Dilipsinh Merubha Rathod vs Deputy Executive Engineer
2021 Latest Caselaw 10706 Guj

     C/SCA/7087/2018                              ORDER DATED: 05/08/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 7087 of 2018
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              DILIPSINH MERUBHA RATHOD
                           Versus
             DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR C S PANCHAL(6769) for the Petitioner(s) No. 1
MR DIPAK H SINDHI(5710) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 05/08/2021
                      ORAL ORDER

1) The present writ petition has been filed challenging the award dated 30.12.2017 passed by the Presiding Officer, Labour Court, Surendranagar, in Reference (LCD) Case No. 3 of 2011 and further it is prayed to pay the difference of amount of actual payment/salary towards suspension allowance from 09.06.2000 to 22.06.2000 along with four increments with interest at 9% p.a.

2) Learned advocate Mr.Panchal has submitted that the impugned award is required to be quashed and set aside since the reference of the petitioner could not have been rejected on the ground of delay as he was acquitted from the criminal charge by the judgment and order dated 09.09.2010 passed in Criminal Case No. 465 of 2000. It is submitted that after the acquittal a industrial dispute was raised, which culminated into Reference (LCD) No. 3 of 2011, however, the same is rejected by the Labour Court, Surendranagar on the ground of delay. Learned advocate Mr. Panchal has further submitted that against the order of termination, the petitioner has filed five appeals and his first appeal was not decided but the second appeal was rejected on 23.10.2002 on the ground that the

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same was time barred.

3) It is submitted that the workman had filed the second appeal on 02.11.2002 addressing the same to S.E. Surendranagar the third appeal on 09.12.2002, the fourth appeal on 18.12.2002 and fifth appeal filed on 03.02.2003, accordingly five appeals were filed by the petitioner from 23.10.2002 to 03.02.2003, however the same still remain to be undecided, and hence, the Labour Court fallen in error in rejecting the appeal on the ground of delay. He has submitted that the entire departmental proceedings were also held illegally against the present petitioner and the acquittal of the present petitioner would indicate that the departmental proceedings were held without any law. Thus, he has submitted that the impugned award may be set aside.

4) In response to the aforesaid submissions advanced by the learned advocate for the petitioner, learned advocate Mr. Dave has submitted that the petitioner was imposed the penalty of stoppage of four increments by the order dated 27.09.2002, which was served upon him on 08.10.2002. The petitioner preferred an appeal on 02.11.2002 and the Appellate Authority decided the petitioner's appeal on the ground of the Limitation Act, 2005, since it was not filed within a period of 15 days as per the Rules. Accordingly, the petitioner was informed vide letter dated 03.11.2002. It is submitted that the petitioner again preferred an appeal on 24.01.2003, addressed to the Secretary GEB, Vadodara and the same was also rejected and the petitioner was informed vide letter No. 994 dated 04.02.2003. Moreover, the petitioner was informed that there is no provisions of the second appeal available in the case of Class-III and Class-IV employees under the Rules.

      C/SCA/7087/2018                               ORDER DATED: 05/08/2021



5)    It is submitted by learned advocate Mr.Dave that thereafter the

petitioner retired from service on 30.04.2010 after undergoing the penalty of stoppage of four increments. After his retirement, he has raised the dispute, and accordingly, the reference has been filed after delay of 8 years. Thus, he has submitted that the Labour Court, after considering all these aspects, has rejected the reference on the ground of delay hence since the dispute was referred after undergoing the punishment order of four increments.

6) Learned advocate Mr. Dave has submitted that though the award of the Labour Court is not happily worded and it has proceeded on the basis that the demand is made after three years and hence, the reference is barred by limitation, however, the fact remains that the petitioner was unable to explain the delay before the Labour Court and the same may not be entertained.

7) In support of his submissions he has placed reliance on the judgment in the case of Prabhakar v. Joint Director Sericutlure Department and another reported in 2015(15) SCC 1.

8) I have heard the learned advocates appearing for the respective parties. The facts which are not in dispute are that the petitioner was imposed the penalty of stoppage of four increments by the order dated 27.09.2002 after holding regular departmental inquiry. It appears that thereafter, the petitioner challenged the aforesaid punishment order by way of filing five appeals. It is the case of the petitioner that his first appeal, which was filed on 23.10.2002 was not decided, however the subsequent appeal, which was filed by him on 02.11.2002 was not decided on merits and the same was rejected on the ground of limitation and thereafter, he filed three more appeals.

      C/SCA/7087/2018                                   ORDER DATED: 05/08/2021



9)    Be that as it may, the fact remains that the petitioner has undergone

the penalty of stoppage of four increments and thereafter he retired from service on 30.04.2010. It is not in dispute that the aforesaid penalty of stoppage of four increments was imposed after holding departmental inquiry against the petitioner. It is the case of the petitioner that after he was acquitted in the year 2010 from the criminal offence, he raised the industrial dispute and accordingly a reference was made by the appropriate government. Thus, the facts would suggest that after the petitioner has undergone the punishment of stoppage of four increments and his rejection of appeals in the year 2002, he raised an industrial dispute after period of 8 years. At this stage it would be apposite to refer to the observations made by the Apex Court in the case of Prabhakar (supra).

"41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent.

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

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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. 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

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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. 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."

10) Thus, the Apex Court has held that if 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'

10) In the present case, the petitioner, having undergone the penalty of stoppage of four increments and also on his rejection of his appeal, slept

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over his rights but did not raise industrial dispute within a reasonable time, however, after his retirement, he raised dispute when he was acquitted in the criminal proceedings.

11) In the considered opinion of this Court, the acquittal of criminal proceeding would not have any bearing on the findings of the disciplinary proceedings and on the punishment order since the same was passed after holding regular department proceedings in accordance with the rules. The acquittal in the criminal proceedings cannot give a fresh cause of action to the petitioner for raising industrial dispute since in the year 2002, he was imposed such penalty and accordingly he filed an appeal against such penalty and which was rejected as time barred on 23.10.2002. He did not do anything to agitate or raise any objection or challenge the Appellate Authority or the penalty order till his retirement. Thus, having accepted the punishment of stoppage of four increments, it was not open for the petitioner to raise industrial dispute, after such belated time and that too after his retirement.

12) Under this circumstance, no illegality or infirmity can be found in the judgment and award of the Labour Court except with regard to the observations made to the effect that the reference was beyond the limitation of three years.

13) Such erroneous observations made by the Labour Court with regard to the filing of reference beyond the period of limitation does not dilute the delay which has occurred in raising the dispute. The award of the Labour Court may not be happily worded and there may be a mistake as noted hereinabove, but the same will not rescue the petitioner since as noted hereinabove, the entire dispute was raised belatedly and if the same is allowed, it would amount to be unsettling all things as the petitioner

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has already retired and has undergone the penalty and appeal against the order is also rejected.

14) In this view of the matters, the present writ petition fails. Notice discharged.

(A. S. SUPEHIA, J) VISHAL MISHRA