KARPAGAVINAYAGAM, PERMOD KOHLI, J. - (1.) The petitioner-appellant was an employee under the respondents. He was dismissed from : service after enquiry on the basis of charge of absence from duty and for assaulting his immediate superior Officer. Reference has been made in the year 1991 on the demand notice dated September 14, 1987. The Tribunal considered the question of the dispute being stale and rejected the claim of the petitioner- appellant stating that there is ten years unexplained delay. This verdict was challenged before the learned single Judge in the writ petition. While confirming the verdict of the Tribunal the learned single judge held that there is long unexplained delay. This is the subject matter of this LPA.
(2.) Learned counsel appearing for the petitioner-appellant heavily relied on a decision of the Supreme Court Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Another AIR 1999 SC 1351 : (1999) 6 SCC 82 : 1999-I-LLJ-1260. He submits that mere delay would not suffice to reject the claim for reinstatement. It is vehemently contended by the learned counsel appearing for the petitioner-appellant that the Act intended not only to make provision for investigation and settlement of industrial disputes but also to preserve Industrial peace so that it may result in more production and improvement of the national economy. It is also pointed out by referring to Para 10 of the said decision that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Industrial Disputes Act and the relief cannot be denied merely on the ground of delay. It is also contended by the learned counsel appearing for the petitioner-appellant that the plea of delay is required to be proved by showing the real prejudice and not as a mere hypothetical defence.
(3.) We have heard learned counsel appearing for the respondents. He cited the judgment in Nedungadi Bank Ltd. v. K.P. Madhavankutty and others AIR 2000 SC 839 : (2000) 2 SCC 455 : 2000-I-LLJ-561, and Haryana State Coop. Land Development Bank v. Neelam 2005-I-LLJ-1153 (SC), and Indian Iron and Steel Co. Ltd. v. Prahlad Singh AIR 2001 SC 69 : (2001) 1 SCC 424 : 2000-II-LLJ-1653 in order to substantiate his plea that the respondents raised the plea of delay in making a stale claim even before the Tribunal as the first issue. He also submitted that Ajaib Singh's case (supra) referred to by the learned counsel appearing for the petitioner-appellants that it has been held in the facts situation and that would not apply to the present case. He also pointed out that in Ajaib Singh's case (supra), no plea had been raised by the employer with reference to delay but in this case, the point of delay has been specially raised before the Tribunal as an important issue, which has been dealt with by the Tribunal which in turn held that the delay is enormous and the same has not been explained. As pointed out by the learned counsel appearing for the respondents in the case of Balbir Singh v. Punjab Roadways and another (2001) 1 SCC 133 : 2001-I-LLJ-476 it was observed that the decision in Ajaib Singh's case (supra) was rendered on the facts and circumstances, particularly in view of the fact that the plea of delay was not taken by the employer in the proceedings before the Tribunal. As indicated above, in the case on hand, the plea of delay has been raised and the same was dealt with by the Tribunal and ultimately the Tribunal, on the basis of the materials placed by the employer as well as the employee before it, came to the conclusion that the claim has been made after ten years, which has not been explained. A similar observation has been made in Nedungadi Bank Ltd. v. K.P. Madhavankutty and Others 2000-I-LLJ-561 at p. 563: "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. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an Industrial dispute was ex facie bad and incompetent.";