All India Institute of Medical Sciences v. Sanjay & Anr

SANJIV KHANNA, J JANUARY 20, 2011 sv

* THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 20th January, 2011 + LPA No. 143/2010 ALL INDIA INSTITUTE OF MEDICAL SCIENCES .... Appellant Through: Mr.Rajat Katyal and Mr.Anchit Sharma, Advocates versus SANJAY KUMAR & ANR. ..... Respondents Through: Mr.Amiet Andlay, Adv for R-2 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this intra-court appeal, the pregnability of the order dated 9th December, 2009 passed by the learned Single Judge in WP(C) No.9640/2007 is called in question. 2. The facts which are requisite to be stated for adjudication of this appeal are that the reference made under Section 10(1) of the Industrial Disputes Act, 1947 (for brevity "the Act') on 4th January, 2007 by the Government of NCT of Delhi, the respondent No.2 herein, was totally unwarranted being hit by the doctrine of delay and laches and further on the foundation that on the date of reference no industrial dispute as such was in existence. On a perusal of the order passed by the learned Single Judge, it transpires that the respondent No.1, who was a daily wager in AIIMS, claimed to have faced an order of termination by the management on 1st March, 1996. He filed an application for conciliation before the District Labour Officer on 26th May, 2005. As no re-conciliation took place, the failure report was submitted to the respondent No.2 and keeping the same in view, the respondent No.2 made the reference to the labour court for adjudication. 3. Be it noted, the terms of the reference made by the respondent No.2 reads as follows: "Whether Sh.Sanjay Kumar S/o Sh.Kalicharan has abandoned his job of his own or his services have been terminated by the management illegally and/or unjustifiably and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/Govt. notifications and to what other relief is he entitled and what directions are necessary in this respect?" Challenging the said reference, it was contended before the learned Single Judge that the claim put forth by the workman was absolutely stale and by no stretch of imagination it can be held that an industrial dispute did exist to make a reference for adjudication. The learned Single Judge expressed the view that the objection relating to delay and laches in raising the dispute by the workman can be taken up by the management in its written statement to be filed before the Labour Court and further as the management has already entered appearance before the Labour Court, the writ petition was sans substance. Being of this view, the learned Single Judge dismissed the writ petition. 4. Mr.Rajat Katyal, learned counsel appearing for the appellants, submitted that the learned Single Judge has fallen into error by expressing the view that the management could raise the issue of delay and laches before the Labour Court and was not entitled to challenge the reference. It is urged by him that if the factual matrix is appreciated with studied scrutiny, it would be quite vivid that the respondent No.2 has failed to appreciate that the industrial dispute as understood in law did not exist at the time of reference and the law does not countenance making stale claims alive unless there has been a continuous cause of action to keep the dispute alive. To buttress his submission, he has commended us to the decisions in Nedungadi Bank Ltd. v. K.P. Madhavankutty & others, 2000 (2) SCC 455 and Dharappa v. Bijapur Coop. Milk Produces Societies Union Ltd., (2007) 9 SCC 109. 5. Despite service of the notice, the workman has remained absent. 6. Mr.Amiet Andlay, learned counsel appearing for the GNCTD, submitted that the State Government had correctly made the reference as it was obliged in law to do so. It is put forth by him t