M.M. Kumar, J. - (1.) The instant appeal filed under Clause X of the Letters Patent is directed against order dated 10.03.2011 rendered by the learned Single Judge upholding the order of the respondents passed on 21.10.2001 (P-6) declining reference to the Labour Court in pursuance of demand notice for violation of Section 25-H of the Industrial Disputes Act, 1947 (for brevity 'the Act').
(2.) The undisputed facts are that the appellant was engaged as Mali-cum-Chowkidar on daily wages on 01.06.1992 and his services were terminated on 30.12.1992. He claimed that Section 25-F of the Act should have been complied with. The pleaded case of the appellant is that provisions of Section 25-G and 25-H of the Act had been violated and persons junior to him were retained in service or re-employed in the year 2006, which conferred the right upon him to be considered for re-employment as per Section 25-H of the Act.
(3.) In the reply, the stand of the respondents is that, in fact, the appellant stopped attending his duty from 30.12.1992 of his own, which is evident from the fact that he never represented to the authorities even after more than a decade. The appropriate Government has accordingly declined to make a reference to the Labour Court on the ground that it suffers from unexplained delay of about 17 years. The learned Single Judge has placed reliance on para 21 of the judgment of Hon'ble the Supreme Court rendered in the case of Kuldeep Singh v. G.M. Instrument Design Development and Facilities Centre and another 2011 (1) SCT 465 and concluded that there no reference could be made in the absence of any valid explanation for the delay. Moreover, the appellant was employed as Mali-cum-Chowkidar on daily wage basis and he did not complete 240 days. The view of the learned Single Judge is discernible from concluding para of the judgment, which reads thus: "After hearing the learned counsel for the petitioner and upon perusal of the material on record, I am of the opinion that the petition is misconceived and deserves to be dismissed. The petitioner in his demand notice has averred that he was employed as Mali-cum- Chowkidar on daily wage basis. He admitted that he was not a workman having not completed 240 days but was entitled to the protection under Section 25G and 25H of the Act. The respondents in the reply disputed the status of the petitioner as a workman and had said that he was merely working on casual basis and the demand had been raised belatedly. Section 25H of the Act reads as under:- "25H. Re-employment of retrenched workmen. -- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons." A perusal of the aforesaid provisions of law reveals that the benefit of Section 25H of the Act can be availed of a workman whose services have been retrenched. The provisions, therefore, presupposes a fact that the incumbent is a workman and a citizen of India and his services have been terminated. If the facts of the case are to be seen that according to the respondents he worked for 15 days and not completed 240 days, therefore, he was not a workman within the meaning of the Act. To determine this question he would have to approach the Labour Court if his plea was that he was a workman within the meaning of the provisions of the Act. This question,therefore, ought to have been raised by him at an earlier point of time when according to him his services were terminated. The respondents, on the other hand, while replying to the show cause notice have clearly denied the claim of the petitioner and stated that he was employed on casual basis and was employed for a period of 15 days and he had abandoned his services himself. Therefore, if the averments made in the demand notice were to be accepted in toto and the dispute which is raised by the petitioner is accepted to be existing, that could have been evaluated by the appropriate Government at that point of time when the alleged termination took place and not at a remote point of time i.e. after 17 years when the petitioner had sought to raise the demand. The delay was, therefore, fatal to the case of the petitioner. The petitioner himself admits that he was not a workman and the provisions of the Act were not applicable to him. Hence, there is no merit in the petition and the same is dismissed.";