labour Court noticed at the very beginning that the first claim was not maintainable,in view ofthe amendmentto Section 2A, and rejected the same in a timely manner, the present.situation could have been avoided andthe respondentcould have easily raised a fresh industrial dispute well before the limitation period ofthree years elapsed on 02*j08;.2013. Even ifthe provisions ofLimita:tion Act are not strictly applicable to the Industrial Disputes Act,it cannot be said that the Labour,iCourt-is barred from following the principles as laid down in Section44;.ofthe Limitation Act, when evidently not only were thei^artiei:i.unaware of the amendment, but even the Labour Coui4-;padfafrd^^ theeffectofthesaid amendmenton.thefirst clainif4br&(^j||;)eij(ofr^^.12. I have also considered the decisions relied.upon by the learned counspl foj- the petitioner and find that none of them forward the petitioner's base in any manner.In The Commissioner ofSales Tax UttarPradesh,Lucknow(supra)the Supreme Court was dealing with a case of a fiscal statute under the U.P Sales Tax Act and in Smita Subhash Sawant (supra) the case related to.filing of an election petition, whereas in the present case the Labour Court was dealing with a social welfare statute like the Industrial Disputes Act wherein it found that the respondent had been very vigilant about raising his clairn. Therefore, it cannot be said that the'respondent's claim was liable to be rejected only on the ground of delay. I have also W.P.(C)11196/2015 Page9of10. considered the dpcision of the Coordinate Bench of this Court in Balwant Singh \supra) as alsq the decision ofthe High Court of Karnataka in ITC Infotech India Ltd. (supra) and find that these casesrelated to lirectindustrial disputes soughtto be raised for the first time beyond the period ofthree years and were therefore rejected as being time barred. In the present case, as noted hereinabove, the initial industrial months of his te: Labour Court it dispute was raised by the respondent within three inination and, therefore, as rightly observed by the would be in the interest ofjustice to adjudicate tho respondent's claim on merits.

13. For the aforesaid reasons, I find absolutely no reason to interfere with the well-reasoned order passed by the Labour Court in exercise ofmy \yritjurisdiction. Consequently the writ petition being meritless is dismissed.

14. Keeping in view the factthatthe industrial dispute raised by the respondent has remained pending for the last many years,the Labour Court is requested to decide the same expeditiously in accordance with law. ! NOVEMBER 1 rhc 3,2019 A AL ■C,