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CASE NO.: Appeal (civil)  1672 of 2002

PETITIONER: Haryana State Coop. Land Dev. Bank

RESPONDENT: Neelam

DATE OF JUDGMENT: 28/02/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :  

       This appeal is directed against  a judgment and order passed by the  Punjab and Haryana High Court in C.W.P. No.14525 of 1998 whereby and  whereunder the writ petition filed by the Respondent herein questioning an  award dated 24.2.1998 passed by the Presiding Officer, Labour Court, U.T.   Chandigarh was allowed.  The Respondent herein applied for  appointment  as a Typist having come to learn from  reliable sources that  a post of Typist  was lying vacant in the Appellant-Bank.  For filling up the said post, neither  any advertisement was issued nor the Employment Exchange was notified.   She even did not possess the requisite qualification. Only on the basis of her  application she was appointed as a Typist on an ad hoc basis for a period of  89 days from 6.1.1985.  The said appointment was, however,  subject to the  approval of the  Registrar, Cooperative Societies, Haryana.  Relaxation in  respect of the qualification was given to her by the Registrar, Cooperative  Societies on 23.12.1985. She had been given extensions of 89 days from  time to time from 6.1.1985.  The said period of 89 days eventually came to  an end on   30.5.1986.  Her services were not continued thereafter.  No order  of termination, however, was issued.  She allegedly made a representation to  the appropriate authority for continuing her in service.  Indisputably, she  thereafter joined the services of Haryana Urban Development Authority  (HUDA) on or about 10.8.1988.  Some other employees similarly situated  raised an industrial dispute which was referred by the Appropriate  Government for adjudication before an Industrial Court.  The said  employees got some relief in the said industrial adjudication.  It stands  admitted that the Appellant-Bank did not succeed in the High Court in the  writ petition questioning the said award whereupon the concerned  employees were reinstated.

Presumably, because reliefs were granted in  its award by the  Industrial Court to the other workmen,  a writ petition was filed by the  Respondent herein before the High Court on 15.5.1989.  The said writ  petition was permitted to be withdrawn on 11.5.1993 stating :

       "Learned counsel for the petitioner prays that this  petition be dismissed as withdrawn so that the petitioner  may approach the Labour Court.

       Dismissed as withdrawn."

       Only on 30.9.1993, a demand notice was issued by the Respondent  praying for a reference of the industrial dispute by the State.  It is  furthermore not in dispute that the in the year 1996, the Appellant-Bank  issued advertisement for making appointments in the vacant posts but the

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Respondent did not apply therefor.  The appointments had been made by the  Bank pursuant to or in furtherance of the said advertisement and the  selection process carried out in that behalf.  Before the Labour Court, the  Appellant herein raised a contention that the entry in the services by the  Respondent being a back-door one, her appointment was a nullity and in any  event on the expiry of the contractual period on 30.5.1986 her services  automatically came to an end.  

       By reason of an award dated 24.2.1998, the Labour Court answered  the reference against the Respondent on the premise that (i) her claim is  belated; and (ii) she having withdrawn her writ petition without obtaining  any leave from the High Court, the reference was barred by the principles of  res judicata.  

       Aggrieved by and dissatisfied with the said award, the Respondent  filed a writ petition before the Punjab and Haryana High Court, which was  marked as C.W.P. No. 14525 of 1998. By reason of the impugned judgment  dated 3.2.2000, the said writ petition was allowed and the Respondent was  directed to be reinstated with continuity of service on her post, relying on or  on the basis of this Court decision in Ajaib Singh vs. Sirhind Cooperative  Marketing-cum-Processing Service Society Limited and Another [(1999) 6  SCC 82] .  However, she was held not to be entitled to any back wages.    The High Court further held that the industrial dispute raised by the  Respondent was not barred under the principles of res judicata.

       Mr. Sanjay R. Hegde, the learned counsel appearing on behalf of the  Appellant, would contend that although there does not exist any prescribed  period of limitation for raising an industrial dispute, the same has to be done  within a reasonable period and what would constitute a reasonable period  will depend upon the facts of each case.  The learned counsel would urge  that Ajaib Singh (supra) was rendered on its own facts and did not constitute  a binding precedent.          Our attention was drawn to a decision of this Court in Nedungadi  Bank Ltd. vs. K.P. Madhavankutty and Others [(2000)  2 SCC 455] wherein  a different view is said to have been taken.  The learned counsel would  submit that the High Court committed a manifest error in interfering with the  discretionary jurisdiction exercised by the Presiding Officer, Labour Court,  insofar as it failed to take into consideration that apart from the ground of  delay, the Respondent having worked only for about one year and three  months and as in the meanwhile third party right had been created, the  direction to reinstate her in the services of the Appellant was wholly  unwarranted.  Reliance, in this connection, was placed on Central Bank of  India vs. S. Satyam and Others [(1996) 5 SCC 419].  The learned counsel  would further contend that as the Respondent while withdrawing the writ  petition did not seek for any leave of the High Court to take recourse to  another remedy, the proceeding before the Labour Court was not  maintainable.  Reliance, in this behalf, was placed on Sarguja Transport  Service vs. State Transport Appellate Tribunal, M.P., Gwalior and Others  [(1987) 1 SCC 5].  

Mr. Keshav  Kaushik, the learned counsel appearing on behalf of the  Respondent, on the other hand,  would contend that the provisions of the  Limitation Act are not attracted to proceedings under the Industrial Disputes  Act and the question  as to whether a workman would be denied any relief  because of the claim being  a belated one or not must be considered having  regard to purport and object for which it was enacted as in terms thereof the  courts are required to impart social justice to the workmen.  The learned  counsel would contend that in any event in the instant case the writ petition  was filed only after a period of three years and as prior thereto the  Respondent made representations, the Labour Court committed illegality in  refusing to grant any relief to the workman.  According to the learned  counsel although the Respondent was gainfully employed with HUDA since  10.8.1988 but the same being not of a permanent nature, she would like to

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join the services of the Appellant.   

RES JUDICATA :         The writ petition filed by the Respondent concededly was not  adjudicated on merit.  Apparently, she did not avail the alternative remedy  which was more efficacious.  Before the Labour Court even  disputed  questions of fact could be gone into and adjudicated upon which would  ordinarily not be permissible in a writ proceeding.  If the Respondent had  made a prayer for withdrawal of a writ petition on the said ground, she  cannot be denied the remedy available to her in another jurisdiction in terms  of the provisions of the statute.  The principles embodied in Order 23 Rule 1  of the Code of Civil Procedure laying down a public policy is not applicable  to a case of this nature.  A writ petition filed by the Respondent could have  been dismissed even on the ground that another alternative remedy which  was more efficacious was available and furthermore on the ground that the  writ court would not go into the disputed question of fact.  Even in such an  event, it was open to the Respondent herein to approach the Labour Court or  to take recourse to other remedies which were otherwise available to her.          In  Sarguja Transport (supra), it was observed :

"\005While the withdrawal of a writ petition filed in a High  Court without permission to file a fresh writ petition may  not bar other remedies like a suit or a petition under  Article 32 of the Constitution of India since such  withdrawal does not amount to res judicata, the remedy  under Article 226 of the Constitution of India should be  deemed to have been abandoned by the petitioner in  respect of the cause of action relied on in the writ petition  when he withdraws it without such permission..

       The Labour Court, therefore, in our opinion, wrongly applied the  principles of res judicata.

BELATED CLAIM :         The Industrial Courts like any other court must be held to have some  discretion in the matter of grant of relief.  There is no proposition of law that  once an order of termination is held to be bad in law, irrespective of any  other consideration the Labour Court would be bound to grant relief to the  workman.  The Industrial Disputes Act does not contain any provision which  mandates the Industrial Court to grant relief in every case to the workman.   The extent to which a relief can be moulded will inevitably depend upon the  facts and circumstances obtaining in each case.  In absence of any express  provision contained in the statute in this behalf,  it is not for the court to lay  down a  law which will have a universal application.

       In Ajaib Singh (supra), the management did not raise any plea of  delay.  The Court observed that had such plea been raised, the workman  would have been in a position to show the circumstances which prevented  him in approaching the Court at an earlier stage or even to satisfy the Court  that such a plea was not sustainable after the reference was made by the  Government.  In that  case, the Labour Court granted the relief, but the same  was denied to the workman only by the High Court.  The Court referred to  the purport and object of enacting  Industrial Disputes Act only with a view  to find out as to whether the provisions of the Article 137 of the Schedule  appended to the Limitation Act, 1963 are applicable or not.  Although, the  Court cannot import a period of limitation when the statute does not  prescribe the same,  as was observed in Ajaib Singh (supra), but it does not  mean that irrespective of facts and circumstances of each case, a stale claim  must be entertained by the appropriate Government while making a  reference or in a case where such reference is made  the workman would be  entitled to the relief at the hands of the Labour Court.

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The decision of Ajaib Singh (supra) must be held to have been  rendered in the fact situation obtaining therein and no ratio of universal  application can be culled out therefrom.  A decision, as is well-known, is an  authority of what it decides and not what can logically be deduced therefrom Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, JT 2005 (1) SC 303], and  Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr. \026 para 42  -  (2005) 1 SCALE 385].  

In Balbir Singh vs. Punjab Roadways and Another [(2001) 1 SCC  133], as regard Ajaib Singh (supra), this Court observed : "5. The learned counsel for the petitioner strenuously  urged that the Tribunal committed error in denying relief  to the workman merely on the ground of delay. The  learned counsel submitted that in industrial dispute delay  should not be taken as a ground for denying relief to the  workman if the order/orders under challenge are found to  be unsustainable in law. He placed reliance on the  decision of this Court in the case of Ajaib Singh v.  Sirhind Coop. Marketing-cum-Processing Service  Society Ltd. ((1999) 6 SCC 82 : 1999 SCC (L&S) 1054 :  JT (1999) 3 SC 38).  6.  We have carefully considered the contentions raised  by the learned counsel for the petitioner. We have also  perused the aforementioned decision. We do not find that  any general principle as contended by the learned counsel  for the petitioner has been laid down in that decision. The  decision was rendered on the facts and circumstances of  the case, particularly the fact that the plea of delay was  not taken by the management in the proceeding before  the Tribunal. In the case on hand the plea of delay was  raised and was accepted by the Tribunal. Therefore, the  decision cited is of little help in the present case. Whether  relief to the workman should be denied on the ground of  delay or it should be appropriately moulded is at the  discretion of the Tribunal depending on the facts and  circumstances of the case. No doubt the discretion is to  be exercised judicially\005"  

Yet again in Assistant Executive Engineer, Karnataka vs. Shivalinga  [(2002) 10 SCC 167], a Bench of this Court observed :

"Learned counsel for the appellant strongly relied  on the reasoning of the Labour Court and contended that  the view of the High Court would not advance the cause  of justice.  Learned counsel for the respondent  relied  upon two decisions of this Court in Ajaib Singh vs.  Sirhind Coop. Marketing-cum-Processing Service  Society Ltd. (1999) 6 SCC 82 and Sapan Kumar Pandit  vs. U.P. SEB (2001) 6 SCC 222 to contend that there is  no period of limitation prescribed under the Industrial  Disputes Act to raise the dispute and it is open to a party  to approach the Court even belatedly and the Labour  Court or the Industrial Tribunal can properly mould the  relief by refusing or awarding part-payment of back  wages.  It is no doubt true that in appropriate cases, as  held by this Court in the aforesaid two decisions, such  steps could be taken by the Labour  Court or the  Industrial Tribunal, as the case may be, where there is no  such dispute to relationship between the parties as  employer and employee.  In cases where there is a  serious dispute, or doubt in such relationship and records  of the employer become relevant, the long delay would  come in the way of maintenance of the same.  In such  circumstances to make them  available to a Labour Court  or the Industrial Tribunal to adjudicate the dispute

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appropriately will be impossible.  A situation of that  nature would render the claim to have become stale.   That is exactly the situation arising in this case.  In that  view of the matter, we think the two decisions relied  upon by the learned counsel have no application to the  case on hand\005"    

In Nedungadi Bank Ltd. (supra), a Bench of this Court,  where S.  Saghir Ahmad was a member [His Lordship was also a member in Ajaib  Singh (supra) , opined :

"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\005"  

It is trite that the courts and tribunals having plenary jurisdiction have  discretionary power to grant an appropriate relief to the parties.  The  aim  and object of the Industrial Disputes Act may be to impart social justice to  the workman but the same by itself would not mean that irrespective of his  conduct a workman would automatically be entitled to relief.  The  procedural laws like estoppel, waiver and acquiescence are equally  applicable to the industrial proceedings.  A person in certain situation may  even be held to be bound by the doctrine of Acceptance Sub silentio.  The  Respondent herein did not raise any industrial dispute questioning the  termination of her services within a reasonable time.  She even  accepted an  alternative employment and has been continuing therein from 10.8.1988.  In  her replication filed before the Presiding Officer of the Labour Court while  traversing the plea raised by the Appellant herein that she is gainfully  employed in HUDA with effect from 10.8.1988 and her services had been  regularized therein, it was averred :

"6. The applicant workman had already given replication  to the A.L.C. cum Conciliation Officer, stating therein  that she was engaged by HUDA from 10.8.1988 as  Clerk-cum-Typist on daily wage basis.  The applicant  workman has the right to come to the service of the  management and she is interested to join them."

She, therefore, did not deny or dispute that she had been regularly  employed or her services had been regularized.  She merely exercised her  right to join the service of the Appellant.  

It is true that the Respondent had filed a writ petition within a period  of three years but indisputably the same was filed only after the other  workmen obtained same relief from the Labour Court in a reference made in

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that behalf by the State.  Evidently in the writ petition she was not in a  position to establish her legal right so as to obtain a writ of or in the nature  of mandamus directing the Appellant herein to reinstate her in service.  She  was advised to withdraw the writ petition presumably because she would not  have obtained any relief in the said proceeding.  Even the High Court could  have dismissed the writ petition on the ground of delay or could have  otherwise refused to exercise its discretionary jurisdiction.  The conduct of  the Appellant in approaching the Labour Court after more than seven years  had, therefore, been considered to be a relevant factor by the Labour Court  for refusing to grant any relief to her.  Such a consideration on the part of the  Labour Court cannot be said to be an irrelevant one.  The Labour Court in  the aforementioned situation cannot be said to have exercised its  discretionary jurisdiction injudiciously, arbitrarily and capriciously  warranting interference at the hands of the High Court in exercise of its  discretionary jurisdiction under Article 226 of the Constitution.

The matter might have been different had the Respondent been  appointed by the Appellant in a permanent vacancy.

Both HUDA and the Appellant are statutory organizations.  The  service of the Respondent with the Appellant was an ad hoc one.  She served  the Appellant only for a period of one year three months; whereas she had  been serving the HUDA for more than sixteen years.  Even if she is directed  to be reinstated in the services of the Appellant without back wages as was  directed by the High Court, the same would remain an ad hoc one and,  thus,  her services can be terminated upon compliance of the provisions of the  Industrial Disputes Act.  It is also relevant to note that there may or may not  now be any regular vacancy with the Appellant-Bank.  We have noticed  hereinbefore that in the year 1996, the vacancies had been filled up and a  third party right had been created.  It has not been pointed out to us that there  exists a vacancy.  Having considered the equities between the parties, we are  of the opinion that it was not a fit case where the High Court should have  interfered with the discretionary jurisdiction exercised by the Labour Court.

For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  This appeal is allowed. However,  in  the facts and circumstances of the case, there shall be no order as to costs.