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Application No. 15 of 1982, decided on 29th February, 1984.
‑‑‑S.34‑‑Enforcement of settlement sought after expiry of prescribed period‑‑Held: Cannot be enforced.
1983 P L C 1195 rel.
‑‑‑-S.34‑‑Enforcement of settlement‑‑No period of limitation prescribed‑ Petition seeking enforcement after 8/10 years without explanation to justify delay‑‑Application after even about one year considered fatal and extremely belated‑‑Where no time is prescribed for doing a thing, it must be done within reasonable time‑‑Petition dismissed.
1983 P L C 1195; 1974 P L C (Notes) 74 at p. 40; 1982 SCMR 912 and 1975 P L C 631 rel.
Ch. Rashid Ahmad for Applicant.
M.A. Khan for Respondents.
This is an application under section 34 of the I.R.O., 1969 filed by the Forbes & Associated Concerns Workers Union through its General Secretary against the Messrs Forbes & Forbes Cambell & Company Limited and others for directing the respondent to act upon the settlement arrived at by the applicant and the respondent in July, 1972.
The facts in brief are that the applicant is a C.B.A. and a Trade Union of Workers duly registered while the respondents are a group of establishments and the parties have been entering into settlements with each other. The parties had entered into a settlement executed on 26‑7‑1972 which was to come with effect from 1‑7‑1972. Amongst others the crucial clause which has been a bone of contention was included as clause 5 of this settlement which reads as under: ---‑
"It has been decided that with effect from 1‑7‑1972, contribution to the provident fund shall be 8‑1/3% of the consolidated salary. Both the employees and the Company shall contribute an equivalent amount of the fund as per the Company's recognised provident fund Rules."
This settlement was effective for two years. Subsequently, other settlements were executed and arrived at in the years 1974 and 1976 wherein certain increases in wages and allowances were allowed to the workers and thus a consolidated salary in the respective years was higher because of the increases given by the terms of the respective settlement. Subsequent to this an industrial dispute arose on 1‑7‑1978. The parties came to this Court and during the pendency of the disputes a settlement was arrived at on 28‑10‑1979 which was submitted to the Court and was made an award. It is alleged that the charter of demands prepared in 1974 did contain the same demand, as in clause 5 of the earlier settlement of 1972, as demand No.12 but was not pressed by the Union. Under this demand the ratio of deduction was from 8‑1/3% to 10% of the basic salary. The respondents went on with the deduction ratio at 8‑1/3%. Hence the union demanded the deduction from the consolidated salary from 1972 by their letter dated 24‑11‑1982. The applicant has also filed a settlement of Provident Fund as worked out, approximately, from 1972 to November, 1982 in terms of clause 5 of the settlement of July, 1972. The applicant claims this guaranteed right denied by the respondent hence this application.
The respondent contested the petition and filed their reply statement on 25‑1‑1983 denying the case of the applicant. According to the respondent the applicant is enforcing its alleged right under a settlement executed in 1972 which expired in 1974 about 8 years ago. It is belated and suffers from gross laches and therefore liable to be dismissed. It is reiterated by the respondent that the present application is misconceived and not maintainable as this remedy is available to the Collective Bargaining Agent as a whole and the individual workman has a separate forum under the I.R.O., 1969 for the redress of his grievance. According to the respondents the applicant never raised the issue in any manner, at any time before its letter/demand of November, 1982. It is further alleged that clause 4(f) of the settlement of 1979 has no relevancy to the issue of consolidated /basic salary raised try the union with reference to clause 5 of the settlement of 1972. It is finally alleged that this Court has no jurisdiction in the matter hence the application be dismissed.
On 25‑1‑1983 the respondents filed an application requesting the Court to hear the legal objections first. The matter was fixed for this purpose on 7‑2‑1983. On 16‑3‑1983 the applicant filed counter‑objection to the legal objections raised by the respondent. My learned predecessor had heard the counsel for the respondents on 9‑4‑1983 and the counsel for the applicant on 7‑5‑1983. The matter was then being adjourned from time to time till 13‑9‑1983. By this time he was transferred and on this date notices were issued to the parties for arguing the matter afresh. The matter came up for argument on 21‑2‑1984.
I have heard the learned counsel for the respective parties and perused the legal objections taken by the respondent and also the counter‑objections. I have also perused the record and the photostat copies of the settlements between the parties. I have also gone through the award passed by this Court in November, 1979 on a compromise application between the parties.
Admittedly the contents of clause 5 of the settlement of 1972 were though included in the charter of demands prepared in 1974 at No. 12 but the union did not press the same hence it was not included in the settlement arrived at on 13‑8‑1974. In the settlement dated 16‑12‑1976 this clause 5 was again postponed till the Work's Council meeting. So much so that settlement between the applicant‑union and the respondents on 28‑10‑1979 does not mention anything about this deduction of Provident Fund as specified in clause 5 of the settlement of 1972. Moreover, in the compromise application moved by the parties before this Court in Application. No. 4/1979 there is no mention of this demand but it only speaks of the settlement of 28‑10‑1979 which was made the award on 14‑11‑1979.
Thus it will appear that the applicant by way of this application wants to enforce clause 5 of the settlement of 1972 which will appear from the above facts to have died out on the expiry of the specific period of two years. It is a settled law that the application under section 34 of I.R.O., 1969 filed after the expiry of period for which it was binding on the parties as mentioned in the settlement itself the benefits and rights conferred by settlement, could not be enforced for the period after expiry of settlement. The settlement of 1972, as already mentioned, was valid for 2 years during which the parties were bound. This, admittedly, has long expired hence it cannot be enforced. In this respect I am fortified by 1983 P L C 1195.
It has been contended on behalf of the applicant that no period of limitation has been prescribed for filing an application under section 34 of the I.R.O., 1969 hence it could be filed at any time. True, that no time limit has been fixed for filing such an application under I.R.O., 1969 but it has been settled that where no time is prescribed for doing a thing it must be done within a reasonable time. The reasonable time obviously cannot be eight years. In 1974 P L C (Notes) 74, page 40. it is held that application under section 34 of I.R.O., 1969 filed after about one year of the cause of action was fatal and extremely belated.
Same view has been taken in 1982 S C M R 912.
The applicant has also not moved any application under section 5 of the Limitation Act for condoning the delay and assign any explanation to justify the delay. In 1975 P I. C 631, the Hon'ble Appellate Tribunal (SLAT) did not condone the delay of 6 years and held that the matter was rightly dismissed. As already mentioned, in the instant case before me the alleged right created by clause 5 of tile settlement of 1972 is c sought, to be enforced after 8/10 years, which is not possible in view of the settled position of Law.
In view of the above reasons I am of the considered view that the present application under section 34 of I.R.O., 1969 is liable to be dismissed and so I order accordingly.
M. I.
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