Parshottam Shamjibhai vs The Under Secretary To The ...
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      C/SCA/12738/2021                                ORDER DATED: 27/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12738 of 2021

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                 PARSHOTTAM SHAMJIBHAI
                         Versus
THE UNDER SECRETARY TO THE GOVERNMENT OF INDIAN MINISTRY
               OF LABOUR AND EMPLOYMENT
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Appearance:
MR K I KAZI(5030) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 27/10/2021
                                ORAL ORDER

1. The present petition has been filed challenging the action of the respondent no.1 in not referring the dispute for adjudication on the ground of delay.

2. Learned advocate Mr.K.I.Kazi appearing for the petitioner has submitted that there is no power available with the appropriate Government for rejecting the industrial dispute on the ground that it cannot adjudicate the delay. It is submitted by him that the petitioner was an employee of the respondent and he was illegally terminated in the year 1994. He has submitted that thus, the appropriate Government, while exercising the powers under Section 10 of the Industrial Disputes Act, 1947 cannot refuse to refer the industrial dispute on the ground of delay. In support of his submissions, he has placed reliance on the order dated 15.06.2010 passed in Special Civil Application No.9177 of 2005.

3. The petitioner in the writ petition has specifically stated that he was serving as an Engineer since 13.05.1979 and had worked till 04.02.1994. After a passage of almost 23 years, he addressed a notice dated 11.11.2016 through an advocate to the respondent with regard to his

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illegal termination. The Senior Divisional Mechanical Engineer, Western Railway, Rajkot had addressed a letter dated 29.08.2018 to the Assistant Labour Commissioner (Central) Rajkot, wherein it was stated that there is no record of the petitioner as the case is represented after 23 years. The Assistant Labour Commissioner (Central) & Conciliation Officer vide communication dated 25.01.2019 intimated about the conciliation report to the Secretary, Government of India, Ministry of Labour and Employment.

4. Thereafter, by the communication dated 05.03.2019 issued by the appropriate Government the petitioner is intimated with regard to failure of the conciliation proceedings vide report dated 25.01.2019. It is stated that the Ministry does not consider his dispute to be referred for adjudication for the following reasons:-

"The disputant workman has raised the dispute after lapse of 23 years without furnishing any justifiable reason for such delay. Also, in this connection, the judgment of Hon'ble Supreme Court in case of Nedungadi Bank Limited Vs K.P. Madhavam Kutti (AIR 2000 SC (839) has ruled that- A dispute should be raised within a reasonable time."

Thus, the dispute raised by the petitioner is not referred for adjudication in view of the fact that the petitioner has raised the dispute after lapse of 23 years without furnishing any justifiable reason for such delay and also considering the judgment of Supreme Court in case of Nedungadi Bank Limited Vs K.P. Madhavam Kutti, AIR 2000 SC 839.

5. In the recent decision of the Supreme Court on the aforesaid decision in the case of Prabhakar vs. Joint Director Sericulture Department, AIR 2016 SC 2984 has considered the aforesaid judgment in the case of K.P.Madhavam Kutti (supra) and various other judgments and has held thus:-

"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

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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".

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

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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 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. 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.

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7. In the present case as noted hereinabove, the petitioner has raised industrial dispute after a huge delay of 23 years without furnishing any justifiable reason for such delay. Hence, this Court does not find any illegality or perversity in the order dated 05.03.2019 passed by the appropriate authority.

8. The petition is summarily rejected.

(A. S. SUPEHIA, J) ABHISHEK