The Deputy Conservator of Forests Vs P.Tata Rao and Others

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IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ]

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WPA/162/2019

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The Deputy Conservator of Forests

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Vs. P.Tata Rao and others

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Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi … for the petitioners

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Mr. Gopala Binnu Kumar … for the respondents

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November 8, 2024 [SR] Item Nos.7

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The challenge made in this instant proceeding to an award dated 7^th September, 2018 passed by the Presiding Officer, Labour Court, Andaman and Nicobar Islands, Port Blair.

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The reference made by the appropriate Govt. for adjudication by the Tribunal was as follows:

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“Whether the demand of 47 Daily Rated Mazdoors (Annexure A) represented by the Secretary, A & N Wildlife Workers Union, Port Blair to the Deputy Conservator of Forests (Wildlife) for extending the pay benefit to them in accordance with the Govt. of India, Department of Personnel & Training OM No.49014/2/86-Estt(C) dated 07.06.1988 at the rate of 1/30^th of the pay plus Dearness Allowance for day’s work of eight hours at the minimum of the same nature of work is legal and entitled?”

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The brief facts of the case are that the respondents were working as Daily Rated Mazdoors (DRMs) under the Deputy Conservator of Forests (Wildlife), Port Blair. There were all engaged since 1986. They were subsequently absorbed in the permanent service in the Deputy Conservator of Forests (Wildlife) as Group-D staff sometime in the year 1993.

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They claim that from 1986 to 1993 they ought to have paid wages and salaries equivalent @ 1/30^th of the pay plus dearness allowance for day’s work of eight hours in terms of DoPT OM No.49014/2/86-Estt(C) dated 07.06.1988. The said communication has been adopted, applied and implemented by the A & N Administration.

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The employer and the employees led evidence before the Court below. The award held that the petitioners 47 in numbers, were entitled to the benefit of the Circular dated 07.06.1988 from the date of their first engagement till their regularisation.

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Mr. Shatadru Chakraborty, learned counsel for the petitioners herein would argue before this Court that a specific ground was raised before the Labour Court that the claim of the workmen is time barred as it was raised that after lapse of ten years.

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The work undertaken by the respondents herein is seasonal in nature and therefore, question of benefit of the Circular dated 07.06.1988 does not arise.

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It appears that the Labour Court has not even addressed the said issue of delay, laches and acquiescence of the claim by the workmen.

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Mr. Chakraborty would argue while the Industrial Dispute Acts, 1947 does not prescribe any period of limitation, the principles of delay and laches would apply and stale-claim should not be entertained by the Tribunal. Inordinate and unexplained delay would in fact mean that there was no industrial dispute existing for reference.

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A reference, therefore, made by the appropriate government ignoring the delay and laches should fail and be treated as no reference at all. It is also argued that the workman has no right of relief after inordinate delay and the principles of waiver, acquiescence and estoppel would apply against them. It should be treated that the workmen has accepted the stand of the employer sub-silentio . It is argued that the delay defeats equity.

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Mr. Chakraborty further argues that when a power is conferred by statute without mentioning the period, the Tribunal must exercise its power reasonably and should ignore and not grant relief to stale and belated claims.

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Mr.Chakraborty lastly argued that a right not exercised for a long period of time must be treated as non-existence. The principle of delay defeats equity must be applied and the award is therefore not sustainable in law. The Tribunal should have rejected the claims of the respondents.

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He submits that if the courts ignored the above principles, the same would create disharmony in the industry.

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Reliance are placed in support of the aforesaid propositions, in the cases of Nedungandi Bank Limited vs. K.P.Madhavankutty and others reported in ( 2000) 2 SCC 455; Haryana State Cooperative Land Development Bank vs. Neelam reported in (2005) 5 SCC 91; Krishi Utpadan mandi Samity, Manglor vs. Pahal Singh reported in (2007) 12 SCC 193; State of Karnataka and another vs. Ravi Kumar reported in (2009) 13 SCC 746; Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota vs. Mohan Lal reported in (2013) 14 SCC 543; Prabhakar vs. Joint Director, Sericulture Department and another reported in (2015) 15 SCC 1.

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This Court notes that in each of the above cases, the subject matter of challenge was a dismissal or termination of the service of the workman in question and a belated reference or approaches to the Tribunal of such cases of dismissal was held to be fatal to the claim itself. The said cases are, therefore, distinguishable on facts and cannot be applied in the instant case.

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Mr. Chakraborty next argued that each of the aforesaid workmen have been permanently absorbed in the service of the Chief Conservator of Forests. The claim of the workmen in the reference would amount to a double benefit being claimed by the workmen.

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This Court cannot accept the argument as a claim for permanent absorption and a claim for approved rate of wages stand are independent of each other. Grant and receipt of one benefit cannot negate the other.

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Per contra Mr. Gopala Binnu Kumar relies upon a decision of the Division Bench of this Court in the case of The General Manager vs. R. Alangaram and others reported in 2023 0 Supreme (Cal) 608.

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In fact, in the said case, the Division Bench was dealing with claim of employees also filed belatedly after nearly 15 years for the same benefit of 1/30^th of the pay plus dearness allowance in terms of the aforesaid DoPT Circular dated 07.06.1988.

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In the said decision, the Division Bench has found that the claim of a workman to arrears of wages is a continuous cause of action.

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Reliance was placed on the decision of the Surinder Singh and another vs. Engineer-in-Chief, CPWD and another others reported in AIR 1986 SC 584 . The said decision also refer to the case of Nadungadi Bank Limited (supra) and several other decisions of the Supreme Court. 22. It was held that no straight jacket formula can be laid down to defeat a belated claim raised before the industrial Tribunal in respect of any of workman’s entitlement. Each claim has to be assessed in the facts of the case. The explanation for delay must be considered by the Court and Tribunal.

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This Court find that since the decision of the Supreme Court in the R.Alangaram (supra) is binding on this particular Bench, the observations at paragraphs 33, 36 and 38 of the judgment are necessary for being set out herein below.:-

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“33. To the mind of this Court, the above noted pronouncement of the Hon’ble Division Bench makes it amply clear that receipt of benefits by the workmen under the Memo. dated 7th June 1988, which itself traces to the legal position underscored by In Re: Surinder Singh

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(supra), remains a constitutional entitlement of the workmen. To the further mind of this Court, such constitutional entitlement cannot be wiped away when the present workmen stake their claim to it by filing a Second Reference. It does not stand to reason that the such constitutional entitlement would end with the workmen in the First Reference. It again stands to reason that the employer/ANIIDCO is estopped from arguing waiver/acquiescence qua the similarly circumstanced workmen in the Second Reference staking claim to their constitutional entitlement.

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With reference to the above discussion, this Court is persuaded to take notice of the pronouncement of the Hon’ble Supreme Court In Re: Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation and Others., reported in 2013) 1 SCC 353 at Paragraph 14.

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“14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga

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Prasad v. Chief Controller of Imports and Exports, LAO v. Katiji, Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, Dayal Singh v. Union of India and Shankara Coop. Housing Society Ltd. v. M. Prabhakar.”

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Therefore, in the context of the aforementioned discussion this Court is ad idem with the position of law as pronounced In Re: Tarsem Singh (supra) to the extent that the denial of their constitutional entitlement in the facts of the present case constitutes a continuous wrong suffered by the present respondents/the workmen which has been correctly redressed by the Award in the Second Reference as upheld by the Hon’ble Single Bench.”

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In the backdrop of the above, while the earnest and sincere submissions made by Mr.Chakraborty cannot be brushed aside completely, one must assess the reasoning behind the delay and laches of a workman to seek remedy for his grievance before the authority under the 1947 Act.

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The poor workmen were already Daily rated and were at the mercy of the employer for engagement and payment. They hence were in no position to bargain for higher wages for being in fear of losing their jobs.

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It is well settled that not every case of delay becomes fatal to claim of a workman if there is a satisfactory explanation for the same. The claim of a workman for appropriate wages and that too guaranteed under the circular of the DoPT dated 07.06.1988 must be understood to be a guaranteed right to the workmen. No amount of waiver and estoppel can be read to deny such guarantee to the workmen. In fact, the observation of a Division Bench in the R.Alanaram (supra) that the same is a continuous cause of action applies in all respects to the instant case.

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The argument of Mr Chakraborty for the petitioners herein that the Tribunal ought to have dealt with the same for

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whatever it is worth, however, cannot be rejected. The Tribunal, according to this Court, has miserably failed in its responsibility to address the points raised by a party to a reference before it.

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This Court would have normally remanded the matter back to the Tribunal for consideration afresh on the question of delay and laches. I have not chosen to do so since the workmen have a legitimate expectation to have their claims decided as expeditiously as possible, the remand of this award for fresh consideration would further delay would deprive the entitlement of the poor workmen.

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For the reasons stated herein above, this Court is of the view that the delay of about 9 to 10 years, as opposed to the delay of 15 years in Alangaram case (supra) should not stand in the way of relief to the workmen in question.

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The writ petition, therefore, fails and hereby dismissed. 31. This Court however records appreciation for the efforts put up by Mr. Chakraborty in arguing the matter and placing several cases in support of his client claim against the workmen.

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There shall be no order as to costs.

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Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.

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( Rajasekhar Mantha, J. )

The Deputy Conservator of Forests v. P.Tata Rao and Others

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