BIRU & Anr. v. DEPARTMENT OF FOREST AND WILDLIFE

CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No

#2. To be referred to the reporter or not?

#3. Whether the judgment should be reported in the Digest? NO No RAJIV SAHAI ENDLAW, J.

#1. The two petitioners impugn the award dated 29th January, 2008 of the Industrial Adjudicator deciding the following reference:- “Whether Shri Karan Singh S/o Shri Gyasi Ram and other four workmen (No. ii to v) have left their job on their own or their services have been terminated illegally and/or unjustifiably by the management and if so to what W.P.(C) 1960.11 relief is he entitled and what directions are necessary in this respect?” against the petitioners workmen.

#2. The petitioners workmen claim to have been appointed to the post of Mali/Beldar in the respondent Horticulture Department in July, 1988 and further claim to have been transferred to the Forest Department and working at Bhati Mines, Mehrauli Block, New Delhi as Mali/Beldar; they admit that they were employed as daily rated/casual/muster roll workers and being paid minimum wages; they claim that their services were terminated on 10th June, 1989 without assigning any reasons whatsoever.

#3. Though the services of the petitioners were claimed to have been terminated as aforesaid but the petitioners did not immediately raise any dispute whatsoever in this regard. The dispute of which reference was made was raised after 14 years from the date of alleged wrongful termination. The counsel for the petitioners on enquiry states that other workmen similarly situated and dealt with as the petitioners had immediately on termination raised a dispute and in which an award in their favour was made and upheld by the High Court and it is thereafter that the W.P.(C) 1960.11 petitioners, claiming to be entitled to the same relief, first filed a writ petition no.327/2000 in this Court and upon dismissal of the same with liberty to approach the Industrial Adjudicator, approached the Industrial Adjudicator as aforesaid.

#4. It was the case of the respondent employer before the Industrial Adjudicator that the petitioners were engaged as daily wager/casual workers and had never worked as Malis; that they had raised the dispute after long delay on false grounds; that they had worked for a few months and had thereafter abandoned their services of their own and in the said long span of 14 years neither approached the respondent nor sent any representation.

#5. The Industrial Adjudicator in the award impugned in this petition has recorded, the admissions of the petitioners that they had not made any representation or complaint with regard to the termination; that there was thus an inordinate delay and laches in filing the claim; that the petitioners had failed to prove that they had worked with the respondent for a period of 240 days; that on the muster roll produced by the respondent, the names of the petitioners were found to appear in July and August, 1988 only but W.P.(C) 1960.11 did not appear from October, 1988 till December, 1988 and March 1989 to June, 1989; that the petitioners had thus not worked with the respondent even in the capacity of casual labour for 240 days in a year preceding the termination. Accordingly, reference was decided against petitioners.

#6. The present writ petition also has been filed after three years from the award impugned herein.

#7. The counsel for the petitioners has argued that delay is of no relevance in Industrial/Labour jurisdiction and the only effect of delay is to mould the relief. He has also contended that the effect of the delay is to be considered at the time of reference and once the dispute had been referred it could not have been decided for the reason of delay. He contends that the respondent if aggrieved by the order of reference ought to have challenged the same.

#8. I am unable to agree. The petitioners for 14 years were satisfied with the action of the respondent. Just because some other workmen stated to be similarly situated as the petitioners succeeded against the respondent, would not entitle the petitioners to after such long lapse of time claim W.P.(C) 1960.11 relief. Moreover, in the present case there are findings of the petitioners having not even worked with the respondent continuously for 240 days in the year preceding the termination and which findings of facts on the basis of muster roll produced cannot in any case be interfered in exercise of the power of judicial review.

#9. Not only so, the long delay of over three years in preferring the petition is also inexplicable. The counsel for the petitioners fairly admits that no explanation for the said delay has been pleaded. The petitioners obviously are employed elsewhere and are pursing the present litigation as a wager. The process of this Court cannot be permitted to be abused in this fashion.

#10. The writ petition is dismissed. I refrain from imposing any costs. CM No.4150/2011 (for exemption). Allowed, subject to just exceptions. APRIL 25th , 2011 pp.. W.P.(C) 1960.11 RAJIV SAHAI ENDLAW (JUDGE)