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2023 DIGILAW 231 (RAJ)

Hari Charan Mali v. Assistant Engineer, Public Works Department

2023-01-19

ANOOP KUMAR DHAND

body2023
ORDER : Anoop Kumar Dhand, J. Instant petition has been filed by the petitioner with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this writ petition and - (a) by issue of an appropriate writ, order or direction in the nature thereof quash and set aside the impugned award dated 27.08.2015 (Annexure-1) passed by the learned Labour Court, Bharatpur and grant the reliefs as prayed for by the Petition in his statement of claim and direct the Respondents to take the Petitioner in service with all consequential benefits of continuity in service and payment of all consequential benefits from the date of his termination from service i.e. 2/12/1989; (b) award costs of this writ petition to the Petitioners; and (c) award such other further relief/s, as may be deemed just and expedient in the facts and circumstances of the present so as to give full relief to the Petitioner." 2. Learned counsel for the petitioner submits that without any notice, services of the petitioner were terminated by the respondents in violation of Section 25f of the Industrial Dispute Act 1947. Counsel further submits that the petitioner raised the industrial dispute before the Labour Court but the statement of the claim filed by him has been rejected on the ground that the dispute has been raised after a lapse of more than 19 years. Counsel submits that the Labour Court should not have rejected the application for statement of the claim of the petitioner on the ground of delay, hence, the interference of this Court is warranted. 3. Heard and considered the submissions made at bar. 4. Perusal of the record indicates that the date of termination is 01.09.1990 and no dispute was raised by the petitioner immediately after passing of the said order and the same was raised after a lapse of 19 years and 6 months. The impugned award indicates that the petitioner has not completed 240 days in a calendar year. 5. Hon'ble Apex Court in the case of Prabhakar v. Joint Director, Sericulture Department and Anr., reported in (2015)15 SCC 1 has held that stale claims should not be generally encouraged and allowed unless there is satisfactory explanation for delay. The impugned award indicates that the petitioner has not completed 240 days in a calendar year. 5. Hon'ble Apex Court in the case of Prabhakar v. Joint Director, Sericulture Department and Anr., reported in (2015)15 SCC 1 has held that stale claims should not be generally encouraged and allowed unless there is satisfactory explanation for delay. Hon'ble Apex Court held that if the dispute against termination is raised belatedly and the delay or laches remains unexplained, it would be presumed that the workman has waived his right against his termination. And the dispute raised after delay of 14 years was not entertained by recording the following reasoning in para nos. 34 to 41, 42.2, 42.3, 42.6, 44 and 45 as under: 34) To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term: 'Dispute': "to argue about, to contend for, to oppose by argument' to call in question-to argue or debate (with about or over),-a contest with words; an argument; a debate; a quarrel; 35) Black's law dictionary, 5th Edition, page 424 defines 'dispute' as under: "Dispute-A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined." 36) Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an 'industrial dispute' cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of petitioner on April 01, 1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for number of years? In other words, like in the instant case, what would be the consequence if after the termination of the services of petitioner on April 01, 1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workmen did not raise any protest and did not demand his reinstatement, the employer presumed that the workmen has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workmen, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a 'dispute' what had otherwise become a buried issue. 37) Let us examine the matter from another aspect, viz. laches and delays and acquiescence. 38) It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities". 39) This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act. 40) Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong. 41) Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent. 42.2 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 precondition. 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. 42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. 42.3 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 praesenti. 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. 42.6 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 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. 44) To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry. 45) On the application of the aforesaid principle to the facts of the present case, we are of the view that High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had not jurisdiction or power to make reference of a nonexisting dispute. 6. In view of the factual matrix of this case and law laid down by the Hon'ble Apex Court in the case of Prabhakar (Supra), I find no illegality in the order passed by the Labour Court. 7. In view of the above discussions, this writ petition is found to be devoid of merit and same is hereby dismissed.