Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 849 (GUJ)

Pandor Ranabhai Bhalabhai v. State Of Gujarat

2024-04-12

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
ORDER : (Pranav Trivedi, J.) 1. The present Letters Patent Appeal preferred under Clause 15 of the Letters Patent assails the judgment and order dated 06.11.2023 passed by the learned Single Judge in Special Civil Application No. 3608 of 2022. 2. The prayers made in the writ petition preferred by the respondent herein – original petitioner was to quash and set aside the judgment and award dated 21.01.2020 passed by the labour court in Reference (LCH) No. 176 of 2015. 3. The learned Single Judge after taking into consideration the factual aspect and more particularly the ratio laid down by the Hon’ble Apex Court in the case of Prabhakar v. Joint Director, Sericulture Department & Anr., reported in (2015) 15 SCC 1 held that the Reference itself was not maintainable on the ground of delay and therefore, the petition was required to be allowed. On the said view point, the learned Single Judge allowed the writ petition and quashed and set aside the impugned judgment and award passed by the labour court in Reference (LCH) No. 176 of 2015. 4. The factual matrix which led to filing of the writ petition is that the appellant herein – original respondent was working as a daily wager – watchman since 01.01.1993. It is the case of the appellant that he was orally terminated with effect from 30.12.2005, whereas it is the case of the respondent – original petitioner that the workman abandoned the service from 30.10.2000. Pursuant to such dispute, the appellant raised an industrial dispute which culminated into Reference No. (LCH) No. 176 of 2015 and the labour court by way of award dated 21.01.2020 held that the appellant – original respondent was orally terminated and, therefore, he was required to be reinstated in service from 16.04.2015 along with 20% backwages and notional benefits. The labour court also awarded costs of Rs.2,501/-. The said award dated 21.01.2020 came to be challenged by the respondent – original petitioner by way of preferring writ petition being Special Civil Application No. 3608 of 2022. The labour court also awarded costs of Rs.2,501/-. The said award dated 21.01.2020 came to be challenged by the respondent – original petitioner by way of preferring writ petition being Special Civil Application No. 3608 of 2022. The learned Single Judge after hearing the parties has held that the reference is barred by delay and laches as it was preferred almost after a period of ten years and that the appellant - original respondent had not worked for more than 240 days in the previous years and as such, there was no breach of provisions of Industrial Disputes Act. Thus, considering the case of the respondent – original petitioner, the learned Single Judge was pleased to allow the writ petition which is impugned in the present appeal. 5. We have heard Mr. U.T. Mishra, learned advocate appearing for the appellant at the stage of admission hearing of the present appeal. The main bone of contention canvassed by learned advocate Mr. Mishra is that the learned Single Judge was not justified in allowing the writ petition on the ground that the Reference is barred by delay and laches. It is further contended by learned advocate Mr. Mishra that this aspect has been properly dealt with by the labour court in its judgment and award and, therefore, there was no reason for the learned Single Judge to allow the writ petition on such ground. In support of his submission, he has relied upon the decision of the Apex Court and this Court i.e. (i) in the case of Uttrakhand v. Rajkumar reported in (2019) 14 SCC 353 , (ii) in the case of Brahmbhatt Jayesh Bhupatray v. State of Gujarat rendered in Letters Patent Appeal No. 1554 of 2018 dated 13.03.2019; (iii) in the case of Bhavnagar Municipal Corporation v. Dharmendra B, Vegad rendered in Letters Patent Appeal No. 2990 of 2010 dated 30.12.2010 and in the case of Dhanjibhai Bhanabhai Alias Bhanjibhai Maru v. State of Gujarat rendered in Misc. Civil Application No. 1 of 2017 in Letters Patent Appeal No. 906 of 2016 dated 01.05.2018. Placing reliance on the ratio laid down in the aforesaid decisions, learned advocate Mr. Mishra has submitted that the case of Prabhakar (supra) would not be applicable to the facts of the present case and therefore, has urged to consider the case of the present appellant. 6. Having heard Mr. Placing reliance on the ratio laid down in the aforesaid decisions, learned advocate Mr. Mishra has submitted that the case of Prabhakar (supra) would not be applicable to the facts of the present case and therefore, has urged to consider the case of the present appellant. 6. Having heard Mr. U.T. Mishra, learned advocate on behalf of the appellant and having gone through the record, the primary bone of contention is as to whether the learned Single Judge was justified in allowing the writ petition preferred by the respondent – original petitioner on the basis of the ratio laid down by the Hon’ble Apex Court in the case of Prabhakar (supra). Having gone through the record, the first contention of learned advocate Mr. Mishra is that the labour court has categorically discussed the issue of delay. After having gone through the award, it has been observed that there is no attempt made by the labour court to make observation on the issue of delay. This aspect can be perused from the record on page 27 of the paper book. Pursuant to the termination in December, 2005, notice was challenged in the year 2015 and the statement of claim was filed in the year 2017. However, the labour court has not even whispered or dealt with such issue in the entire award. The entire award has been conducted without dealing with any such aspect. Even though it was observed and factually concluded by the labour court that termination is challenged at a belated stage, however, no observation is made by the labour court to deal with such delay and laches. As a matter of fact, pursuant to the ratio laid down by the Hon’ble Apex Court in the case of Prabhakar (supra), it was incumbent duty of the labour court to deal with such aspect and come to a conclusion as to why the reference was not barred. Having failed to do so, the learned Single Judge was justified in first considering the said aspect in writ petition and have confirmed the same by allowing writ petition. Therefore, we concur with the observations and reasoning given by the learned Single Judge in allowing writ petition. The learned Single Judge in toto has given reasoning for such conclusion which is reproduced hereunder :- 6. Therefore, we concur with the observations and reasoning given by the learned Single Judge in allowing writ petition. The learned Single Judge in toto has given reasoning for such conclusion which is reproduced hereunder :- 6. Having heard the learned advocates for both the sides and considering the reasoning given by the Labour Court for passing the impugned Judgment and Award in favour of the respondent- workman for directing the petitioner to reinstate the respondent- workman at his original post with 20% backwages from 16.04.2015 is concerned, the Labour Court has while considering the issue of breach of Section 25F of the Act, has relied upon the number of days worked by the respondent-workman in the year 1993-94 and not in the year 2005. The petitioner cannot be expected to give the documents of presence register etc. of the respondent-workman after a gap of more than ten years and therefore the Labour Court was not justified in drawing an adverse inference against the petitioner for applying provision of Section 25F of the Act. It is also apparent from the facts of the case that the dispute raised by the respondent-workman was a stale dispute and the Labour Court ought not to have entertained the reference on merits and ought to have rejected only on the ground of the delay and laches on the part of the respondent-workman in view of the observation made by the Hon’ble Apex Court in case of Prabhakar Supra wherein the Hon’ble Apex Court has held as under: “42. On the basis of aforesaid discussion, we summarise the legal position as under: 42.1. 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. 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. 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. 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 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. 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. 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. 42.4. 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. 42.5. 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. 42.5. 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. 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. 43. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be applied in the aforesaid perspective in such matters. 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.” 7. In view of the above decision of the Hon’ble Apex Court, as the reference itself was not maintainable on the ground of delay, the consideration of the case on merits would not arise and accordingly the petition stands allowed. The impugned Judgment and Award passed by the Labour Court is hereby quashed and set aside. Rule is made absolute. No order as to costs.” 6.1. Having come to such conclusion, we do not find any infirmity in the order passed by the learned Single Judge. 7. The second aspect is with regard to the ratio laid down in the decisions relied upon by the learned advocate for the appellant. The first decision in the case of State of Uttarakhand (supra) deals with the issue of lump sum compensation and it does not deal with the issue of belated reference. Therefore, this decision would not be applicable to the facts of the present case. The second decision relied upon is in the case of Bhavnagar Municipal Corporation (supra) wherein, while dismissing the appeal, this Court confirmed the award qua reinstatement with 10% backwages. The argument of the respondent in that case was with regard to consideration of issue of delay and laches, which was not considered. Further said decision is of the year 2010 that is prior to the ratio laid down by the Hon’ble Apex Court in the case of Prabhakar (supra). Thus, the ratio laid down by the Apex Court would hold the field and this decision would not be applicable to the present situation. The other decision is in the case of Brahmbhatt Jayesh Bhupatray (supra). Thus, the ratio laid down by the Apex Court would hold the field and this decision would not be applicable to the present situation. The other decision is in the case of Brahmbhatt Jayesh Bhupatray (supra). However, the said decision being dealt with is with regard to continuity of service and not with the issue whether the reference or award was barred by delay or laches. Therefore, this decision would also be not applicable to the facts of the present case. The last in line is in the case of Dhanjibhai Bhanabhai (supra) passed by this Court which is with regard to the review of the order passed in Letters Patent Appeal No. 906 of 2016 wherein the issue of delay was not considered in the main writ petition and upon submissions of the learned advocates, relief was appropriately moulded. Therefore, the ratio laid down by the Apex Court in the case of Prabhakar (supra) would come into play, and as such, these decisions would not be helpful to the appellant. Thus, the arguments as canvassed by learned advocate Mr. Mishra also fail to make his case good as to how such decisions would overturn the ratio as prescribed by Apex Court in the case of Prabhakar (supra). Hence, reliance placed by Mr. Mishra on such decisions are misconceived and therefore, the appeal fails. 8. In view of the above, the appeal being meritless, the same is hereby dismissed with no order as to costs.