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2018 DIGILAW 2199 (RAJ)

Sahayak Abhiyanta v. Surajmal Son of Ramchandra

2018-11-16

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : 1. Heard. 2. Admit. Notices need not be issued. 3. Counsel for the petitioner submits that the claims were raised by the workmen relating to the termination of 1983 in the year 1998 and reference was made in the year 1999 after a period of almost 16 years. It is also pointed out that the labour Court vide award dated 20.8.2018 granted relief to the persons whose applications had been earlier rejected by the Labour Court vide order dated 6.6.2016, copy of the order-sheet dated 6.6.2016 has been placed on record that the LRs of Chhote lal had moved an application for bringing LRs on record but the court found that Chhotelal himself had expired even before the reference was made and thus the application of Chhotelal was rejected. Similarly, the application relating to LRs of Shaffi Mohd. was also rejected. Learned counsel submits that the judgment passed by Hon’ble Apex Court in Prabhakar Vs. Joint Director Sericulture Department and anr. reported in AIR 2016 SC 2984 lays down as under: “40. On the basis of aforesaid discussion, we summarise the legal position as under: An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2A of the Act. Reference is made Under Section 10 of the Act in those cases where the appropriate Government forms an opinion that 'any industrial dispute exists or is apprehended'. The words 'industrial dispute exists' are of paramount importance unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in presentation. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy Under Section 2A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no “industrial dispute” within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.” 4. In the circumstances, learned counsel for the petitioner submits that as there is no whisper of any reason coming forward for the delay in raising the dispute and for 16 years the workman has remained quite in relation to his claim, and was not actively persuading his claim, in view of above judgment (supra), the dispute was required to be ousted by the Labour Court itself. Learned counsel further submits that the Labour Court while quoting the aforesaid judgment has failed to take note of the conclusion drawn by the Apex Court, and has wrongfully awarded sum of Rs.2.0 lacs to each claimant. 5. Per contra, learned counsel for the caveator who has stated at bar that he does not want to file reply and prays that the matter may be disposed of at the stage, submits that the award has been passed in consonance with principles laid down by Hon’ble Apex Court from time to time and as there is no limitation provided under the Act, the delay would not be said to be fetched for raising the dispute. The Labour Court has examined the said aspect and thus reached to the conclusion that the relief in the circumstances can be yielded if the dispute so raised is delayed. Since the order does not direct reinstatement but only directs for payment of compensation, no interference is warranted. 6. I have heard learned counsel for the parties and find that the Judge, Labour Court while deciding the dispute referred to it on 9.6.1999 (amended on 7.7.2009) has failed to take notice of earlier order dated 6.6.2016 wherein certain implications for the LRs were rejected. Such persons have also been included in the list of beneficiary of the award. The order to that extent itself stand vitiated. 7. With regard to the question relating to the delay in raising the dispute, it is true that there is no limitation provided under the Act and delay in raising the dispute would not ordinarily oust the claim for raising of the dispute but the conduct of such workman is required to be examined. 7. With regard to the question relating to the delay in raising the dispute, it is true that there is no limitation provided under the Act and delay in raising the dispute would not ordinarily oust the claim for raising of the dispute but the conduct of such workman is required to be examined. From the perusal of statement of claim filed by the workman as well as from the award and the statements which have been placed on record, it is clear that there is no reason coming forward for the untoward delay in raising the dispute. Sixteen years is a long time, it is not possible for the concerned employer to find out such an old document and also to find out the whereabouts of such workman. Thus a pragmatic approach has to be adopted while examining such a belated dispute. The Apex Court in the aforesaid judgment of Prabhakar’s case (supra), has succinctly considered the said aspect and this court respectfully follow the same. This court also finds that the Judge, Labour Court has wrongfully noticed the said para and ratio of the said judgment in its award. Thus the award dated 20.8.2018 stands vitiated and same is accordingly quashed and set aside. 8. The writ petition is accordingly allowed. No costs.