Gujarat High Court
Raghuvirsinh Harisinh Jadeja vs Chief Officer Morbi Nagar Palika on 26 June, 2025
NEUTRAL CITATION
C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5096 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 5267 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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RAGHUVIRSINH HARISINH JADEJA
Versus
CHIEF OFFICER MORBI NAGAR PALIKA & ANR.
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 26/06/2025
COMMON ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of the Constitution of India challenging the award passed by the learned Labour Court in Reference (LCR) No.43 of 2016 rejecting the reference filed by the present petitioner on the ground of delay.
2. It is the case of the present petitioner that the petitioner was appointed on the Post of Clerk on 16.11.1996 and his service Page 1 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined was terminated on 22.07.1998. As per the claim of the petitioner that at the time of termination of service, dispute seeking relief of regularization was pending, however, without seeking any approval from the respondent, had put to an end the service of the petitioner, without following the mandatory provision of Section 33(A) of the Industrial Disputes Act. Challenging the order of termination passed in the year 1998, the reference came to be filed in the year 2006, which was registered as a reference LCR No.43 of 2006, petitioner had adduced the documentary evidence on record in the nature of demand notice, the press note suggesting the vacant post and the muster roll etc. As against the same, respondent has also produced the documentary evidence in addition to the evidence of chief examination suggesting the payment of retrenchment compensation and the notice. Learned reference Court, after considering the arguments advanced by both the parties, has concluded the reference against the present petitioner, which is subject matter of challenge before this Court.
3. Heard learned advocate Mr. Mishra for the petitioner. Page 2 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025
NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined
4. Learned advocate Mr. Mishra has submitted that the learned Labour Court has committed an error in dismissing the reference on the ground of delay, as Section 5 of the Limitation Act would not be applicable to the Labour laws. Learned advocate Mr. Mishra submits that after terminating the service of the petitioner, the work was carried out through out-source agency and though petitioner has established the existence of the work, learned Labour Court, instead of awarding the reference in favour of the petitioner, has dismissed the same. Learned advocate Mr. Mishra further submits that the witness of the respondent, in his cross examination, admitted that there were several vacant posts in the permanent set up of the Nagar Palika and due to the expansion of the Nagar Palika, work was also enhanced. Learned advocate Mr. Mishra submits that instead of holding the dispute alive, learned Labour Court has concluded the reference by holding the stale dispute and therefore, the impugned order deserves to be interfered with. 4.1 Learned advocate Mr. Mishra submits that the identically situated employees, namely, Jitendrabhai Bhugilal Raval whose service was also terminated along with petitioner, was directed Page 3 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined to be reinstated by the learned Reference Court in reference LCR No.160 of 2012. Learned advocate Mr. Mishra submits that several junior employees, who filed the reference challenging the termination order, which was passed along with the petitioner, has got the relief of reinstatement, however, learned Labour Court has dismissed the reference on the ground of delay in the case of present petitioner. Learned advocate Mr. Mishra submits that after termination of the service, the petitioner has filed the complaint I.T. No.24 of 1998, on rejection of the said complaint in the year 2012, the reference was filed in the year 2016. Learned advocate Mr. Mishra submitted that therefore, the findings arrived by the learned Reference Court that there was a delay of 18 years is erroneous, as from the 2012, if one would be counted delay up to 2016 then it comes to only four years, however, learned Reference Court, has committed error in concluding reference on the ground of delay against the present petitioner, therefore, petition is required to be allowed and the order passed by the learned Reference Court is required to be set aside.
5. Having considered the arguments advanced by the learned Page 4 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined advocate Mr. Mishra, on referring the reasons, it emerges that as per the claim of the present petitioner, he was serving as a Clerk from 16.11.1996 and getting the monthly wages of Rs.2850/- and his service was terminated on 22.07.1998. Claiming the relief of reinstatement, the reference came to be filed in the year 2016 i.e. on 09.06.2016. It is undisputed fact that petitioner had worked only for one and half years and had filed the reference after more than 18 years. For explaining the delay, the reasons was offered by the present petitioner is with regard to the pendency of the criminal complaint, which was dismissed in the year 2012. Even if this is accepted for the sake of acceptance then also it is the unexplained delay of four years which suggests stale dispute as described by the Hon'ble Apex Court in the case of Prabhakar Vs Joint Director Sericulture Department and Ors. reported in 2015 15 SCC 1.
5.1. In addition to that, it is alleged that there is breach of Section 25(F) of the Industrial Dispute Act. If one would refer the provision of Section 25(F), then it requires one month notice in writing or has to pay notice pay as well as the retrenchment compensation, which would be equivalent to 15 days average Page 5 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined pay, is required to be paid to the retrench employee. It is undisputed fact that at the time of retrenchment, the payment was offered of one month notice pay as well as the compensation and the cheque was sent, however, it was refused to accept by the petitioner and the envelop was produced below Mark 22/3. During the cross examination, it is admitted by the present petitioner that the address mentioned on the envelop is the same address where the petitioner is residing. 5.2 At this stage, this Court has referred the decision rendered by the Hon'ble Apex Court in the case of Pramod Jha v. State of Bihar reported in (2003) 4 SCC 619 wherein the Hon'ble Apex Court has held para 15 as under;
"15. In Sain Steel Products [AIR 2001 SC 2401 : (2003) 4 SCC at p. 628, below] which is a two-Judge Bench decision of this Court, the worker was informed "to collect what is due to him" without spelling out whether or not it included the amount as contemplated under Section 25-F. It was in such peculiar facts and circumstances of the case that this Court refused to accept the offer in the terms in which it was made and quoted hereinabove as amounting to making an offer in terms of Section 25-F of the Act. Both the Labour Court and the High Court had recorded a finding of fact that Section 25-F(b) was not complied with. Sain Steel Products case [AIR 2001 SC 2401 : (2003) 4 SCC Page 6 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined at p. 628, below] is clearly distinguishable and has no application to the facts of the present case."
5.3 This Court is of the view that there is bona-fide endeavour on the part of the employer to pay the retrenchment benefits along with the order of retrenchment, but workman avoids acceptance of the same with a view to invalidate the order of retrenchment. Therefore, the same can be treated as a sufficient compliance with Section 25-F of the Act.
5.4 In addition to that, the petitioner had also alleged the breach of Section 25 (G) and (H) by claiming that after termination of the present petitioner, the press note was issued, produced below Mark 10/2 calling the candidates for the posts of Head Clerk, Senior Clerk, Accountant and Auditor. On receiving or on knowing the said advertisement, it is undisputed fact that petitioner did not apply for the said post, neither has produced any documentary evidence that any particular employee was continued who is junior to the present petitioner. Though in the memo of the petition, the petitioner referred the certain names, however, that name was not stated before the learned Labour Court. Therefore, in absence of any pleadings, the learned Page 7 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined Reference Court has not adjudicated on the said aspect. The contention raised by the learned advocate Mr. Mishra that Section 5 of the Limitation Act would not be applicable in the Labour Laws, in that regard this Court has referred the decision rendered by the Hon'ble Apex Court in the case of Shalimar Works Limited V/s. Workmen reported in AIR 1959 SC 1217, wherein this Court has held para No.13 as under;
"There is no doubt that strictly speaking the order of the company discharging its workmen on April 6, 1948, when a dispute was admittedly pending was a breach of s. 33; (see Punjab National Bank Ltd. v. Employees of the Bank,(1)). The remedy for such a, breach is provided in s. 33-A and it can be availed of by an individual workman. If therefore it was felt by the workmen who were discharged on April 6, 1948, that there was breach of s. 33 by the company, they should have applied individually or collectively to the tribunal under s. 33-A. None of them did this. It is true that some kind of letter was written to the Assistant Labour Commissioner in November, 1949, but that was also very late and nothing seems to have happened thereafter for almost another three years, till the first reference was made on October 7, 1952. It is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any, reason there has been a wholesale discharge of workmen and closure Page 8 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even reemployment of most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under s. 33-A in this case; but neither that was done by the workmen nor was the matter referred for adjudication within a reasonable time. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the correct order to make. In addition, the reference in this case was vague inasmuch as the names of 250 workmen to be reinstated were not sent to the Industrial Tribunal and no list of these men was given to it till practically after the whole proceeding was over. Even the list then supplied was so bad that the Industrial Tribunal did not think it worthwhile to act upon it, and directed the company to give a notice to the strikers to ask for re- employment within a certain time. This the company had already done on July 5, 1948. That notice had gained con- siderable publicity, for the majority of the workmen did appear thereafter for re- employment by July 21. In the circumstances there was no reason for ordering reinstatement of any one on such a vague reference after such an unreasonable length of time. The defect, in the order-of discharge of April 6, due to permission not having been obtained under s. 33 can in the circumstances of this case be ignored on the ground that the workmen who did not rejoin in July 1948, were not interested in Page 9 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025 NEUTRAL CITATION C/SCA/5096/2025 JUDGMENT DATED: 26/06/2025 undefined reinstatement: firstly, on account of the circumstances in which that order came to be made after an illegal and unjustified sit-down strike, secondly, because the workmen in their turn did not avail themselves of the remedy under s. 33-A which. was open to them, and thirdly, because the reference was made after an unreasonable length of time and in a vague manner. We are therefore of opinion that the Appellate Tribunal should not have ordered the reinstatement of even the fifteen workmen in the circumstances as their case was exactly the same as the case of the hundred workmen, except in the matter of the withdrawal of the provident fund."
6. Considering the above ratio as well as the facts involved in the present case, this Court is of the view that for the service of less than two years, the dispute raised after more than 18 years would be a stale dispute and learned Reference Court is justifying in dismissing the reference on the ground of delay.
7. In above view, these petitions deserve to be dismissed.
8. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 10 of 10 Uploaded by Vikramsinh Amarsinh(HCW0055) on Thu Jul 03 2025 Downloaded on : Thu Jul 03 21:39:11 IST 2025