Rajeshbhai Arvindbhai Borecha vs Keshor Municipality, Through Its ...
2021 Latest Caselaw 17509 Guj

       C/SCA/533/2019                                ORDER DATED: 22/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 533 of 2019

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                 RAJESHBHAI ARVINDBHAI BORECHA
                              Versus
          KESHOR MUNICIPALITY, THROUGH ITS CHIEF OFFICER
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Appearance:
MS NEHA SHUKLA FOR MR KIRTIDEV R DAVE(3267) for the Petitioner(s)
No. 1
MR UM KHARADI FOR MR HRIDAY BUCH(2372) for the Respondent(s) No.
1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 22/11/2021
                              ORAL ORDER

1. Learned advocate Ms.Neha Shukla has submitted that she is unable to dispute the fact that the industrial dispute has been raised after a period of 11 years by the petitioner-workman.

2. Learned advocate Mr.U.M.Kharadi has submitted that the issue is squarely covered by the judgment of the Supreme Court in the case of Prabhakar vs. Joint Director Sericulture Department, AIR 2016 SC 2984.

3. The petitioner-workman was serving as a Safai Kamdar with the respondent-Municipality and it is his case that he was illegally terminated in July, 2003. Thereafter, he raised industrial dispute in the year 2015, which culminated into Reference (T) No.17 of 2015. By the impugned award dated 29.10.2018 passed by the Labour Court, Junagadh, the said reference is rejected on the ground of delay, as the dispute has been raised after a period of 11 years. The Labour Court has placed reliance on the various judgments of the Supreme Court.

4. At this stage, it would be apposite to refer to the decision of the

C/SCA/533/2019 ORDER DATED: 22/11/2021

Supreme Court on the aforesaid decision in the case of Prabhakar (supra), which reads as under:-

"36. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of the petitioner on 1-4-1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for a number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after a lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workman did not raise any protest and did not demand his reinstatement, the employer presumed that the workman has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workman, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a "dispute" what had otherwise become a buried issue.

37. Let us examine the matter from another aspect viz. laches and delays and acquiescence.

38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".

C/SCA/533/2019 ORDER DATED: 22/11/2021

39. This principle is applied in those cases where discretionary orders of the court are claimed, such as specific performance, permanent or temporary injunction, appointment of Receiver, etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of the Constitution of India. In such cases, courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to court within the period prescribed by the Limitation Act.

40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.

41 XXXXX 42 XXXXX 42.1XXXXX 42.2. XXXXX 42.3. XXXX

44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID 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 ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless 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."

Thus, the Supreme Court has held that though there is no limitation prescribed under the Limitation Act, 1963 for making a reference under

C/SCA/533/2019 ORDER DATED: 22/11/2021

Section 10(1) of the ID Act yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. It is further held that the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay.

5. In the present case, as noted hereinabove, the petitioner has raised industrial dispute after a huge delay of 11 years without furnishing any justifiable reason for such delay. Hence, this Court does not find any illegality or perversity in the order dated 29.10.2018 passed by the appropriate authority.

6. The petition is summarily rejected. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK