Lalsing Jodhsingh Lodha vs Ahmedabad Municipal Corporation
2021 Latest Caselaw 15301 Guj

     C/SCA/5676/2021                                  JUDGMENT DATED: 29/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5676 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                           LALSING JODHSINGH LODHA
                                     Versus
                       AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 29/09/2021
                               ORAL JUDGMENT

[1] Rule. Learned advocate Mr.Munshaw waives service of notice of rule on behalf of the respondent.

Learned advocate Mr.T.R.Mishra has submitted that the petitioner, on realising that the corporation has engaged some workers after his termination immediately raised industrial dispute in the year

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2014. Learned advocate Mr.Mishra has placed reliance on the decision of the Apex Court in the case of Brahmbhatt Jayesh Bhupatray vs. State of Gujarat rendered in Letters Patent Appeal No.1554 of 2018 dated 13.03.2019, in support of his submission that the Reference cannot be rejected on the ground of delay. It is submitted that the Reference could not have been rejected on the day when violation of Section 25(F) of the Industrial Disputes Act, 1947 (for short "I.D.Act") is proved.

[2] At the outset, learned advocate Mr.Munshaw has submitted that the industrial dispute raised after a delay of 14 years and hence, the Labour Court has precisely rejected the reference. He has submitted that even as per the statement of claim made by the petitioner workman, he was orally terminated on 03.10.1999, whereas the reference has been filed in the year 2014. In support of his submissions, learned advocate Mr.Munshaw has placed reliance on the decision of the Apex Court rendered in the in the case of Prabhakar vs. Joint Director, Sericulture Department and Another reported in 2018 (15) SCC

1.

[3] It is the case of the petitioner that he was engaged by the respondent corporation in the year

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1997 and his service was illegally terminated on 03.10.1999. The petitioner, thereafter, raised industrial dispute and a copy of Form under section 10(1)(c) of Industrial Disputes Act, 1947, along with application of condonation of delay was filed. The appropriate Government has referred the dispute to the Labour Court, Ahmedabad and the same was registered as Reference (LCA) No.288 of 2014. The petitioner accordingly filed the statement of claim before the Labour Court, Ahmedabad, and the respondent corporation also filed a written statement. It appears that during the proceedings, the respondent corporation has examined one Vikarambhai Bhanabhai Patel, who was working as an Assistant Manager (P&A) in the Garden Department. The Labour Court, Ahmedabad thereafter, passed the impugned award dated 26.06.2019 rejecting the reference on the ground of delay.

[4] This court has perused the award. As the facts narrated above, the same would suggest that the dispute has been raised after a period of 15 years and there is nothing in defence either oral or documentary evidence produced by the petitioner before the Labour Court indicating that the workman has kept the dispute alive by approaching the respondent corporation with

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regard to alleged illegal termination. The Labour Court, though has held that the termination of the workman was in violation of Section 25(F) of the I.D.Act.

[5] 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 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

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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 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

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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 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.

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42.2. XXXXX 42.3. XXXX

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."

[6] Thus, after survey of various judgments 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

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prescribed by any statute relating to certain proceedings; in such cases courts have coined the doctrine of laches and delay. The 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. The petitioner- workman was required to be vigilant enough to

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raise the industrial dispute within a reasonable period. It is trite that delay comes in the way of equity. Thus, the enormous delay of 15 years in raising the dispute will eclipse the retrenchment which was in violation of Section 25(F) of the I.D.Act. The Court is not expected to exercise its discretion to such indolent persons, who approach the Court of law as per their leisure.

[7] 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.

[8] In light of the foregoing observations, the present writ petition fails. Notice is discharged.

(A. S. SUPEHIA, J) NABILA A. VHORA