Gujarat High Court
S. T. Karmachari Union Through G S ... vs Divisional Controller, Gujarat State ... on 9 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/76/2025 JUDGMENT DATED: 09/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 76 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 54 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
Approved for Reporting Yes No
√
==========================================================
S. T. KARMACHARI UNION THROUGH G S MAKRANI (WORKMAN)
Versus
DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT
CORPORATION, VADODARA DIVISION
==========================================================
Appearance:
MR PARESH J BRAHMBHATT(9788) for the Appellant(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) ADMIT. Learned advocate Mr.Naidu waives service of notice of admission. The matter is taken up for final hearing.
1. The present appeal is directed against the judgment dated 18.01.2024 passed by the learned Single Judge rejecting the Writ Petition filed by the appellant-original workman challenging the Page 1 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined award dated 20.02.2018 passed by the Industrial Tribunal, Vadodara in Reference (IT) No.102 of 2009.
2. Brief facts, as recorded by the learned Single Judge, are not in dispute. The same are incorporated as under:-
"2.1 The petitioner-workman was in service with the respondent- Gujarat State Road Transport Corporation, Vadodara Division (hereinafter referred to as "GSRTC") since 1987. It is case of the petitioner that while he was on duty on 13.07.2001 on the bus route of Kirtisthambh to Banboch, there were more than 79 passengers boarded in the bus and the petitioner had issued tickets to all the passengers, travelling in the bus. However, during surprise checking, two passengers were found without tickets and therefore, the petitioner was charge-sheeted for the misconduct for misappropriation of fare. It was case of the petitioner that false report was prepared by the Checking Inspector that though money was collected for fare from those two passengers, tickets were not issued. It was baseless and incorrect allegation for which, the petitioner was put to charge-sheet. The petitioner appeared in the inquiry proceedings and upon completion of inquiry, the Inquiry Officer held the charges as proved. Thereafter, the punishment order dated 29.09.2001 was passed wherein the petitioner was inflicted with stoppage of five increments with permanent effect.
2.2 Aggrieved by imposition of penalty dated 29.09.2001, the workman raised dispute before Industrial Tribunal, Vadodara registered as Reference (IT) No. 102 of 2009. Upon adjudication of the reference, the same was partly allowed by an order dated 22.09.2015. The Industrial Tribunal, Vadodara vide order dated 22.09.2015 reduced the quantum of punishment from stoppage of five increments to stoppage of two increments.
2.3 Aggrieved by the order, particularly reduction of quantum of punishment, respondent- GSRTC preferred writ petition before this Court. In Special Civil Application No.12117 of 2016, this court vide order dated 18.08.2017 directed the Industrial Tribunal, Vadodara to consider contention of the petitioner-corporation, regarding delay to initiate the proceedings by the workman and record its judgement in that regard, in accordance with law.
2.4 Pursuant to that, Reference (IT) No.102 of 2009 was heard by the Industrial Tribunal, Vadodara and the Tribunal by order dated 20.02.2018 rejected the reference of the petitioner-workman. Aggrieved by which, the present petition is filed."Page 2 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025
NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined
3. Learned advocate Mr. Brahmbhatt appearing for the appellant-original workman has submitted that the judgment and order passed by the learned Single Judge as well as the award which was impugned in the captioned Writ Petition are required to be quashed and set aside since the appellant was imposed punishment of stoppage of 5 increments for 5 years and hence, it was always open for the appellant to challenge the said action within those 5 years and in fact, after completion of 8 years, he has raised an industrial dispute, which was culminated into Reference proceedings, registered as Reference (IT) No.102 of 2009. It is submitted that for all these years, the appellant-workman has been deprived of 5 increments, which were stopped in view of the punishment order dated 29.01.2001 and hence, the Reference ought not to have been rejected on the ground of delay. While referring to the merits of the matter, he has submitted that the Labour Court has also recorded in Paragraph 10 of the award that the punishment imposed upon the workman was appropriate as he had admitted his misconduct of not issuing the tickets after collecting the money from the passengers. Learned advocate Mr. Brahmbhatt has also referred to the inquiry proceedings and also the cross-examination done on his behalf. He has submitted that it is an admitted fact that the bus in which he was traveling was overcrowded and he was unable to issue the tickets, though he has collected money from the passengers. Thus, it is urged that the judgment and order passed by the learned Single Judge confirming the award, and the award may be quashed and set aside.
4. Per contra, learned advocate Mr. Naidu appearing for the respondent-Gujarat State Road Transport Corporation (GSRTC) has urged that the impugned judgment and order passed by the learned Page 3 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined Single Judge may not be interfered with as the same is appropriately passed after examining the glaring fact of delay in raising the industrial dispute. He has submitted that in the earlier round of litigation, this Court had set aside the award passed by the Industrial Tribunal and has remanded the matter to the Industrial Tribunal after examining the aspect of delay in raising the industrial dispute. It is submitted that no explanation has been tendered by the workman in the Reference proceedings for the delay in raising the dispute. Learned advocate Mr. Naidu has also referred to the past misconduct and the punishment imposed upon the workman and urged that he is habitual in committing the similar offence. Learned advocate has further submitted that the issue is squarely covered by various judgments of the Apex Court in the case of Prabhakar v. Joint Director Sericulture Department & Ors., (2015) 15 SCC 1.
5. We have heard the learned advocates appearing for the respective parties. The established facts show that the appellant- workman was imposed punishment of stoppage of 5 increments for 5 years with future effect vide order dated 29.09.2001 for the proved misconduct of not issuing the tickets to the passenger despite having collected Rs.10/- from the passengers. The appellant-workman raised an industrial dispute after a period of almost 8 years, which culminated into Reference proceedings. It appears that thereafter, the Industrial Tribunal, Vadodara reduced punishment from stoppage of 5 increments to stoppage of 2 increments by passing the award dated 22.09.2015, which was assailed by the respondent-GSRTC by filing a Writ Petition being Special Civil Application No.12117 of 2016. The learned Single Judge, vide common judgment and order dated 18.08.2017 passed Page 4 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined in Special Civil Application No.9911 of 2016 and cognate Writ Petitions, set aside the award by observing thus:-
"6. The Tribunal has noted that, there was no challenge to the departmental inquiry in any of the three matters. Even after noting it, the Tribunal has re-appreciated the evidence and has substituted its own finding, including that the charge could not be said to have been proved against the workman. That part of the award may require closer scrutiny, however, there is an additional glaring aspect, which needs a mention and deliberation first.
xxxxxxx
11. For the reasons recorded above, the following order is passed.
11.1 These petitions are allowed.
11.2 The impugned awards passed by the Industrial Tribunal at Vadodara, the details of which are noted in para : 2.1 to 2.3 above, are set aside, for the purpose of remanding the matters back to the Tribunal, for recording its judgment on the point of delay raised by the petitioner Corporation, which has remained unanswered in the impugned awards."
6. Thus, the learned Single Judge, after noticing that the Tribunal though has recorded that there was challenge to the departmental proceedings, has re-appreciated the evidence and has substituted its own finding, including that the charge could not have been said to have been proved against the appellant-workman, and thereafter, has remanded the matter to the Tribunal for examining the issue of delay raised by the respondent-GSRTC. The aforesaid judgement was accepted by the workman, and was not assailed further. After the remand of the impugned award, the Reference proceedings has been rejected by the Tribunal on the ground of delay in raising the industrial dispute.
7. So far as the aspect of delay of more than 7 years in raising the industrial dispute is concerned, the same is not disputed by the Page 5 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined workman. It is also noticed by us that the workman did not keep the dispute alive and kept it pending for more than 7 years. It is contended before us that since the punishment order was stoppage of 5 increments, which was passed in the year 2001 and the workman was unable to earn since 5 increments, the Reference proceedings could not have been rejected on the ground of delay, as after the said punishment was over within a span of 3 years, he raised an industrial dispute.
8. We do not subscribe to the contentions raised by the learned advocate appearing on behalf of the appellant. The date of order on which the punishment is imposed becomes the relevant date. The impugned order of punishment was passed in the year 2001, and the date of punishment order becomes the relevant date in order to examine the aspect of delay in raising the dispute, and not the effect of the order. If the analogy canvassed by the learned advocate appearing for the workman is accepted, then it will lead to very anomalous and perilous circumstances, since even in case of termination/dismissal/removal of any employee which invites denial of all benefits including retirement benefits, an employee will have the right to assail it any time during his life time ignoring the huge unexplained delay. In order to tender a satisfactory explanation for delay in raising the industrial dispute, the appellant-workman is required to first contend before the Labour Court that the dispute has been kept alive by him, and he was in constant touch with the employer, and the discussions from time to time were taking place. No such evidence has been adduced before the Labour Court.
9. At this stage, the learned Single Judge, after referring to the judgment of the Apex Court in the case of Prabhakar (supra) and Page 6 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined various other judgments, has upheld the award passed by the Labour Court. The Apex Court, in the case of Prabhakar (supra), has observed thus:-
"28. The aforesaid case law depicts the following:
28.1 Law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.
28.2 The words "at any time" used in Section 10 would support that there is no period of limitation in making an order of reference.
28.3 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.
28.4 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.
x xxx x x 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. 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 Page 7 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined 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. 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 Page 8 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined 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."
10. We have also noticed that the Labour Court has also recorded the observations on merits of the matter and it is specifically recorded that since the workman had admitted his guilt, the punishment was appropriate. Since the learned advocates appearing for the respective parties have also made submissions on merits before us, we have examined the matter on merits also. The appellant-workman has categorically admitted his guilt and a letter dated 13.07.2001 has been written by him admitting the guilt in which he has admitted that though he has collected Rs.10/- from the passengers, he has not issued the tickets as the bus was overloaded. It is very curious to note that the appellant, who was serving as a Conductor, first allowed the bus to get overloaded and in such crowded situation, though he was able to collect Rs.10/,-
but was unable to issue tickets to the passengers from whom the fare was collected. Thus, there is an unambiguous admission by the appellant of his misconduct. The documentary evidence, giving the details of various punishment imposed upon the appellant- workman, also stands undisputed. The appellant-respondent appears to be habitual in committing the same offence. There were 26 offences, of similar nature, which has been committed by the appellant and he has also been imposed 17 punishments of withholding increments and on 24 occasions, he has been imposed fine and recovery has been made.
11. Thus, on an overall appreciation of the facts of the case, we do not find any illegality committed either by the Labour Court or by Page 9 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025 NEUTRAL CITATION C/LPA/76/2025 JUDGMENT DATED: 09/01/2025 undefined the learned Single Judge. The present appeal, sans merits, is dismissed.
(A. S. SUPEHIA, J) (GITA GOPI,J) Maulik/s2/1 Page 10 of 10 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:19 IST 2025