Gujarat High Court
Gamnabhai Amthabhai Begadiya vs The Administrative / Deputy ... on 4 March, 2021
Bench: N.V.Anjaria, A.C. Rao
C/LPA/1789/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1789 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 9793 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1789 of 2019
With
R/LETTERS PATENT APPEAL NO. 1790 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9794 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1790 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9794 of 2019
With
R/LETTERS PATENT APPEAL NO. 1791 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9795 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1791 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9795 of 2019
With
R/LETTERS PATENT APPEAL NO. 1792 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9796 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1792 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9796 of 2019
With
R/LETTERS PATENT APPEAL NO. 1793 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9797 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1793 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9797 of 2019
Page 1 of 12
Downloaded on : Sat Sep 04 10:51:05 IST 2021
C/LPA/1789/2019 ORDER
With
R/LETTERS PATENT APPEAL NO. 1794 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9799 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1794 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9799 of 2019
With
R/LETTERS PATENT APPEAL NO. 1795 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9800 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1795 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9800 of 2019
With
R/LETTERS PATENT APPEAL NO. 1796 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9801 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1796 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9801 of 2019
With
R/LETTERS PATENT APPEAL NO. 1797 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9802 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1797 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9802 of 2019
==========================================================
GAMNABHAI AMTHABHAI BEGADIYA
Versus
THE ADMINISTRATIVE / DEPUTY COLLECTOR
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR KEYUR A VYAS(3247) for the Appellant(s) No. 1
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No. 1
Page 2 of 12
Downloaded on : Sat Sep 04 10:51:05 IST 2021
C/LPA/1789/2019 ORDER
==========================================================
CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 04/03/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Eventhough the respective judgments and orders in Special
Civil Applications, impugned in all these nine Letters Patent
Appeals were passed separately by learned Single Judge, these
Letters Patent Appeals could be treated together for disposal by
this common order as the facts are similar and the issues
involved identical.
1.1 The petitions came to be dismissed by learned Single Judge
by individual order dated 1.7.2019. They were filed by
petitioners workmen concerned seeking to challenge the
judgment and award of the Labour Court, Palanpur in respective
Reference cases which all were rejected by the Labour Court.
2. The rejection of the References was based on two grounds
namely belated invocation of jurisdiction of the Labour Court
and noncompletion of continuous service of 240 days by the
petitionerworkman. Consequently found not entitled to get the
relief prayed for in the References.
3. All the appellants petitioners workmen worked as daily
wagers under the respondent Trust. Noticing the facts from the
first captioned Letters Patent Appeal No.1789 of 2019 referable
to Special Civil Application No.9793 of 2019, the petitioner
stated that he worked under respondentTrust since 1988 till
1.10.1998 when his services were orally terminated. He filed his
Reference No.6 of 2012 before the Labour Court, Palanpur and
C/LPA/1789/2019 ORDER
prayed for reinstatement in service. In the statement of claim,
the workman contended that his oral termination was illegal and
that the same was in breach of provisions of Sections 25A, 25G
and 25H of the Industrial Disputes Act, 1947. Considered from
the date of dismissal which was 1.10.1998, the Reference in this
case was filed after more than thirteen years. The Labour Court
dismissed the Reference by judgment and award dated
30.3.2018.
3.1 In the reply to the statement of claim, respondentTrust
inter alia contended that the petitioner was not registered as
labourer with the respondentTrust. No presence was
maintained and any salary voucher was not issued. According to
the stand, the engagement of the petitioner was through
contractor and for all purposes, petitioner was employee of the
contractor with responsibility of the contractor to make payment
of salary etc. It was denied that the petitioner had rendered
continuous service under the respondentTrust as alleged. When
the rejection of Reference was challenged before this Court by
filing Special Civil Application, respondentTrust filed its affidavit
to reiterate the same stand which was taken before the Labour
Court.
3.2 In all the cases, basic case in the Reference, stand and
defence of the respondent and the submissions before the
Labour Court and before this Court in the Special Civil
Application were on similar lines. The basic details of all the
appellantspetitioners are tabularised hereunder.
Sr.No. Letters Patent Year of Reference Delay in
Appeal in Special joining and number and invoking
C/LPA/1789/2019 ORDER
Civil Application date of oral date of labour
with name of termination rejection by jurisdiction
appellant the Labour (in years)
Court
in 1.10.1998 30.3.2018
SCA
No.9793/2019
Gamnabhai
Amthabhai
Begadiya
in 1.10.1998 31.3.2018
SCA
No.9794/2019
Rajabhai Minabhai
Begadiya
in 1.10.1998 31.3.2018
SCA
No.9795/2019
Bachubhai
Babubhai Begadiya
in 1.10.1998 31.3.2018
SCA
No.9796/2019
Dharamabhai
Kasanabhai
Begadiya
in 1.10.1998 31.3.2018
SCA
No.9797/2019
Sayababhai
Menabhai
Begadiya
in 1.10.1998 30.3.2018
SCA
No.9799/2019
Gujrabhai Atabhai
Begadiya
C/LPA/1789/2019 ORDER
in 1.10.1998 30.3.2018
SCA
No.9800/2019
Bhojabhai
Nanabhai Begadiya
in 1.10.1998 30.3.2018
SCA
No.9801/2019
Bachubhai
Dhulabhai
Begadiya
in 1.10.1998 30.3.2018
SCA
No.9802/2019
Thavrabhai
Savjibhai Begadiya
4. Heard learned advocate Mr.Keyur Vyas for the appellants
and learned advocate Ms.Archana R. Acharya for the
respondentDevsthan Trust in all the Appeals.
5. As could be seen from the basic facts stated above, the
workmen approached the Labour Court after gross delay ranging
from 13 to 14 years. Learned Single Judge considered the aspect
of delay as well as the factual merits and held that the
References was not liable to be entertained.
5.1 Following findings were recorded by learned Single Judge
identically in each cases.
"6. Considering the submissions made by the
learned advocate as well as perusing the
impugned judgment and award, it emerges
that the Labour Court after considering the
documentary and oral evidence produced on
record, has rejected the reference only on the
C/LPA/1789/2019 ORDER
ground of delay and laches as the petitioner
preferred the reference in the year 2012 for
his alleged termination in the year 1998. The
Labour Court after recording the contents of
the deposition of the petitioner at Exh.14 as
well as the evidence taken in case of Haribhai
Dhulabhai Senma in Reference (LCP) No.
79/2011 which was relied upon by the
petitioner, came to the conclusion that except
such evidence, the petitioner did not produce
any evidence with regard to his continuous
work for 240 days during the tenure of his
service. Thereafter, the Labour Court
considered the pursis filed by respondent
trust at Exh.18 adopting the evidence of
witness Hareshbhai Nathalal Modi in
Reference (LCP) No. 40/2011 to contend that
no oral or written order was passed for
appointment of the petitioner and there is no
explanation for delay of more than 13 years
in preferring the reference. It was also
contended by the respondent trust that the
petitioner never made an application for
taking him back in service during the period
of 13 years from the date of his alleged
termination of employment."
5.2 It is trite principle enunciated that eventhough under the
Industrial Disputes Act, 1947 limitation had not been
prescribed, it could never mean that workman approach the
Labour Courts/Industrial Tribunals after passage of any amount
of time. While the stale litigation is not to be encouraged,
similarly dead disputes under the industrial law could also not
be entertained in absence of satisfactory and an acceptable
explanation. In all these cases, none of the appellants
petitioners even whispered in their statement of claim to explain
the delay. Neither anything was mentioned in the writ petition
filed to challenge the rejection of Reference. In other words, there
C/LPA/1789/2019 ORDER
was no explanation given in invoking the jurisdiction of the
Labour Court muchless any satisfactory explanation.
5.3 In Prabhakar v. Joint Director, Sericulture Department
[(2015)15 SCC 1] which decision was referred to and relied on
by learned Single Judge, the Supreme Court analyzed the
provision of Section 10 of the Industrial Disputes Act and
observed that there should exist a live industrial dispute and
that the claim which has become stale, should not be
entertained under Section 10 of the Act. It was observed that
when the termination was challenged belatedly and the dispute
was raised after gross delay or latches which remained
unexplained, it would be presumed that the workman has
waived his right or acquiesced into the act of termination. It was
observed by Apex Court that such dispute cannot be treated as
existing dispute and the appropriate Government could refuse to
make Reference.
5.3.1 The Supreme Court in Prabhakar (supra) concluded to
hold as under,
"To summarise, although there is no
limitation prescribed under the Act for making
a reference under Section 10(1) of the Act, yet
it is for the 'appropriate Government' to
consider whether it is expedient or not to
make the reference. The words 'at any time'
used in Section 10(1) do not admit of any
limitation in making an order of reference and
laws of limitation are not applicable to
proceedings under the Act. However, the
policy of industrial adjudication is that very
stale claims should not be generally
encouraged or allowed inasmuch as unless
C/LPA/1789/2019 ORDER
there is satisfactory explanation for delay as,
apart from the obvious risk to industrial
peace from the entertainment of claims after
long lapse of time, it is necessary also to take
into account the unsettling effect which it is
likely to have on the employers' financial
arrangement and to avoid dislocation of an
industry." (Para 44)
5.3.2 It was held by the Apex Court that the High Court has
correctly decided the issue holding that the reference at belated
stage of fifteen years from the date of termination without any
justifiable reason for delay was nonexisting dispute which could
not have been subjected to adjudication by Labour Court
machinery.
5.4 As recorded above, either in the statement of claim or in
the petition before this Court, not a whisper was made by any of
the appellants petitioners to explain the belated filing of the
reference. The delay itself was fatal for the workman concerned
to get the relief prayed for. The ground of delay was rightly dealt
with by learned Single Judge who held in the facts of the case in
each petition that no industrial dispute could be said to be
existing within the meaning of Section 2(k) of the Act as the
claim has become stale for which the Reference was not liable to
be entertained.
5.5 About delay in filing References, learned advocate for
the respondent invited attention of the court to Section 2A of the
Industrial Disputes Act, 1947 which was brought in the statute
book by Act No.24 of 2010 with effect from 15th September,
2010. It provides about making of application before Labour
C/LPA/1789/2019 ORDER
Court or Tribunal for adjudication of disputes of dismissal,
discharge, retrenchment etc. treated as industrial disputes and
provides in its subsection (3) that application referred to in sub
section (2) shall be made to the Labour Court etc. before expiry
of three years from the date of discharge, dismissal or otherwise
termination of service. It was submitted that when the Reference
was filed by the petitionerworkman concerned, the provision
was in force, though the date of termination was prior. It could
be only observed in respect of this submission of learned
advocate for the respondent that legislature has discouraged the
old industrial disputes in relation to dismissal, discharge etc.
and has now provided timeline for approaching the industrial
forum.
5.6 Learned Single Judge noticed the aspect from the judgment
and award of the Labour Court that the witness of the first
partyrespondent Trust one Hareshbhai Nathalal gave his
evidence in Reference (LCB) No.40 of 2011 and he was cross
examined in the said Reference proceedings. The said evidence
was applicable in each case. He stated that the respondentTrust
had never employed the petitioner and even after being out of
service for long time of 1012 years, no application for re
engagement in service was given by the workman concerned in
the interregnum. The workmen failed to produce any evidence
such as payslip, presence register or any other documents in
support of their case that they had completed 240 days of service
in 12 months under the respondentDevsthan Trust. Beyond the
averments in the statement of claim, the petitionersworkmen
did not have any material to substantiate their case. The Labour
C/LPA/1789/2019 ORDER
Court also found that there was no breach of Section 25G or
25H of the Act. The findings of the Labour Court were after
correctly appreciating the evidence and the material before it,
were duly confirmed by learned Single Judge.
5.7 It appeared that the workmen had made an application for
production of the documents which was not pursued by the
workman concerned. They did not bother to make any request to
the Labour Court to decide such application till the award was
passed. The stand of the respondentTrust was consistently that
it was the contractor who had employed the appellants
petitioners to do the work at the Devsthan Trust. The contractor
was not made party in the Reference proceedings.
5.8 On merits, thus the contention about the breach of
Sections 25F, 25G and 25H of the Industrial Disputes Act fell
flat as none of the petitionersworkmen could establish before
the Labour Court that they had completed 240 days of
continuous service in the preceding year which was the pre
requisite in law to be entitled to get the relief. Learned Single
Judge rightly recorded that the petitioners have claimed to have
worked for about 1011 years but did not produce a semblance
of material to substantiate their claim.
5.9 In all Reference cases, the decision of which was
challenged before the learned Single Judge in the respective writ
petitions, there was a dearth of evidence in identical way on part
of the workman concerned. Each of the workmanpetitioner
appellant miserably failed to establish that they had worked 240
days to render such continuous service. They also consequently
C/LPA/1789/2019 ORDER
could not prove breach of any of the mandatory provisions of the
Industrial Disputes Act.
6. On both the counts, that is the delay in approaching in
Labour Court and on factual merits, any of the appellant
petitioner workman had no case. The findings recorded by the
learned Single Judge were imminently just, proper and legal to
uphold the judgment and award of the Labour Court in rejecting
the reference in each cases.
6.1 For the discussion supplied and the reasons recorded
hereinabove, we are in complete agreement with the decision
rendered by the learned Single Judge. No ground exists or could
be demonstrated which may persuade us to interfere with the
judgments and orders of learned Single Judge in any of the cases
in exercise of the Letters Patent jurisdiction.
7. All the Letters Patent Appeals stand meritless. They are
dismissed. Notice in each is discharged.
(N.V.ANJARIA, J)
(A. C. RAO, J)
Manshi
