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2024 DIGILAW 1347 (GUJ)

Baldevji Natvarji Solanki v. Executive Engineer

2024-06-20

BHARGAV D.KARIA

body2024
JUDGMENT : Bhargav D. Karia, J. 1. Heard learned advocate Mr.P.C.Chaudhari for the petitioner and learned AGP Ms.Shrunjal Shah for the respondent nos.1 and 2. 2. By this petition under Article 226 and 227 of the Constitution of India, the petitioner has challenged the Judgment and Award dated 31.03.2014 passed by the Labour Court, Ahmedabad in Reference (LCA) 495 of 2009, whereby the Labour Court has rejected the reference of the petitioner on the ground of delay as well as failure on the part of the petitioner to prove that the petitioner has worked for 240 days in the previous year from the date of termination of the service. 3. The brief facts of the case are as under: 3.1. The petitioner was working with respondent nos.1 and 2 since 05.03.1989 with monthly salary of Rs.1,550/- doing labour work of removing the testing materials in the laboratory at Changodar. During the period of his tenure, the petitioner was never issued any memo, show-cause notice or charge-sheet. The petitioner was also not provided with any document of employment i.e. identity card, attendance card, leave card or pay-slip. 3.2. During the course of employment on 02.10.1999, the petitioner was terminated without any prior intimation or notice, notice pay, in lieu of notice. The services of the petitioner were terminated without any domestic inquiry for payment of retrenchment compensation and respondent did not follow the mandatory provisions of 25F and 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”). 3.3. The petitioner being aggrieved by the termination, raised the industrial dispute in the year 2008, by filing an application before the Assistant Labour Commissioner with an application to condone the delay. 3.4. The Assistant Labour Commissioner made a reference being Reference No.495 of 2009 before the Labour Court, at Ahmedabad. The Labour Court after considering the reference as to whether the petitioner should be reinstated in service with continuity and with backwages or not, issued the notice to the respondents. The petitioner filed the statement of claim at Exhibit-4 contending that the petitioner is entitled to be reinstated with backwages as he has discharged continuous services for more than 10 years with the respondent nos.1 and 2. 3.5. The petitioner filed the statement of claim at Exhibit-4 contending that the petitioner is entitled to be reinstated with backwages as he has discharged continuous services for more than 10 years with the respondent nos.1 and 2. 3.5. The respondent nos.1 and 2 filed written submissions at Exhibit-7 contending that the petitioner has after the termination from the service in 1999 has raised the Industrial Dispute after more than ten years and he was doing service at other places and accordingly requested for dismissal of the reference. 3.6. After considering the evidences placed on record, the Labour court vide order dated 31.03.2014 rejected the reference filed by the petitioner and came to the conclusion that the petitioner has failed to prove that he has worked for 240 days with respondent no.1 and respondent no.2. Further the petitioner has also failed to show sufficient cause for the delay of ten years in preferring the reference. 4. Learned advocate Mr.P.C.Chaudhari appearing for the petitioner submitted that the Labour Court ought to have considered the reference on merits and instead of dismissing the same on the ground of delay. 4.1. Learned advocate Mr.Chaudhary submitted that no limitation is provided under the provisions of the ID Act. It was therefore submitted that the reference filed by the petitioner ought to have been considered, more particularly when the respondents did not raise any objection before the Assistant Labour Commissioner or with regard to the delay of ten years for raising the industrial dispute by the petitioner. 4.2. Learned advocate Mr.Chaudhary therefore submitted that the Labour Court could not have gone into the question of delay when the reference is made under Section 10 of the ID Act in absence of any objection by the respondent authorities with regard to the delay in raising the industrial dispute. 4.3. Learned advocate Mr.Chaudhary submitted that the industrial dispute was live when the petitioner preferred the reference and it cannot be said to be stale dispute more particularly as the petitioner had already filed an application to condone the delay which was not objected to or opposed by the respondent authority. 4.3. Learned advocate Mr.Chaudhary submitted that the industrial dispute was live when the petitioner preferred the reference and it cannot be said to be stale dispute more particularly as the petitioner had already filed an application to condone the delay which was not objected to or opposed by the respondent authority. It was therefore submitted that the delay caused by the petitioner was sufficiently explained and therefore the industrial dispute cannot be said to be a stale dispute on the date of filing of reference application by the petitioner before the Assistant Labour Commissioner which was already referred to the Labour Court. 4.4. Learned advocate Mr.Chaudhari submitted in alternative that even the petitioner is near the age of superannuation as on today and accordingly lumpsum compensation could have been awarded considering 10 years of service rendered by the petitioner from 1989 to 1999. 4.5. It was submitted by learned advocate Mr.Chaudhari that the respondent nos.1 and 2 have not challenged the reference made by the Assistant Commissioner before this Court under Article 226 or 227 if they were aggrieved that the reference is not maintainable due to the delay caused in filing the same by the petitioner. 4.6. Reliance was placed on the decision of the Division Bench of this Court in case of Danjibhai Bhanabhai Alias Bhanjibhai Maru Vs. State of Gujarat in Misc. Civil Application No.1 of 2017 in Letters Patent Appeal No.906 of 2016 in Special Civil Application No.9902 of 2015, to submit that Hon’ble Division Bench of this Court after taking into consideration the decision of the Hon’ble Supreme Court in case of Shahaji Vs. Executive Engineer, PWD reported in 2007 (115) FLR 674, wherein the reference was made after about 16 years from the date of termination of service of the workman and the Labour Court did not entertain the reference on the ground of delay, the Hon’ble Supreme Court observed that even if there was delay in making reference to the Labour Court, if it came to the conclusion that the termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay. It was submitted the Hon’ble Division Bench following the decision of the Hon’ble Supreme Court in case of Shahaji (Supra) recalled the dismissal of the LPA by directing the reinstatement of the applicant as in the facts of the case before the Hon’ble Division Bench, the termination was illegal. It was therefore submitted that in the facts of the case, the Labour Court ignoring the oral and documentary evidence on record has drawn an adverse inference against the petitioner to the effect that the petitioner did not work for 240 days in the previous year from the date of termination and the Labour Court has not given any reason, much less any cogent reason for arriving at such finding. It was submitted that the matter therefore either may be remanded back to the Labour Court for considering the issue of termination of the petitioner on merits instead of rejecting the reference on the ground of delay. 4.7. It was further submitted that this Court may also consider the request of the petitioner to grant lumpsum compensation and mould the relief as held by the Hon’ble Supreme Court in case of Shahaji (Supra) which is followed by the Hon’ble Division Bench in case of Danjibhai Bhanabhai (Supra). 5. On the other hand learned AGP Ms.Shrunjal Shah appearing for the respondent nos.1 and 2 submitted that the Labour Court has rightly rejected the reference on the ground of delay of more than 10 years as the petitioner failed to justify and explain the delay of ten years. It was submitted that the petitioner has slept over the matter for ten years and therefore the petitioner was not entitled to raise the industrial dispute as such dispute has become stale and cannot be said to be live. Reliance was placed on the decision of the Hon’ble Supreme Court in case of Prabhakar Vs. It was submitted that the petitioner has slept over the matter for ten years and therefore the petitioner was not entitled to raise the industrial dispute as such dispute has become stale and cannot be said to be live. Reliance was placed on the decision of the Hon’ble Supreme Court in case of Prabhakar Vs. Joint Director of Sericulture Department reported in 2015 15 SCC 1 , wherein the Hon’ble Supreme Court while considering the aspect of delay in preferring the reference has held that the Labour Court can also hold that there is not industrial dispute within the meaning of Section 2(k) of the ID Act and therefore no relief can be granted if the workman has not raised any agitation against his termination and the dispute is raised belatedly and the delay or laches remains unexplained, it would be presumed that the workman had waived his right or acquiesced into an act of termination and therefore at the time when the dispute is raised it had become stale and was not an existing dispute. 5.1. It was submitted by learned AGP Ms.Shah that the Labour Court has therefore rightly dismissed the reference on the ground of delay as the explanation given by the petitioner cannot be said to be an explanation which results into a live industrial dispute as the petitioner without giving any details has stated that he had approached respondent nos.1 and 2 and was not provided any work and he was not aware about the legal remedy available to him. It was submitted that such explanation is only an eye wash as the petitioner has slept over a matter for ten years and therefore it can be treated that the petitioner has accepted the factum of his termination and rejection thereof by the management and acquiesced into the said rejection. It was therefore submitted that no interference may be made while exercising extra ordinary jurisdiction under Article 227 of the Constitution of India. 5.2. It was further submitted that the alternative prayer of the petitioner also need not be granted as the petitioner has failed to show or demonstrate before this Court that he was without any work since 1999 and it is not possible to believe that the petitioner could have survived without any work. 5.2. It was further submitted that the alternative prayer of the petitioner also need not be granted as the petitioner has failed to show or demonstrate before this Court that he was without any work since 1999 and it is not possible to believe that the petitioner could have survived without any work. Reference was also made to the written statement filed before the Labour Court wherein it is contended that the petitioner was gainfully employed at a better place and therefore he had not raised any industrial dispute for ten years. It was therefore submitted that the petitioner need not be granted any lumpsum compensation as he has already accepted his termination and did not raise any dispute for about ten years. 6. Having heard learned advocates for the respective parties and considering the facts of the case, it is unfortunate that the petitioner has slept over his rights of availing the legal remedy to challenge his termination from services in the year 1999 after putting more than 10 years of service from 1989 onwards. The Hon’ble Supreme Court in case of Prabhakar (Supra) considering such aspect of delay has held as under: “26) The aforesaid case law depicts the following: (a) Law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. (b) The words 'at any time' used in Section 10 would support that there is no period of limitation in making an order of reference. (c) At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused. (d) Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard and fast rule regarding the time for making the order of reference. 27. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. 27. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/ Industrial Tribunal to decide the same issue coming before it. 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. 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 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. 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.” 7. In view of the above dictum of law, the reliance placed by the petitioner on the decision of the Hon’ble Division Bench as well as the decision of the Hon’ble Supreme Court in case of Shahaji (Supra) would not be applicable in the facts of the case, more particularly when the petitioner has failed to give a plausible explanation for the delay caused in preferring the reference in raising the industrial dispute. Merely because the respondents have not challenged the reference made to the Labour Court, the Labour Court cannot be said to be precluded from holding that there is no industrial dispute within the meaning of Section 2(k) of the Act as the industrial dispute has become stale dispute and non existing dispute on the date of raising such dispute by the petitioner. 8. In view of the above facts, the alternative contention raised on behalf of the petitioner to pay the lumpsum compensation is also not tenable as the petitioner has acquiesced himself in the termination of his services in the year 1999 and therefore the petitioner cannot now claim any compensation for the services rendered. The petitioner has also not placed on record any subsequent work done by him for his livelihood after his termination from 1999 onwards till today. In such circumstances, merely because the petitioner has raised industrial dispute after more than ten years, no lumpsum compensation can be awarded to the petitioner in view of such enormous delay as the industrial dispute has become a stale dispute and non existing dispute when such dispute was raised by the petitioner. It is true that no limitation is prescribed under the provisions of the ID Act, however in view of the decision of Hon’ble Supreme Court in case of Prabhakar (Supra), the Labour Court has rightly held such industrial dispute as stale dispute or non existing dispute on account of the delay caused in preferring such dispute and therefore it cannot be said that there was any industrial dispute within the meaning of Section 2(k) of the ID Act and therefore, has rightly not granted any relief to the petitioner. The petition therefore being devoid of any merit is accordingly dismissed. Rule is discharged.