Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF MARCH, 2016
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.27510/2015 (L-TER)
BETWEEN:
M/S ITC INFOTECH INDIA LTD.,
NO.18, PULIKESHINAGAR POST
BANASAWADI MAIN ROAD,
BANGALORE-560 005
REPRESENTED BY ITS
GENERAL MANAGER
MS. REMADEVI THOTTAHIL (MAJOR)
... PETITIONER
(BY SRI.KASTURI, SR.COUNSEL A/W
SRI. PRADEEP KUMAR J, ADVOCATE)
AND:
MR. VENKATARAMANA UPPADA
S/O LATE YELLAYYA REDDY
AGED ABOUT 46 YEARS
ND
R/O NO. 18, 2 CROSS,
THINDLU POST,
APC LAYOUT, VIDYARANYAPURA
BANGALORE-560 097.
...RESPONDENT
(BY SRI VENKATARAMANA UPPADA- PARTY IN PERSON)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 17.03.2015 PASSED BY THE III ADDL.
LABOUR COURT IN I.D.NO.6/2014 VIDE ANNEXURE-A AND
HOLD THAT I.D.6/2014 IS BARRED BY LIMITATION.
THIS WRIT PETITION BEING HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
In this Writ Petition, order dated 17.03.2015
passed in I.D.No.6/2014 by the Principal Labour Court,
Bengaluru, Annexure-A is impugned.
2. A claim petition filed under Section 2A(2) of the
Industrial Disputes Act, 1947 (for short `I.D.Act’) came
to be filed on 13.02.2014 by the respondent herein,
questioning termination letter dated 11.02.2009 –
Annexure-O. An interlocutory application under
Section 11-A of the I.D. Act read with Section 5 of the
Limitation Act, 1963 and Section 151 CPC –Annexure-P
came to be filed seeking for condonation of the delay of
3
730 days in filing the claim petition. Said application
having been allowed by the impugned order has been
called in question by the employer – Management in this
writ petition.
3. Heard Sri.K.Kasturi, learned Senior Counsel
appearing on behalf of petitioner and
Sri.Venkataramana Uppada, respondent appearing in
person.
4. It is the contention of Sri.K.Kasturi, learned
Senior counsel appearing for writ petitioner that Labour
Court is not vested with the power to condone the delay
under Section 2A(2) or under Section 10(4A) of the I.D.
Act when claim petition is filed beyond three years from
date of dismissal or discharge and as such application
for condonation of delay filed by employee ought to have
been dismissed by the Labour Court. He would
4
elaborate his submission by contending sub-Section (3)
of Section 2A of I.D. Act mandates that an workman can
make an application before expiry of three years from
the date of discharge, dismissal, retrenchment or
otherwise as provided under sub-section (1) and there
being a delay of 5 years 2 days in filing the claim
petition from the date of termination, Labour Court
ought not to have condoned the delay. He would also
submit that registry of the Labour Court itself had
raised office objection with regard to maintainability of
claim petition as noted in the order sheet Annexure-R
and as such Labour Court ought to have sustained said
office objection and it ought not to have condoned the
delay in filing the claim petition by allowing the
application filed by the respondent for condonation of
delay. Hence, he prays for allowing the writ petition and
5
rejecting the application for condonation of delay and
consequently dismissing the claim petition.
In support of his submissions, he has relied upon
following Judgments:
(1) (1973) 1 SCC 115
Sri.Amar Chand Inani Vs The Union of
India
(2) (2000) 2 SCC 455
Nedungadi Bank Ltd., Vs
K.P.Madhavankutty and others
(3) (2005) 7 SCC 447
Rajasthan State Road Transport
Corporation and others Vs Zakir
Hussain
(4) (2005) 7 SCC 300
Damodaran Pillai and others Vs South
Indian Bank Ltd.
(5) (2007) 1 SCC 283
Kendriya Vidyalaya Sangathan Vs
ArunKumar Madhavrao Sinddhaye and
another
6
(6) (2015) 6 SCC 412
Foreshore Coop. Housing Society Ltd.,
Vs Praveen D. Desai
(7) AIR 1966 SC 153
Pandurang Dhondi Chougule and
others Vs Maruti Hari Jadhav and
others
(8) AIR 1989 SC 1854
Pyare Lal Sharma Vs Managing
Director, Jammu and Kashmir
Industries Ltd. and others
(9) (2004) 107 FJR 155 (KAR)
KSRTC Vs Abdul Azeez (Kar)
(10) 2003-III- LLJ 118
Executive Engineer and others Vs
Lokesh Reddy and others
(11) Laws (SC)-1975-2-4
Commissioner of Sales Tax, UP Vs
Parson Tools and Plants, Kanpur
(12) Laws (KAR) - 2003-4-5
Executive Engineer BRLBC Division,
Shivamogga Vs Lokesh Reddy
(13) Laws (SC) - 2005-2-87
Haryana State Co-operative Land
Development Bank Vs Neelam
7
(14) ILR 2013 (KAR) 1024
Smt.Rukmini Bai and others Vs The
Divisional Controller NEKRTC, Bidar
(15) (1969) 2 LLJ -711
Nityanand M. Joshi and others and Life
Insurance Corporation of India and
others
(16) Unreported Judgment rendered in
W.P.18723/2015 dated 01.06.2015 –
The State of Karnataka Vs
Sri.K.Veergowda
(17) (1997) 7 SCC 556
P.K.Ramachandran Vs State of Kerala
and another
5. Per contra, Sri.Venkataramana Uppada,
respondent – party-in-person would support the
impugned order by contending that unless Management
demonstrates that prejudice would be caused to it, a
claim petition cannot be dismissed on the ground of
delay. He would submit that due to his lack of
knowledge, he had raised a dispute before the Assistant
Commissioner of Labour, Bengaluru, which was referred
8
to the appropriate Government by issuing G.O. and on
account of said dispute not being maintainable, he
withdrew the same and had filed the claim petition in
question under Section 2A(2) of the Act with an
application for condoning the delay and as such, period
spent from the date of reference made by the
appropriate Government till he withdrew the reference
and filed the claim petition under Section 2A(2) of I.D.
Act has to be excluded. Hence, he prays for dismissing
the writ petition. In support of his submission he has
relied upon the following Judgments:
(1) AIR 1987 SC 1353
Collector, Land Acquisition, Anantnag
and anr Vs Master Katiji and others
(2) AIR 2007 SC 3012
Director, Food and Supplies, Punjab and
Anr. Vs. Gurmit Singh
(3) Unreported Judgment in
W.P.1855/2006 and connected matters
disposed of on 14.07.2011.
9
6. Having heard the learned Senior counsel
appearing for the petitioner and respondent appearing
in person and having perused the records and also
bestowing my careful and anxious consideration to the
rival contentions raised, this Court is of the view that
following points would arise for consideration:
(i) “Whether Labour Court can entertain a
claim petition filed under Section 2A(2)
of Industrial Disputes Act,1947 after
three years from the date of discharge,
dismissal, retrenchment or services
otherwise terminated?
(ii) Whether Labour Court was justified in
condoning the delay of 730 days in
filing claim statement though sub-
section (3) of Section 2A barred such
claim?”
10
BRIEF BACKGROUND OF THE CASE:
7. Respondent was appointed as an IT consultant
by the petitioner on 05.07.2007. On 11.02.2009
respondent came to be terminated. Hence, a dispute
was raised by the respondent before the Assistant
Labour Commissioner, Bengaluru on 02.11.2012. The
appropriate Government by order dated 03.06.2013-
Annexure-N under Section 10(1)(c) of I.D. Act referred
the dispute to the Labour Court, Bengaluru for
adjudication. After seeking time to file a claim
statement, memo came to be filed by respondent on
07.11.2013 seeking withdrawal of the reference
contending interalia that said reference is not
maintainable. Hence, seeking permission to file fresh
application under Section 2A(2) of the I.D. Act, reference
was sought to be withdrawn with liberty to file a claim
11
petition as indicated therein. Contents of Memo dated
07.11.2013 reads as under:
“1. The reference is made by the
Government in the present application
and I am advised that the reference is
not maintainable under law.
2. I may be kindly permitted to file a
fresh application under Section 2-A(2)
of the I.D Act, 1947”.
3. My application dated 07.08.2013
LD 389/IDM/2013, dated 08.08.2013
(IDA-2/CR-385/2012-13) submitted to
the government has not yet been
disposed off. Hence, the present
application filed before this Hon’ble
Court may be dismissed so as to
facilitate filing of a fresh application
under Section 2-A(2) of the I.D. Act,
1947 OR pass any such other order
OR orders as this Hon’ble Court may
deem fit and proper in the interest of
Justice and Equity.”
On the strength of above referred memo, Labour Court
by order dated 07.11.2013 - Annexure-M dismissed the
reference.
12
8. Thereafter, respondent-workman filed a
claim petition –Annexure-O under Section 2A(2) of the
I.D. Act for adjudicating the issue of termination of his
services. Since there was delay in filing the claim
petition, interlocutory application-Annexure-P came to
be filed under Section 11-A of I.D. Act read with Section
5 of the Limitation Act, 1963 and Section 151 CPC,
seeking condonation of delay of 730 days. Said
application came to be resisted by the writ petitioner
before the Labour Court by filing counter statement as
per Annexure-Q. Labour Court after considering rival
contentions, by order dated 17.03.2015 - Annexure-A,
in I.D.NO.6/2014 allowed the application and condoned
the delay in filing the claim application which is
impugned in the present writ petition by the
Management.
13
9. Section 2A of the I.D. Act enables the
individual workman to raise a dispute connected with or
arising out of his discharge, dismissal, retrenchment or
otherwise termination of his services by his employer
and by legal fiction it would constitute “Industrial
Dispute”. No other type of dispute regarding an
individual workman is contemplated by Section 2A.
After the enactment of Section 2A, it is not necessary
that a dispute relating to the discharge, dismissal,
retrenchment or otherwise termination of service of a
workman must be sponsored by a trade union or a
substantial number of workman. In other words, even if
it is not sponsored by a trade union or a substantial
number of workman, such a dispute will be deemed to
be an industrial dispute. Section 2A of the ID Act reads
as under:
14
2A. Dismissal, etc., of an individual
workman to be deemed to be an
industrial dispute –
“(1) Where any employer discharges,
dismisses, retrenches or otherwise
terminates the services of an individual
workman, any dispute or difference
between that workman and his
employer connected with, or arising
out of, such discharge, dismissal,
retrenchment or termination shall be
deemed to be an industrial dispute
notwithstanding that no other
workman nor any union of workmen is
a party to the dispute.
(2) Notwithstanding anything contained
in Section 10, any such workman as is
specified in sub-Section(1) may, make
an application direct to the Labour
Court or Tribunal for adjudication of
the dispute referred to therein after the
expiry of forty-five days from the date
he has made the application to the
Conciliation Officer of the appropriate
Government for conciliation of the
dispute, and in receipt of such
application the Labour Court or
Tribunal shall have powers and
jurisdiction to adjudicate upon the
dispute, as if it were a dispute referred
to it by the appropriate Government in
accordance with the provisions of this
15
Act and all the provisions of this Act
shall apply in relation to such
adjudication as they apply in relation
to an industrial dispute referred to it
by the appropriate Government.
(3) The application referred to in sub-
Section(2) shall be made to the Labour
Court or Tribunal before the expiry of
three years from the date of discharge,
dismissal, retrenchment or otherwise
termination of service as specified in
sub-Section(1).”
10. By Act 24 of 2010, Section 2A was
renumbered as sub-Section(1) and by same Act i.e., Act
24 of 2010 sub-Section (2) and (3) came to be inserted
after Section 2A(1) of the I.D. Act. The said amendment
th
Act came into effect on and from 15 September, 2010.
In the absence of any specific provision to the contrary
Act 24 of 2010 is to be held operative prospectively.
11. The effect of amendment is that any
workman who has been discharged, dismissed,
16
retrenched or terminated as specified in sub-section (1)
of Section 2A may make an application directly to the
Labour Court or Tribunal for adjudication of his
individual dispute after the expiry of 45 days from the
date he has made an application to the conciliation
officer of the appropriate Government for conciliation of
the dispute. Sub-Section (3) of Section 2A lays down
the time limit for making such application to Labour
Court or Tribunal. It provides that such application to
the Labour Court or Tribunal for adjudication of the
dispute shall be made before the expiry of three years
from the date of discharge, dismissal and retrenchment
or otherwise termination of service as specified in sub-
Section(1).
12. A bare reading of above provision would
indicate that a dispute covered under sub-Section(1)
can be agitated or questioned by a workman by making
17
an application directly to the Labour Court or Tribunal
for adjudication of such dispute and such application
should be filed before the expiry of three years from the
date of discharge, dismissal, retrenchment or otherwise
termination of service. In other words, the right
conferred under Section 2A would lapse immediately
preceding the date of expiry of three years of the date of
dismissal, discharge etc. Sub-Section (3) of Section 2A
would operate independently. The right available to the
workman under Section 2A is not withstanding
anything contained in Section 10 of the ID Act.
13. Thus, question which would arise for
consideration in the instant case is; Whether dispute
raised beyond three years from the date of discharge,
dismissal or retrenchment can be entertained by the
Labour Court or Tribunal by condoning the delay if any
in raising the dispute or filing a claim petition or in
18
other words, if an application for condonation of delay
under Section 5 of the Limitation Act is filed, would it be
maintainable and such delay can be condoned?
14. Prior to incorporation of Section 2A a
workman had to necessarily depend upon the trade
unions to espouse his cause for seeking reference under
Section 10(1)(c) of the I.D.Act. The incorporation of
Section 2A enabled the workman to approach the
Labour Court or Tribunal directly and prevented the
mischief of unreasonable delay occasioning on account
of reference not being referred to by the appropriate
Government under Section 10(1)(c) of the Act.
15. Section 10(4A) of the I.D. Act introduced by
Karnataka Amendment Act 5 of 1988 enables an
individual workman to challenge a termination order by
directly applying to the Labour Court within six months
19
from the date of communication of such order of
termination.
16. The period of limitation for filing a petition
before the Labour Court is six months from the date of
communication of such order. A Division Bench of this
Court has held in KSRTC Vs KHALEEL AHMED AND
ANR reported in ILR 2002 (3) Kar 3827 that the period
of six months prescribed under Section 10(4A) cannot
be extended. It has been held by the Division Bench as
under:
“23. It seems quite clear to us that the
State Legislature has incorporated sub-
Section (4A) in Section 10 of the Act to
provide a more expeditious remedy to
the workman enabling him to redress
his grievances without undergoing the
ordeal of approaching any Labour
Union and without approaching the
State Government for referring his case
to the Labour Court. Therefore, the
remedy provided under sub-Section (4-
A) is a remedy alternative to what is
provided under sub-Section (1) of
20
Section 10 of the Act. But the right
created under the State Amendment is
coupled with a condition that
individual workman has to prefer
application before the Labour Court
within the time frame of six months
fixed by the legislature. It is a
statutory condition precedent for
exercise of the right and availment of
remedy under sub-Section (4-A) of
Section 10 of the Act. Therefore, it
has to be held that if an application
is filed beyond the period of 6
months as prescribed under the
above sub-Section, then it will be
incumbent on the part of the Labour
Court not to entertain such an
application since the condition does
not only bars the special remedy but
it also strikes at the jurisdiction of
the Labour Court to entertain such
an application. Such an
interpretation is in consonance with
the general rule of interpretation of
statute. Such construction will not
also in any way prejudice the right of a
workman to get his dispute resolved by
a reference under sub-Section 10(1) of
the Act provided the dispute sought to
be raised do not become stale because
of his inaction as held by the Supreme
Court in the cases of Balbir Singh Vs
Punjab Roadways, Indian Iron and
Steel Co. Ltd., Vs Prahlad Singh and
21
Telecom District Manager Vs
A.A.Angali”.
(emphasis supplied)
17. In EXECUTIVE ENGINEER AND OTHERS
VS LOKESH REDDY AND OTHERS reported in 2003
(3) LLJ 662 the point which came up for consideration
was whether the period of limitation provided under
Section 10(4A) of the Act is directory or mandatory and it
came to be held that it was mandatory. It has been held
as under:
“40. In view of the discussion made so far,
we respectfully disagree with the view taken
by the learned single judge in the present
matters in holding the period of limitation
provided under Section 10(4-A) of the Act as
directory and not mandatory and affirm the
view taken in the case of Khaleel Ahmed
(supra), which has already clarified the said
position of law holding the period of
limitation in Section 10(4-A) as mandatory.
So, the view taken by the Labour Court and
affirmed by the learned single judge in the
matters relating to period of limitation
provided under Section 10(4-A) of the Act,
being contrary to the Division Bench
22
decision of this Court in the Case of
Khaleel Ahmed (Supra) cannot be sustained
and consequently, the impugned awards in
allowing the applications filed after about
six years (and not within six months) under
Section 10(4-A) of the Act should have been
set aside by the learned single judge. Since
that was not done by the learned single
judge in the impugned order, our
interference is required”.
18. As to whether the plea of limitation though
not raised, is required to be considered by the Labour
Court or not while adjudicating a claim petition filed
under Section 10(4A), came up for consideration before
the Division Bench in SMT.RUKMINIBAI AND OTHERS
VS THE DIVISIONAL CONTROLLER, NEKRTC, BIDAR
DIVISION, BY ITS CHIEF LAW OFFICER reported in
ILR 2013 Kar 1024 and held that Section 3 of the
Limitation Act 1963, is peremptory in nature and
imposing a duty on the Court to dismiss the
applications which are barred by limitation even if the
23
plea of limitation is not raised. It has been held as
under:
“9. Section 3 of the Limitation Act, 1963,
is peremptory in nature. It imposes a
duty on the Court to dismiss the
applications, which are barred by
limitation even if the plea of limitation is
not raised. If the claim petition is
barred by time, the Court or an
adjudicating authority has no power or
authority to entertain such an
application and decide it on merits. As
stated, even in the absence of such a
plea by the respondent or opponent, the
Court or the authority must dismiss
such an application if it is satisfied that
the same is barred by limitation.”
19. Keeping the above principles in mind, a
reading of Section 2A(3) would lead to an irresistible
conclusion that time stipulated for invoking the
jurisdiction of the Labour Court or the Tribunal as the
case may be, has to be necessarily “ before the expiry
of three years from the date of discharge,
dismissal, retrenchment or otherwise termination
24
of service as specified in sub-Section (1).” Time
limit for making an application to the Labour Court
stipulated in sub-Section (3) of Section 2A does not
appear to have a bearing to the provisions of sub-
Section (2) of Section 2A. In any event right conferred
under Section 2A would lapse immediately preceding
the date of expiry of three years from the date of
dismissal, discharge etc.,. In other words, the
limitation of three years prescribed under sub-Section
(3) of Section 2A being mandatory, same cannot be
condoned by taking recourse to Section 5 of the
Limitation Act, 1963 which has no application to the
provisions of Industrial Disputes Act, 1947.
20. It is well settled principle that if an act is
required to be performed within a specified time, the
same would primarily be mandatory. It has been held
25
in the case of NAZIRUDDIN VS SITARAM AGARWAL
reported in AIR 2003 SCW 908 to the following effect:
“The Courts jurisdiction to
interpret a statute can be invoked when
the same is ambiguous. It is well known
that in a given case, the Court can iron
out the fabric but it cannot change the
texture of the fabric. It cannot enlarge
the scope of legislation or intention
when the language of provision is plain
and unambiguous. It cannot add or
subtract the words to a statute or read
something into it which is not there. It
cannot re-write or recast legislation. It
is also necessary to determine that there
exists a presumption that the legislature
has not used any superfluous words. It
is well settled that the real intention of
legislature must be gathered from the
language used.
26
21. Thus, in the background of the dicta of the
Apex Court in NAZIRUDDIN’s case referred to supra,
when Section 2A is perused, it would indicate that if the
legislature really intended that the period of limitation
provided in sub-Section (3) of Section 2A was to be
construed as directory, then it would not have
prescribed the limitation of three years and it would
have used the words “ at any time” instead of using the
words “ before the expiry of three years ”. Though the
words ` at any time’ is found in Section 10(1), same is
conspicuously absent in sub-Section(3) of Section 2A
which would clearly depict the intention of the
legislature namely, it had deliberately imposed
limitation period under sub-Section (3) of Section 2A
and as such legislature did not employ the words ` at
any time’ in the said provision as found in Section
10(1) and in its place, it has specifically incorporated
27
the words ` before the expiry of three years ’. Hence, to
interpret the period of limitation found in sub-Section
(3) of Section 2A as directory and not mandatory would
amount to adding something which is not provided in
the provision by the legislature or it would amount to
doing violence to the provision, if such interpretation is
sought to be made.
22. In the background of aforestated discussion,
when the facts of hand are examined, it would clearly
indicate that on the services of the employee –
respondent being terminated by the Management by
letter of termination dated 11.02.2009, a reference was
sought under Section 10(1)(c) (d) of the I.D. Act by the
respondent by submitting a representation to Assistant
Labour Commissioner, Bangalore on 06.09.2012. The
appropriate Government made a reference by order
28
dated 03.06.2013 - Annexure-N and pursuant to the
same, proceedings was commenced before the Labour
Court, Bengaluru in Reference No.16/2013. After
appearance of the respondent – employee before the
Labour Court and before filing of the claim petition, a
memo came to be filed on 07.11.2013 (part of
Annexure-M) seeking withdrawal of the reference and
permission to file a fresh application under Section 2A(2)
of the I.D. Act. The said memo was partially accepted by
the Labour Court as could be seen from the order dated
07.11.2013 (part of Annexure-M) passed on the said
memo. It reads as under:
“First Party present and filed
memo stating that the present
reference is not maintainable and he
intent’s to file fresh application under
Section 2A(2) of the I.D. Act.
29
Heard the respondent counsel.
Perused the memo filed by the first
party –workman for the reasons
mentioned in memo the reference is
hereby dismissed and case is closed.”
23. Though it can be gain said by the workman
that the reasons assigned in the memo has been
accepted and thereby liberty has been granted to the
workman to reagitate his claim by filing a claim petition
under Section 2A(2) of the I.D.Act and as such the claim
petition filed beyond the prescribed period is to be
condoned, requires to be considered with utmost
circumspection. In order to address this issue, it would
be appropriate to note the chronological date of events
which had unfolded in the instant case.
30
It can be summarized as under:
DATE PARTICULARS
08.06.2007 Date of appointment of workman
05.07.2007 Date of joining
11.02.2009 Termination letter (according to
workman)
06.09.2012 Application filed before Assistant
Commissioner of Labour, Bengaluru.
03.06.2013 Date of reference under Section 10(1)(c)
(d) of the I.D. Act by the appropriate
Government.
21.06.2013 Reference registered by the Presiding
Officer, III Additional Labour Court,
Bengaluru in reference No.16/2013.
22.07.2013 Notice issued to the workman by Labour
Court.
07.11.2013 Memo filed seeking dismissal of the
reference to facilitate filing of a fresh
application under Section 2A(2) of the
I.D. Act by the workman and order
passed by the Labour Court on the same
date.
13.02.2014 Claim petition under Section 2A(2) filed
before the Labour Court with an
application for condonation of delay of
730 days.
17.03.2015 Interlocutory application for condonation
of delay allowed by Labour Court.
31
24. As could be seen from the above referred
chronological events, the respondent – employee claims
to have been issued with an appointment letter on
08.06.2007 and contends that he joined duty with effect
from 05.07.2007 and was being paid salary till January,
2009. It is also contended by the respondent –
employee that termination of his services without
issuing charge sheet or conducting enquiry is arbitrary,
illegal and violative of the principles of natural justice
and as such, the termination letter dated 11.02.2009 is
bad in law.
25. It is not in dispute that the respondent –
employee being aggrieved by this action of the petitioner
– Management, filed an application before the Assistant
Labour Commissioner, Bengaluru on 06.09.2012 and
after considering the counter of the Management,
appropriate Government made reference to the Labour
32
Court by order dated 03.06.2013. The said reference
came to be registered by the Labour Court, Bengaluru
in reference No.16/2013 and notices came to be issued
to the parties and pursuant to the notices being issued,
both the parties appeared before the Labour Court.
However, before claim petition could be filed, as already
noticed herein above, the first party – workman i.e.,
respondent – employee withdrew the reference and filed
a claim petition under Section 2A(2) of I.D.Act on
13.02.2014. An application for condonation of delay in
filing the claim petition was also filed. In the affidavit
supporting the application for condonation of delay, it
has been contended that on account of certain
proceedings pending before various forum, he could not
file the claim petition under Section 2A(2) of the I.D.Act.
Hence, delay of 730 days in filing the claim petition was
sought for being condoned.
33
26. In view of the fact that sub-section (3) of
Section 2A having been held as mandatory and the said
provision clearly indicating that in case of dismissal,
discharge, retrenchment or termination, an application
referred to in sub-section (2) of Section 2A to be made
before the expiry of three years, i.e., on or before
10.02.2012 and same having not been made,
respondent – employee cannot be heard to contend that
delay is to be condoned. At the cost of repetition, it is to
be held that on the expiry of three years period from the
date of discharge, dismissal etc., the right to invoke
Section 2A would stand extinguished.
27. In view of the aforestated discussion, this
Court is of the considered view that Point Nos. (i) & (ii)
has to be answered in the negative namely, Labour
Court cannot entertain a claim petition filed under
34
Section 2A(2) of the I.D. Act after three years from the
date of discharge, dismissal, retrenchment or
termination and Labour Court was not justified in
condoning the delay of 730 days in filing the claim
petition.
28. In view of the fact that provisions of
Limitation Act, 1963 not being applicable or attracted to
the Industrial Disputes Act, 1947, question of invoking
Section 14 of the Limitation Act, 1963 to save the claim
of the respondent – employee for the period spent before
the wrong forum i.e., before the appropriate
Government from the date of filing of application before
Assistant Commissioner of Labour, Bangalore on
06.09.2012 to the date of withdrawal of the reference
before Labour Court on 07.11.2013 also does not arise.
Even otherwise, there is no explanation forthcoming for
the delay in not raising the dispute from 11.02.2009 to
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06.09.2012 i.e., from date of termination till the date of
filing of application before the Assistant Commissioner
of Labour, Bengaluru.
29. Thus, viewed from any angle, the impugned
order dated 17.03.2015 condoning the delay in filing the
claim petition by allowing the application filed under
Section 5 of the Limitation Act, 1963 cannot be
sustained.
Hence, I proceed to pass the following:
ORDER
1) Writ petition is hereby allowed.
2) Order dated 17.03.2015 passed by Presiding
Officer, III Addl.Labour Court, Bengaluru in
I.D.No.6/2014 - Annexure-A is hereby
quashed.
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3) I.A.No.I – Annexure-P filed under Section
11A of the Industrial Disputes Act, 1947,
Section 5 of the Limitation Act read with
Section 151 CPC is hereby rejected.
4) Consequently, I.D.No.6/2014 – Annexure-O
filed under Section 2A(2) of the Industrial
Disputes Act, 1947 is hereby dismissed.
5) Rule made absolute.
6) Costs made easy.
Sd/-
JUDGE
SBN/sp