Brihanmumbai Mahanagarpalika R North ... vs Zamir Abdul Sattar Shaikh Since ...
2026 Latest Caselaw 3774 Bom

Bombay High Court

Brihanmumbai Mahanagarpalika R North ... vs Zamir Abdul Sattar Shaikh Since ... on 16 April, 2026

Author: Amit Borkar

Bench: Amit Borkar

2026:BHC-AS:17757
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                            Shabnoor
                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CIVIL APPELLATE JURISDICTION

                                                    WRIT PETITION NO.9089 OF 2023

                            Brihanmumbai Mahanagarpalika
                            R North Division, Jaywant Sawant Road,
                            Dahisar (West), Mumbai 400 068                               ... Petitioner
                                             V/s.
                                1. Zamir Abdul Sattar Shaikh
                                   (Since Deceased) Through LHR.
                              (a) Abdul Satttar Shaikh
     SHABNOOR                     (Since Deceased)
     AYUB
     PATHAN
                            (a)(a) Munawwar Abdul Sattar Shaikh
     Digitally signed by
     SHABNOOR AYUB
     PATHAN
     Date: 2026.04.16
                            (a)(b) Anjuman Abdul Ajaj Damanwal
     13:23:00 +0530

                              (b) Chandbibi Abdul Sattar Shaikh
                                  (Since Deceased)
                            (b)(a) Munawwar Abdul Sattar Shaikh
                            (b)(b) Anjuman Abdul Ajaj Damanwal
                                   Room - 394/A Chawl 50,
                                   M.H.B. Colony Gaikwad Nagar
                                   Gate No.8 Malowani Malad (West)
                                   Mumbai - 400 095.                                     ... Respondents

                            Mr. Prashant Kamble a/w Mr. Santosh Parad, for the
                            Petitioner - BMC.
                            Mr. Haresh A. Shivdasani, for Respondents.
                            Mr. Pandurang Borse, Superviser, from SWM Dept. is
                            present.


                                                 CORAM                : AMIT BORKAR, J.

                                                 RESERVED ON          : APRIL 9, 2026

                                                 PRONOUNCED ON        : APRIL 16, 2026



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 JUDGMENT:

1. By the present Petition instituted under Articles 226 and 227 of the Constitution of India, the Petitioner has assailed the Award dated 11 April 2019 passed by the learned 2nd Labour Court at Mumbai in Reference (IDA) No.181 of 2013.

2. The facts giving rise to the present Petition, in brief, are that the deceased employee, namely Mr. Zamir Abdul Sattar Mohamed Shaikh, sought reinstatement in service along with full back wages with effect from 25 June 2003, contending that the cause of action had arisen on the said date. It is the case of the Petitioner that though the alleged cause of action is stated to have arisen on 25 June 2003, the industrial dispute came to be raised only in the year 2013 after an inordinate and unexplained delay of nearly ten years. According to the Petitioner, the claim for reinstatement with full back wages was therefore hopelessly belated and was vitiated by delay and laches, the dispute having not been raised within a reasonable period. It is further contended that on the date when the Reference was made, no industrial dispute either existed or was apprehended, and consequently the Reference made under Section 10 of the Industrial Disputes Act, 1947 was not maintainable in law. It is the further case of the Petitioner that the deceased workman was engaged only on ad hoc / Badli (substitute) basis and was neither appointed against any permanent post nor on any regular establishment. His engagement, according to the Petitioner, was purely contingent and need based, and he was called upon to work only as and when his services were required. The Petitioner contends that a Badli or

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substitute workman has no vested or enforceable right to employment or continuity in service and cannot claim parity with an employee appointed on permanent basis or even on probation. It is submitted that unlike a probationer, a Badli workman cannot claim deemed confirmation merely upon completion of any particular period of service, and no right accrues in his favour for seeking regularisation or permanency.

3. On the aforesaid premise, the Petitioner contends that having regard to the nature of the deceased workman's engagement, he was not entitled to invoke the provisions of the Industrial Disputes Act, 1947 for the reliefs as claimed by him, and consequently the Labour Court lacked jurisdiction to entertain and adjudicate the Reference. It is further contended by the Petitioner that the alleged dispute was not raised within a reasonable period and that there was complete absence of diligence on the part of the deceased workman in prosecuting the alleged claim. According to the Petitioner, the Reference was therefore liable to be rejected on the ground of delay and laches alone. It is additionally the case of the Petitioner that the deceased workman had not completed 240 days of continuous service during the period of twelve months immediately preceding the alleged date of termination, namely 25 June 2003. In the absence of fulfilment of the said statutory requirement, the provisions of the Industrial Disputes Act, 1947 were, according to the Petitioner, not attracted, and no protection or relief thereunder could have been granted to the deceased workman.

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4. The record further indicates that the deceased workman approached the office of the Labour Commissioner and raised an industrial demand seeking reinstatement in service, conferment of permanency, and payment of full back wages with effect from 25 June 2003. Upon failure of the conciliation proceedings, a failure report came to be submitted, pursuant whereto the Appropriate Government made a Reference under Section 10 of the Industrial Disputes Act, 1947 to the Labour Court at Mumbai for adjudication. Pursuant thereto, the deceased workman filed his statement of claim before the Labour Court. The said claim was opposed by the present Petitioner by filing its written statement, whereby the allegations made in the statement of claim were denied and the maintainability of the Reference itself was specifically disputed. During the pendency of the Reference proceedings, the deceased workman expired on 09 November 2014, whereupon his legal heirs were brought on record in accordance with law and the proceedings thereafter came to be continued by them. Upon hearing the parties and considering the material placed on record, the learned Labour Court proceeded to pass the impugned Award dated 11 April 2019, which was thereafter published by the Government on 8 July 2019. Being aggrieved and dissatisfied with the said Award dated 11 April 2019, the Petitioner has preferred the present Petition.

5. The learned Advocate appearing for the Petitioner submits that the Labour Court has failed to properly appreciate the pleadings and documentary material placed on record, including the affidavit in lieu of examination in chief tendered by the father

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of the deceased workman, namely Mr. Abdul Sattar Shaikh, as also the correspondence produced in the proceedings, which, according to the Petitioner, clearly demonstrated that the deceased workman was suffering from illness from 25 June 2003 and had not thereafter reported for duty. It is submitted that the findings recorded by the Labour Court on the said aspect are erroneous, perverse, and contrary to the evidence available on record.

6. It is further submitted that the alleged industrial dispute came to be raised after an inordinate and unexplained delay of nearly ten years from the alleged date of termination, namely 25 June 2003, and as such the dispute had become stale, dead, and non-existent in the eyes of law.

7. The learned Advocate for the Petitioner submits that the Labour Court has failed to follow the settled principles of law laid down by the Supreme Court in the decisions of Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455, wherein it has been categorically held that stale disputes cannot be referred for adjudication under Section 10 of the Industrial Disputes Act, 1947, and that there must exist a live and subsisting industrial dispute on the date of making of the Reference. It is contended that in the present case, on the date of the Reference, namely, 12 July 2013, no industrial dispute either existed or could reasonably be said to have been apprehended. It is further submitted that despite recording a finding regarding delay in raising the dispute, the Labour Court has erroneously proceeded to grant full back wages for the period from 25 June 2003 till 9 November 2014, which is contrary to settled legal principles governing grant of back wages.

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Reliance is also placed on the judgment of the Supreme Court in Krishi Utpadan Mandi Samiti v. Ved Ram , (2012) 4 SCC 496, wherein it has been held that back wages ought not to be awarded for the period attributable to delay in raising the industrial dispute. According to the Petitioner, no reasons have been assigned by the Labour Court for not following the said binding precedent.

8. It is further submitted that the impugned Award appears to have been passed more on sympathetic considerations than upon settled principles of law. According to the Petitioner, the law declared by the Supreme Court is binding in nature and could not have been ignored by the Labour Court in absence of cogent and justifiable reasons. It is also contended that the Labour Court has failed to examine whether the deceased workman had completed 240 days of continuous service in the twelve months immediately preceding the alleged date of termination, namely 25 June 2003, which constitutes a condition precedent for claiming statutory protection under the Industrial Disputes Act, 1947. It is submitted that the Labour Court has further failed to consider the judgment of the Supreme Court in Mohd. Ali v. State of H.P., (2018) 15 SCC 641, though the same was specifically cited before it, wherein it has been held that completion of 240 days of continuous service is essential for seeking relief under the provisions of the Industrial Disputes Act, 1947.

9. It is further contended that the Labour Court has overlooked material documentary evidence adduced by the Petitioner, which, according to the Petitioner, clearly establishes that the deceased workman had remained absent from duty from 25 June 2003

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onwards. It is submitted that in absence of any act of termination on the part of the employer, the question of illegal termination does not arise. According to the Petitioner, the records maintained by the Corporation in the ordinary course of its business sufficiently establish the absence of the deceased workman, and the Labour Court ought to have given due evidentiary weight to the said records. It is further submitted that in terms of the applicable Circular for the period 2005 to 2006, a Khada Badli employee remaining unauthorisedly absent for a period exceeding 90 days cannot be continued in service.

10. It is contended that in the present case the deceased workman remained continuously absent for a period exceeding 90 days from 25 June 2003 onwards and, therefore, in view of the aforesaid circular and applicable administrative instructions, he lost his lien upon the employment by reason of his own conduct. It is submitted that the said position was duly communicated to the deceased workman by communication dated 14 February 2007, which aspect has not been properly appreciated by the Labour Court. On the aforesaid grounds, it is submitted that the impugned Award is contrary to law and liable to be quashed and set aside.

11. Per contra, learned Advocate appearing for the Respondents has placed reliance upon documentary evidence in the nature of wage slips of the deceased workman for the period from May 1999 to February 2002, which, according to the Respondents, establish continuity of service rendered by the deceased workman. Further reliance has been placed upon the correspondence exchanged between the deceased workman and the First Party Corporation,

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whereby the deceased workman had on several occasions requested that he be permitted to resume duties. Attention has also been invited to the identity card issued in favour of the deceased workman, which reflects his date of appointment as 18 July 1997 and his last working date as 13 June 2003, in support of the contention that the deceased workman was in continuous employment. It is further contended that the name of the deceased workman appeared in the list of employees proposed for absorption as permanent employees, thereby indicating that he had acquired entitlement to permanency.

12. Reliance has also been placed upon the correspondence issued by the father of the deceased workman informing the Corporation regarding the illness suffered by the deceased workman. On the strength of the aforesaid material, it is contended that the termination of the deceased workman was illegal and unlawful, and that he was consequently entitled to reinstatement with full back wages and consequential service benefits. It is further submitted that after the alleged oral termination dated 9 December 2003, the deceased workman continuously approached the First Party Corporation by addressing various letters requesting permission to resume duties. It is submitted that the said correspondence was produced before the Labour Court and was admitted by the witness examined on behalf of the First Party. It is submitted that the correspondence dated 9 December 2003 indicates that the deceased workman had sought permission to resume duties on the ground that he had become medically fit, supported by a medical certificate dated 2 December

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2003. Reliance is also placed on further correspondence dated 11 July 2005 and 15 July 2005, along with subsequent communications addressed to various authorities including the Additional Municipal Commissioner, the Commissioner of the Municipal Corporation, and the Chief Labour Officer, to demonstrate that the deceased workman persistently sought reinstatement in service. It is contended that despite the same, the First Party neither permitted him to resume duties nor replied to the communications addressed by him.

13. It is further submitted that a termination letter thereafter came to be issued on 14 December 2007 alleging unauthorised absence from 25 June 2003. Thereafter, the deceased workman addressed further representations dated 17 January 2008 to various authorities including the Commissioner and other officials of the Municipal Corporation. It is submitted that the deceased workman subsequently instituted Writ Petition No. 6279 of 2009 before the Bombay High Court, wherein directions came to be issued directing the Corporation to consider his case sympathetically for ad hoc appointment subject to availability of vacancies. Pursuant thereto, applications came to be submitted by the deceased workman on 08 December 2009, 4 January 2010, and 19 January 2010, which were rejected by communication dated 08 July 2010 on the ground of non-availability of vacancies.

14. It is further submitted that thereafter the deceased workman instituted Writ Petition No. 6329 of 2011, wherein the High Court held that the said Petition was not maintainable and granted liberty to the deceased workman to raise an industrial dispute

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under the provisions of the Industrial Disputes Act, 1947. Thereafter, the present industrial dispute came to be raised before the Appropriate Government. On the aspect of completion of 240 days of continuous service, it is contended that the evidence available on record clearly establishes that the deceased workman had completed the requisite number of days and was therefore entitled to statutory protection under the Industrial Disputes Act, 1947. It is further contended that the First Party had deliberately given artificial breaks in service to the deceased workman with a view to deprive him of the benefit of permanency. It is submitted that the witness examined on behalf of the First Party has admitted during cross-examination that such artificial breaks were in fact given.

15. It is further contended that the documents produced by the First Party, including the muster rolls, could not be treated as reliable evidence inasmuch as the same were merely xerox copies and had not been proved in accordance with law. According to the Respondents, the identity card and other documentary material on record sufficiently establish that the deceased workman had continuously worked and had completed more than 240 days of service. It is further contended that other similarly situated employees whose names appeared in the same list were granted permanency in service and, therefore, the deceased workman was equally entitled to receive the same benefit. It is thus contended that the services of the deceased workman were illegally terminated by the First Party and that had such termination not occurred, he would have been regularised and made permanent

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along with other similarly placed employees. In the circumstances, it is submitted that notwithstanding the death of the deceased workman, his legal heirs are entitled to all consequential monetary and service benefits including back wages, as has rightly been granted by the Labour Court.

REASONS AND ANALYSIS:

16. Having heard the learned Advocates for the parties and having carefully gone through the pleadings, evidence and the material placed on record, this Court is of the view that the impugned Award does not call for interference in exercise of writ jurisdiction. The scope of interference under Articles 226 and 227 is limited. This Court is not sitting in appeal over the findings recorded by the Labour Court. Unless the findings are perverse, without evidence, or in clear disregard of law, this Court will not substitute its own view merely because another view may also be possible. In the present matter, when the record is examined as a whole, the Award passed by the Labour Court cannot be said to be illegal or without jurisdiction.

17. The Petitioner argued that the wage slips show payment for work done and cannot establish continuous service. This statement is correct in law to a certain extent. Yet the question before the Labour Court was not only whether the deceased workman was a employee. The question was whether he had worked for sufficient period, whether he had been denied continuity by artificial breaks, and whether the termination pleaded by the employer was justified. The wage slips, identity card and other correspondence,

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when read together, gave the Labour Court a basis to conclude that the deceased workman had in fact put in service for a meaningful period. Once such material was available, the Labour Court was justified in drawing a reasonable inference in favour of the workman.

18. This Court finds substance in the contention to the extent that an identity card issued by the employer is a document emanating from the establishment and therefore carries evidentiary value. When an employer records in its own document the date from which a workman was engaged and specifies the last working date, such document cannot be lightly brushed aside. The same does indicate that the deceased workman had been attached with the establishment from the date reflected therein and had remained associated till the last working date. Such recital in official document does probabilise the case that the deceased workman had rendered service over substantial time.

19. However, merely because the identity card contains a date of appointment and last working date, the same does not establish continuous employment for every day during the entire period. The existence of an identity card may show association with the employer and period of engagement, but by itself it may not be treated as conclusive proof that the workman had worked without break on each day throughout the period. Such document is required to be read in conjunction with surrounding circumstances and other evidence available on record. Nevertheless, the identity card certainly constitutes corroborative material which supports the stand of the Respondents that the deceased workman had

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remained in employment over long period and had not worked for stray days.

20. This Court finds that mere inclusion of a person's name in a proposed list for absorption may not create a legal right to claim permanency as matter of entitlement, nevertheless such fact is indeed relevant circumstance which cannot be ignored. The appearance of the deceased workman's name in such list prima facie indicates that his case had been taken into consideration by the employer while examining employees for possible regularisation, and such inclusion lends support to the argument that he was being treated similarly with other workmen whose cases were under consideration for permanency. Had the deceased workman been ineligible or disconnected from regular nature of service, ordinarily there would have been no occasion for his name to be reflected in such list. Therefore, this circumstance materially weakens the Petitioner's stand that the deceased workman being occasional worker.

21. It is further contended on behalf of the Respondents that as many as 15 other employees, who according to them were standing on identical footing with the deceased workman and whose names were also reflected in the same panel or list in which the name of the deceased workman was included, were subsequently granted permanency in service by the employer. On the strength of such circumstance, the Respondents have argued that once the employer itself had considered the deceased workman together with those other employees as belonging to one class for the purpose of consideration of permanency, there

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remained no lawful basis thereafter to deny to the deceased workman the same treatment which came to be extended to the others. It is their contention that when persons similarly circumstanced, similarly appointed, similarly engaged, and similarly It is further contended on behalf of the Respondents that as many as 15 other employees, who according to them were standing on identical footing with the deceased workman and whose names were also reflected in the same panel or list in which the name of the deceased workman was included, were subsequently granted permanency in service by the employer. On the strength of such circumstance, the Respondents have argued that once the employer itself had considered the deceased workman together with those other employees as belonging to one class for the purpose of consideration of permanency, there remained no lawful basis thereafter to deny to the deceased workman the same treatment which came to be extended to the others. It is their contention that when persons similarly circumstanced, similarly appointed, similarly engaged and similarly placed in the same administrative category have been granted benefit of regularisation, exclusion of one amongst them without any intelligible reason amounts to hostile discrimination and arbitrary exercise of power. According to the Respondents, therefore, the deceased workman equally became entitled to receive the same benefit of permanency which was extended to the other employees from the same category.

22. While considering the aforesaid submissions advanced on behalf of the Respondents, particularly the argument that several

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other employees similarly placed had been granted permanency and therefore the deceased workman also ought to have received like treatment, it becomes necessary for this Court to carefully examine the legal principles governing such issue as explained by the Supreme Court in the case of ONGC v. Krishan Gopal (2021) 18 SCC 707. The said decision assumes relevance because it deals directly with the extent of powers of Labour and Industrial Courts while considering claims of regularisation and permanency raised by temporary, daily wage, casual or similar category workmen.In the said judgment, the Supreme Court considered the earlier line of authorities dealing with grant of regularisation to workers who had remained in service for long duration on temporary, casual, daily wage or non permanent basis. The Court noticed that there existed certain observations in earlier decisions which appeared to require harmonious understanding. In particular, reference was made to the judgments in U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh, (2007) 5 SCC 755 and Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 :

(2009) 2 SCC (L&S) 513 was sought to be reconciled in a two-

Judge Bench decision of this Court in Hari Nandan Prasad v. Food Corpn. of India, (2014) 7 SCC 190. Thus, the Supreme Court in ONGC v. Krishan Gopal undertook exercise of reconciling and restating the proper legal standard applicable in such matters.

23. The principle emerging from the aforesaid judgments is that a Labour Court or Industrial Court cannot direct regularisation merely because a worker has rendered service for long years on temporary or daily wage basis. Mere length of service, by itself

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does not create legal entitlement in favour of the worker to demand permanent status. Service for long period may create expectation, but expectation alone cannot mature into enforceable legal right unless foundational requirements prescribed in law are satisfied. The Court is duty bound to first examine whether sanctioned vacant posts exist against which such regularisation can be made; whether the concerned employee possesses qualifications and eligibility required for appointment to such post; and whether the applicable recruitment procedure and service rules governing appointment to such post have been complied with. If these conditions are absent, then regularisation cannot ordinarily be ordered merely because a worker has continued for substantial time.

24. The Supreme Court has explained that if Courts begin directing regularisation only on the ground of long service without examining sanctioned posts and recruitment rules, such course may permit entry into public employment through means not recognised by law. The Court described such consequence as permitting "backdoor entry" into public service. Such approach would be inconsistent with constitutional principles, especially the mandate of equality under Article 14 and fairness in public employment, because regular public appointments are required to be made through transparent and lawful procedure affording equal opportunity to all eligible candidates. Therefore, indiscriminate regularisation merely because of passage of time cannot be sustained in law.

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25. However, the Supreme Court clarified that there exists qualification to the above principle. The Court observed that a different situation may arise where the employer itself has granted regularisation or permanency to certain workers who were similarly placed and similarly engaged. In such circumstances, where some employees of same category, performing same duties, under same mode of engagement, have been regularised by the employer, denial of similar treatment to other identically placed workers may amount to arbitrary and discriminatory conduct. In such case, the Labour Court or Industrial Court would not be creating a new right in favour of the workman; rather, it would be enforcing equality and preventing unfair discrimination amongst similarly situated employees.

26. The rationale behind this distinction is plain. If no one has been regularised and the Court directs regularisation because of long service, the Court may be stepping beyond permissible limits and creating rights. But where the employer itself has chosen to regularise some amongst a class of similarly placed workers, then the inquiry shifts from creation of right to question of equal treatment. Once employer extends permanency to some workers from a particular category, it cannot deny the same benefit to others from the same class without disclosing lawful distinction. In such a situation, the Court merely ensures parity. It does not create a benefit but removes inequality already brought into existence by employer's own conduct.

27. Thus the decision in ONGC v. Krishan Gopal clearly lays down dual proposition. Firstly, regularisation cannot be granted

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because the worker has served for long years. Secondly, where employer has itself regularised other similarly situated employees engaged in similar manner, refusal to extend same treatment to the remaining employees may amount to discriminatory treatment. In such circumstance, Industrial or Labour Court may validly intervene to restore fairness and equal treatment among employees similarly circumstanced.

28. The fact that the deceased workman's name appeared in the same list along with those employees who were later absorbed as permanent employees assumes significance. The inclusion of his name in that common list indicates that his case had been viewed by the employer within the same category of employees who were under consideration for regularisation. Therefore unless the employer demonstrates some disqualification, misconduct, dissimilarity, or legal impediment specifically applicable to the deceased workman, the denial of similar benefit to him raises doubt regarding fairness of such action.

29. On the point of delay while approaching court, it is observed from the material placed on record that the correspondence dated 11 July 2005 and 15 July 2005 clearly indicates that the deceased workman had continuously approached the Petitioner requesting that he be permitted to resume duties. The contents of the said communications reveal that the deceased workman had not treated his employment as abandoned nor had he accepted cessation of service. On the contrary, the repeated requests made by him demonstrate his intention and willingness to continue in employment and to discharge duties under the Petitioner

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establishment. The said correspondence therefore constitutes relevant circumstance showing that the deceased workman asserted continuation of employer employee relationship and sought restoration thereof.

30. Further, the subsequent correspondence dated 19 April 2006 addressed to the Additional Municipal Commissioner, the communication dated 18 April 2006 addressed to the Additional Municipal Commissioner, City, and thereafter the letter dated 11 June 2007 addressed to the Commissioner of the Municipal Corporation and the Chief Labour Officer, further disclose that the deceased workman continuously pursued his grievance before authorities of the Corporation with the same request that he be allowed to report for duty. The representations to higher authorities shows that the deceased workman was pursuing his claim before all administrative forums.

31. What is material is that despite such repeated representations made over years, the Petitioner appears neither to have allowed the deceased workman to resume duties nor to have issued any response to the various communications sent by him. The absence of any satisfactory reply from the employer to repeated requests of a workman seeking reinstatement creates doubt regarding the fairness of the employer's conduct. If indeed the Petitioner's case was that the deceased workman had abandoned service or had lawfully ceased to remain in employment, it would have been expected that the employer would communicate such position.

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32. It is thereafter seen that on 14 December 2007, the Petitioner issued termination letter to the deceased workman alleging therein that he had remained absent from duty from 25 June 2003 without intimation. This communication assumes importance because it demonstrates that the Petitioner itself subsequently proceeded to issue communication treating the services of the deceased workman as terminated on account of alleged absence. The issuance of such termination letter weakens the stand that no termination ever took place. If the employer had already considered the deceased workman as having ceased to be in service long prior thereto, the necessity of issuing termination communication in December 2007 itself requires explanation. The issuance of such letter indicates that the employer itself found it necessary to communicate cessation of service, thereby lending support to the case of the Respondents that the relationship of employment had remained in dispute and had not conclusively ended merely by passage of time.

33. Even thereafter, the conduct of the deceased workman did not reflect acquiescence. The record shows that the deceased workman again addressed communication dated 17 January 2008 to several authorities including the Commissioner of the Municipal Corporation, Dr. Smt. Shubha Raul, the Mayor, Deputy Commissioner and Chief Labour Officer of the Municipal Corporation. This further demonstrates that even after receipt of termination communication, the deceased workman did not accept the same quietly but immediately challenged the action and continued to seek intervention from competent authorities.

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34. It is also brought on record that on 26 March 2008 the Mayor addressed communication to Mr. Phanase requesting that the deceased workman be permitted to resume duties. The fact that even the office of the Mayor appears to have intervened and recommended that the deceased workman be allowed to resume duties indicates that the grievance raised by the deceased workman was treated with seriousness at administrative level. Though such recommendation may not create legal right, it does indicate that the claim of the deceased workman had substance to warrant consideration.

35. Thereafter, being unable to secure relief, the deceased workman approached this Court by filing Writ Petition No. 6279 of 2009. In the said proceedings, this Court directed that the deceased workman may make an application and that the Petitioner may consider his case sympathetically for ad hoc appointment if vacancy was available. Though the said order did not adjudicate upon the rights of the deceased workman, it demonstrates that the deceased workman had remained vigilant and had taken recourse to proceedings for redressal of his grievance. It further shows that the dispute regarding his employment status was being pursued and had not lapsed into abandonment.

36. Pursuant to the aforesaid liberty, the deceased workman made applications dated 8 December 2009, 4 January 2010 and 19 January 2010. This reflects his diligence and willingness to comply with directions of the Court in order to secure re-employment. In response thereto, the Petitioner issued communication dated 8 July

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2010 stating that no vacancy was available and, therefore, the deceased workman could not be appointed. The said reply is significant because instead of rejecting the deceased workman on ground that he had no claim or no prior relationship with the establishment, the Petitioner chose to reject him only on ground of non-availability of vacancy.

37. Subsequently, the deceased workman again approached this Court by filing Writ Petition No. 6329 of 2011. In the said proceedings, this Court held that the writ petition was not maintainable and observed that the deceased workman may avail remedy of raising industrial dispute under the Industrial Disputes Act, 1947. Thereafter, acting upon such liberty, the deceased workman raised the present industrial dispute before the Appropriate Government. The sequence of these proceedings shows chain of remedies by the deceased workman. At no point can it be said that he slept over his rights or abandoned his grievance. Rather, the record shows assertion of claim before authorities, municipal officers, constitutional court and ultimately industrial forum.

38. The Petitioner has sought to contend, relying upon the decisions in Nedungadi Bank, Prabhakar and Krishi Utpadan Mandi Samiti, that stale disputes ought not to be referred and that back wages ought not be granted where there is delay in raising dispute. There can be no quarrel with the legal principles enunciated in those judgments. The proposition that industrial dispute must be live and subsisting at the time of reference and that stale and dead disputes ordinarily ought not to be entertained

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is well settled. Equally, the proposition that unexplained delay may disentitle grant of full back wages is also accepted principle of law.

39. Accordingly, while delay is a relevant factor and cannot be ignored, delay by itself does not extinguish industrial dispute. The Court is required to examine whether the dispute had become so stale, dead, and buried by passage of time that no adjudication could be undertaken. In the peculiar facts of the present matter, where repeated representations and judicial proceedings intervened throughout the period, such conclusion cannot be drawn. The Labour Court, therefore, cannot be faulted for holding that notwithstanding lapse of time, the dispute still required adjudication on merits.

40. Thus, in the opinion of this Court, the reliance placed by the Petitioner upon the aforesaid judgments does not carry the matter any further. The principles laid down therein are well settled, but their application depend always upon factual foundation of each case. Therefore, the Labour Court was justified in holding that the industrial dispute remained sufficiently live for adjudication.

41. In view of the discussion made hereinabove, the following order is passed:

(i) The present Petition, being devoid of merits, stands dismissed;

(ii) The Award dated 11 April 2019 passed by the learned 2nd Labour Court, Mumbai in Reference (IDA) No. 181 of 2013 is hereby upheld;

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(iii) The Petitioner shall comply with the impugned Award, if not already complied with, within a period of eight weeks from the date of this order;

(v) In the event the monetary benefits arising under the impugned Award have not yet been released, the same shall be calculated and disbursed to the legal heirs of the deceased workman within the aforesaid period;

(vi) Rule is discharged in the aforesaid terms;

(vii) In the facts and circumstances of the case, there shall be no order as to costs.

42. Pending interlocutory application(s), if any, stands disposed of.

43. At this stage, learned Advocate for the petitioner seeks stay of this judgment and order for a period of four weeks from today. However, for the reasons recorded above, the request for stay is rejected.

(AMIT BORKAR, J.)