Sureshwar Thakur, J. - (1.) THE petitioner stands aggrieved by Annexure P -1 whereby the Deputy Labour Commissioner, H.P. refused to refer for adjudication to the Labour Court -cum -Industrial Tribunal (hereinafter referred to in short as 'the Tribunal') concerned the industrial dispute raised by the petitioner herein/workman qua the factum of his having stood illegally retrenched or disengaged from service by his employer. The Industrial dispute as reared or engendered by the petitioner herein/workman qua his services standing illegally retrenched besides dispensed with by his employer stood nursed by him after an inordinately procrastinated delay of 9 years. The Deputy Labour Commissioner, H.P. in refusing under annexure P -1 to make a reference for an adjudication by the Tribunal concerned upon the industrial dispute raised by the workman/petitioner herein qua his illegal disengagement/retrenchment from service by his employer had therein constituted the reason of its imprompt raising having sequelled its becoming stale. His construing of the industrial dispute raised by the petitioner/workman qua the latter's purported illegal dispensing of services by his employer being stale hence unreferable for adjudication to the Tribunal concerned stood anvilled upon a decision of this Court rendered in CWP No. 398 of 2001 which stood reiterated by a Full Bench decision of this Court in CWP No. 1486 of 2007.
(2.) GIVEN the impugned order rendered by the Deputy Labour Commissioner, H.P. declining to make a reference to the Tribunal concerned for an adjudication thereupon by the latter upon the industrial dispute raised by the workman qua his illegal retrenchment from service by his employer standing bed rocked upon decisions of this Court as stand recorded in annexure P -1, it is imperative to at the outset extract the apposite issue whereon an answer was purveyed by this Court in its rendition recorded in Civil Writ Petition No. 1486 of 2007. The issue which stood formulated by this Court whereon an answer thereto stood purveyed by it stands extracted hereinafter. "where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the......." On an incisive consideration of a catena of decisions of the Hon'ble Apex Court upon the afore extracted factum probandum this Court had culled therefrom the legal proposition of though their being no statutorily engrafted rigid prescription of any inflexible period of limitation within which a workman is enjoined to raise an industrial dispute comprising his grievances against his employer nor as a corollary the authorized officer of the appropriate Government being empowered to decline to make a reference comprising the industrial dispute raised by the workman to the Tribunal concerned for an adjudication thereupon by the latter unless the inordinately procrastinated delay on the part of the workman to raise it without any tangible or sound explanation emanating from or adduced by the workman before the competent officer of the appropriate Government (Deputy Labour Commissioner) renders it hence to be inevitably construable to have faded, its being infected with the vice of staleness arising from its imprompt raising entailing its rejection by the competent authority. The authorized officer of the appropriate government when exercising powers to make or decline to make a reference to the Tribunal concerned of the industrial dispute reared by the employee against his employer is jurisdictionally empowered to conclude from its unexplained inordinately procrastinated imprompt raising, of its hence acquiring the stain of staleness or its having faded necessarily it being no longer in existence on anvil whereof the competent authority was enjoined to tenably refuse to make reference qua it to the Tribunal concerned. The competent authority of the appropriate Government given the non emanation from the workman of a tangible or sound explanation qua its imprompt raising before it having hence construed it to have faded, eclipsed or its no longer surviving hence obviously his recording an order qua its unreferability to the Tribunal concerned would hence not invite qua it the disability of transgression hence of the domain of law governing the exercise of a purely administrative function by him in making or declining to make a reference to the Tribunal concerned of the industrial dispute inexplicably impromptly raised by the workman. While applying the ratio propounded by this Court in CWP No. 1486 of 2007 it was obviously incumbent upon the workman to promptly raise the industrial dispute qua his purported illegal disengagement from service by his employer for it to be free from any vice of staleness preeminently when any palpable inexplicable procrastinated delay in its raising by the workman would imbue it with the blur of its having stood eclipsed, faded or no longer alive with the concomitant legal effect of its being unreferable by the competent authority of the appropriate government to the Tribunal concerned for an adjudication thereupon by the latter. Even when this Court has ad nauseam expostulated in its verdict rendered in CWP No. 1486 of 2007 which verdict stands embedded on a piercing analysis by this Court of a catena of decisions of the Hon'ble Apex Court qua the signification borne by the apposite phrase 'any industrial dispute exists or is apprehended' as constituted in Section 10 of the Industrial Disputes Act (hereinafter referred to in short as 'the Act') inasmuch as of its not prescribing any rigid inflexible period of limitation for the raising of an industrial dispute by a workman, for concomitant delay if any as occurring in its raising not debarring the authorized officer of the appropriate Government to make a reference qua it to the Tribunal for its adjudication thereupon by the latter yet even when this Court has imparted the aforesaid signification carried by the phrase "an industrial dispute exists" occurring in the apposite provisions of the Act, nonetheless when a further legal proposition is encapsulated therein qua an industrial dispute remaining surviving or in existence only on its prompt raising by the workman for hence ousting any inference of its being stale or no longer surviving for disempowering the authorized officer of the appropriate government to decline to make a reference qua it to the Tribunal concerned for an adjudication thereupon by the latter. However, the afore -referred legal proposition constituted in the apposite rendition of this Court of the vice of staleness or obscurity engendered by the belated raising of an industrial dispute by a workman imbuing an impromptly raised industrial dispute by a workman has also been therein enunciated to stand scored off besides standing benumbed in the event of a workman unfailingly substantiating by adducing cogent evidence before the authorized officer of the appropriate government, of delay on his part in his raising an industrial dispute standing spurred by a tangible and sound explanation as also its manifesting qua his having by his overt acts concerted to redress his grievances against his employer hence his having kept it rejuvenated, alive besides surviving. The exception carved out in the rendition of this Court in CWP No. 1486 of 2007 qua the imprompt raising of the industrial dispute by the workman not acquiring the stain of it having stood eclipsed, as such, unreferable is of the workman relaxing its rigor by affording a sound explanation at the pre reference stage before the authorized officer of the appropriate government qua its imprompt raising. However, there is no material on record connotative of the workman having by adducing any cogent evidence before the authorized officer of the appropriate government seized of a failure report transmitted to him by the Labour Officer -cum -conciliation Officer concerned purveyed before him a tangible or sound explanation for the occurrence of a delay on his part in promptly raising it nor there is any emphatic material on record magnifying the fact of the delay of 9 years as has occurred on the part of the workman in raising it standing effacement or condonation constituted by the workman concertedly by taking overt steps for keeping it alive had not sequelled its fading for hence its being unreferable for adjudication to the Tribunal concerned. Omission on the part of the workman to (a) adduce evidence before the authorized officer of the appropriate government portraying therein any sound and tangible explanation on his part in explication of the delay as stood occurred in the imprompt raising of the industrial dispute by him (b) adduce before the competent authority of the appropriate government material personificatory of his having by taking overt steps for keeping it alive had not rendered it to eclipse necessarily constrains this Court to conclude qua hence the industrial dispute raised by the workman being construable to have faded or eclipsed by efflux of time. The sine qua non of the signification borne by the apposite parlance extracted hereinabove constituted in Section 10 of the Act is of its enjoining upon the workman to raise it promptly. The omission of adduction by the workman of the aforesaid material before the authorized officer of the appropriate government in explication of the delay in its raising by him imperatively engenders a formidable conclusion of the belated raising of the industrial dispute by the workman being amenable to a natural inference of its being no longer in existence or of its having stood faded besides eclipsed hence unreferable for adjudication by the authorized officer of the appropriate government to the Tribunal concerned. Preeminently the services of the petitioner having stood disengaged 9 years prior to his raising an industrial dispute with a ventilation therein of his services having stood illegally retrenched by his employer rendered the dispute to acquire the vice of staleness besides its being construable to be no longer surviving rather by efflux of time it having stood faded especially when no explanation is forthcoming from the workman qua its imprompt raising. The impugned order of the Deputy Labour Commissioner, in declining to formulate a reference qua it for its adjudication by the Tribunal concerned is in consonance with the verdict of this Court in CWP No. 1486 of 2007. Consequently, this Court does not notice any apparent legal infirmity with the order of the Deputy Labour Commissioner comprised in Annexure P -1 especially when it is founded upon the aforesaid decision of this Court.
(3.) THE learned counsel appearing for the petitioner has relied upon a judgment of the Hon'ble Apex Court rendered in Jasmer Singh vs. State of Haryana and another, : (2015) 4 SCC 458 wherein with the Hon'ble Apex Court in the relevant Paragraph 9 extracted herein -after having held qua provisions of Article 137 of the Schedule of Limitation Act being inapplicable to the apposite proceedings held by the Tribunal on its receiving an apposite reference from the competent authority constituted under the Act for an adjudication thereupon by it hence relief being affordable by the Tribunal concerned to an aggrieved workman when the former stands seized of a reference comprising the industrial dispute raised by a workman made to it by the competent authority even when the employer contests the relief claimed by the workman before it on the score of its standing baulked by the legal embargo of limitation. Apart therefrom the hereinafter extracted relevant paragraph of the judgment enjoins a mandate upon the Tribunal to on receiving a reference from the competent authority comprising the industrial dispute generated by the workman, for rendition of an adjudication thereupon by it to while discarding delay it standing empowered to mould relief to the workman, by declining backwages to him. "9. On issue No. 3, after adverting to the case of State of Punjab v. Kalidass and Anr. in C.W.P. No. 1742 of 1996, wherein the High Court has observed that the workman cannot be allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent -employer with reference to the said plea the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Co -operative Marketing -cum -Processing Service Society Ltd. and Anr., : 1999 6 SCC 82 in which it is observed by this Court that there is no period of limitation to the proceedings in the Act. Accordingly, Issue No. 3 is answered against the respondent -management. The relevant paragraph from Ajaib Singh's case are extracted herein below: "10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages.....";