Brijesh Bhurabhai Solanki vs Gujarat Ayurvedic University
2021 Latest Caselaw 15292 Guj

       C/SCA/9810/2019                              ORDER DATED: 29/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9810 of 2019

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                          BRIJESH BHURABHAI SOLANKI
                                    Versus
                         GUJARAT AYURVEDIC UNIVERSITY
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 29/09/2021
                                 ORAL ORDER

1. The present writ petition has been filed seeking quashing and setting aside the award dated 14.03.2019 passed by Presiding officer, Labour Court, Court No.2, Jamnagar in Reference (T) No.18 of 2011.

2. Learned advocate Mr.U.T.Mishra appearing for the petitioner has submitted that the impugned award is required to be quashed and set aside since there is a delay in raising the industrial dispute and the Labour Court has fallen in error in not appreciating the fact that the termination of the workman was in violation of the provisions of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 (for short "the ID Act"). It is submitted that since there is an absolute violation of such provisions, the Labour Court could not have rejected the reference on the ground of delay. While placing reliance on the written statement filed by the workman, he has submitted that the same would reveal that the respondent-University had outsourced the work to other agency and hence, instead of employed the present petitioner, the another workman was employed and since there is violation of the provisions of Section 25G of the ID Act, the question of delay would not arise. In support of his

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submissions, he has placed reliance on the judgment of the Supreme Court in the case of Ajaib Singh vs. Sirhind Cooperative Marketing-Cum- Processing Service Society Limited and Another, (1999) 6 SCC 82, the decision of the Coordinate Bench dated 24.10.2019 passed in Special Civil Application No.20706 of 2018 and allied matters and the decision of the Division Bench dated 13.03.2019 passed in Letters Patent Appeal No.1554 of 2018. Thus, he has submitted that there is absolute violation of the aforesaid provisions and the reference cannot be rejected on the ground of delay.

3. In response to the aforesaid submissions, learned advocate Mr.D.G.Shukla appearing for the respondent-University has submitted that it is not in dispute that the petitioner was engaged on part time basis initially and thereafter on daily wage basis for about four months when the casual work was available and since the work was not available the contract with the petitioner was not extended after 01.05.2002. He has submitted that the petitioner has falsely raised industrial dispute in 2011 stating that he has been orally terminated from the services with effect from 01.01.2004 and the same industrial dispute came to be referred and accordingly, the petitioner has falsely submitted in his written statement of claim dated 08.08.2011 that he has been orally terminated from service with effect from 01.01.2004. It is submitted that the petitioner-workman in his cross-examination admitted that he was initially given appointment for three months only and there is no evidence produced by him that he had worked from 2004. He has submitted that the respondent-University had also submitted the Attendance Register for the years 1999 to 2002 from which, it is evident that the petitioner had never worked for 240 days in a year.

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4. It is submitted by learned advocate Mr.Shukla, while placing reliance on the judgment of the Supreme Court in the case of Prabhakar vs. Joint Director Sericulture Department, AIR 2016 SC 2984, that the reference itself is not maintainable after so many years. He has also placed reliance on the judgment of the Supreme Court in the case of State of Uttarakhand vs. Sureshwati, AIR 2021 SC 923 for proposition of law that it was for the workman to prove that he had worked for 240 days.

5. I have heard the learned advocates appearing for the respective parties and the relevant documents, as pointed out by them, are also perused.

6. The statement of claim of the workman reveals that he has specifically stated that he was orally terminated on 01.01.2004 and on 19.01.2011, a notice by Registered Post A.D. raising the demand given by him. It is also stated by him that the respondent-University has engaged some workers by outsourcing after he has been retrenched from service and they are still working. The industrial dispute was referred by way of the reference. Thus, a bare perusal of the statement of claim assuming the same is correct and undisputed, it reveals that was terminated in 2004 and after a period of 7 years, he raised the industrial dispute in 2011 by issuing the notice.

7. This Court has specifically asked the learned advocate appearing for the petitioner with regard to the existence of any material, which would indicate that the petitioner had kept the dispute alive or whether he had raised any demand prior 2011 asking for reinstatement or engagement in his service. However, except the written statement and the cross-examination of the officer vide Exh.39 nothing is produced to show

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that the petitioner-workman had kept the dispute alive. The Court has also perused Exh.36, wherein the officer of the respondent-University is cross- examined. In his cross-examination, it is specifically elicited that he is not aware that after 2004 any work is taken through outsourcing, and at the time of termination of the workman was on 01.01.2004, whether any notice or notice pay was issued as no such record is available. It is further stated by him that after 2004, there is no documentary evidence indicating that the petitioner-workman was asked by the respondent-University for engaging him.

8. Thus, from the written statement as well as from the cross- examination of the officer, there is no material remotely suggesting that the petitioner-workman had kept his dispute alive by approaching the respondent authority. The period from 2004 to 2011 is blissfully silent and there is no material produced before the Labour Court or before this Court indicating that the dispute is kept alive. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Prabhakar (supra), the Supreme Court while analyzing the aspect of delay in reference and its impact on industrial dispute, has held thus:-

"28.The aforesaid case law depicts the following:

28.1.The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. 28.2.The words "at any time" used in Section 10 would support that there is no period of limitation in making an order of reference.

28.3.At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.

28.4.Whether dispute is alive or it has become stale/non-

existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for

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making the order of reference.

29.If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/Industrial Tribunal to decide the same issue coming before it.

30. XXXX

31. XXXX

32. XXXX

33. XXXXX

34. XXXX

35. XXXXX

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

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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 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. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the

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action is not brought within that prescribed period the aggrieved party loses 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 the 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 2-A 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 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. XXXXX
    42.3. XXXX







      C/SCA/9810/2019                                ORDER DATED: 29/09/2021

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.

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.

45. On the application of the aforesaid principle to the facts of the present case, we are of the view that the High Court correctly decided the issue holding that the reference at such a belated stage i.e. after fourteen years of termination without any justifiable explanation for delay, the appropriate Government had no jurisdiction or power to make reference of a non-existing dispute."

9. Thus, after survey of various judgements on the issue of delay in raising an industrial dispute, the Supreme Court has held that if a workman does not raise a dispute for a long time, it can be presumed that he has acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. It is also held that a right not exercised for a long time is non-existent and 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 delay. The

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Supreme Court has asserted that the words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute, no reference is to be made. Thus, it is held that an "existence or apprehension of an industrial dispute is a sine qua non for making the reference". Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. The Apex Court has further observed 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 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. In the present case, the workman was unable to satisfy whether he pursued his illegal termination, and kept the dispute alive. Nothing is produced before the Labour Court in this regard.

10. Reliance is placed by the learned advocate Mr.Mishra on the judgments will not come to his rescue, as before the Division Bench, there was no such issue raised, nor the judgment on the Apex Court in Prabhakar (supra) case is referred, but on the contrary the award of the Labour Court was in favour of the workman and he was directed to be reinstated.

11. In the present case, it appears that even if the contention raised by the petitioner is accepted that the some persons were employed after his termination, no specific date, period or year has been given in his written statement or no evidence is produced before the Labour Court that when they were engaged, and he had immediately approached the authorities

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when he came to know of such engagement. The Supreme Court in case of Sureshwati(supra) has reiterated that the burden lies on the workman to establish that he had worked for 240 days. The Apex Court has held thus:

"18 On the basis of the evidence led before the Labour Court, we hold that the School has established that the Respondent had abandoned her service in 1997, and had never reported back for work.

The Respondent has failed to discharge the onus to prove that she had worked for 240 days in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days in the twelve months preceding the date of her alleged termination on 8.3.2006, which she failed to discharge.

A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha, (2014) 16 SCC 130 held that :

"7. It is fairly well-settled that for an order of termination of the services of a workman to be held illegal on account of non-payment of retrenchment compensation, it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25-B of the Industrial Disputes Act, 1947 . For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25-B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 Municipal Corpn., Faridabad v. Siri Niwas, (2004) 8 SCC 195 M.P. Electricity Board v. Hariram, (2004) 8 SCC 246 Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasthan, (2004) 8 SCC 161 : 2004 SCC (L&S) 1055] , Surendranagar District Panchayat v. Jethabhai Pitamberbhai, (2005) 8 SCC 450 and R.M. Yellatti v. Executive Engineer, (2006) 1 SCC 106 unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it, has been the subject-matter of pronouncements of this Court in Municipal Corpn., Faridabad v. Siri Niwas and M.P. Electricity Board v. Hariram [M.P. Electricity Board v. Hariram, , reiterated in RBI v. S. Mani, (2005) 5 SCC 100. This Court has held that only because some documents have not been produced by the management, an adverse inference cannot be drawn against it."

Thus, in absence of any evidence produced by the petitioner-

workman establishing that he had worked under the Respondent continuously for 240 days and, coupled with the fact that the industrial

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dispute has been raised after a considerable delay without keeping the dispute alive; this Court does not find any illegality or perversity in the award. Hence, the same does not require any interference.

11. In light of the foregoing observations, the present writ petition fails. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK