Gujarat High Court

Chanchiben Shivabhai Waghela vs Presiding Officer on 8 August, 2022

Bench: Biren Vaishnav

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5622 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 6786 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 5678 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 6440 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 6441 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 6442 of 2020
==========================================================
                       CHANCHIBEN SHIVABHAI WAGHELA
                                  Versus
                            PRESIDING OFFICER
==========================================================
Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS REENA M KAMANI(6007) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR KEYUR A VYAS(3247) for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 08/08/2022

                                ORAL ORDER

1. Heard Mr. P.H. Pathak, learned advocate for the

petitioners and Mr. Keyur Vyas, learned advocate for

respondent no. 2.

2. In these petitions, under Article 226 of the

Constitution of India, the awards of the Labour Court are

under challenge in which the Labour Court taking into

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consideration delay of 13 years in raising the dispute has

awarded compensation rather than reinstatement.

3. Mr. Pathak, learned counsel for the petitioners

relying on the papers of Special Civil Application No.

5622 of 2020 would submit that from the terms of

reference, it was evident that the workman was working

as a Safai Kamdar since the year 1985 and was

terminated with effect from 15.02.1997. He would take

the court through the reasonings advanced by the Labour

Court awarding compensation rather than reinstatement.

Assailing the award of the Labour Court, it is his

contention that though having come to a specific positive

finding that the termination was in violation of provisions

of Section 25F and having also found that there was

violation of Section 25G and N, the Labour Court

committed material error in restricting the relief only to

compensation rather than awarding reinstatement and or

moulding the relief for backwages and or continuity of

service. He would further submit that once the Labour

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Court had condoned the delay in initiating the reference

it was not open for the court to otherwise take into

consideration the delay of 13 years and deny

reinstatement.

4. Mr. Keyur Vyas, learned advocate appearing for

respondent no. 2 - Kalol Municipality would find support

in justifying the relief of the Labour Court by relying on

the decision of the Division Bench of this Court in Letters

Patent Appeal No. 1789 of 2019 and allied appeals

decided on 04.03.2021. The case before the Division

Bench was that therein a challenge was made to the

termination by raising a dispute before the Labour Court

after a gross delay of 13 to 14 years. Considering the

decision of the Hon'ble Supreme Court in the case of

Prabhakar vs. Joint Director, Sericulture

Department and Another reported in [(2015) 15 SCC

1], the Division Bench held as under:

"5.3 In Prabhakar v. Joint Director, Sericulture Department [(2015)15 SCC 1] which decision was referred to and relied on by learned

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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 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

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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 Court or Tribunal for adjudication of disputes of dismissal, discharge, retrenchment etc. treated as industrial disputes and provides in its sub- section (3) that application referred to in subsection (2) shall be made to the Labour

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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 petitioner- workman 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 party- respondent Trust one Hareshbhai Nathalal gave his evidence in Reference (LCB) No.40 of 2011 and he was crossexamined 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 reengagement 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 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.

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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 appellantspetitioners 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 prerequisite 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 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

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approaching in Labour Court and on factual merits, any of the appellantpetitioner 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."

4.1 Mr. Vyas would submit that it was a case where

there was no question of deciding the issue in the context

of staleness of dispute taking into consideration Section

25G and H of the Industrial Disputes Act, 1947.

5. Having heard learned advocates for the respective

parties, it shall be in the fitness of things to refer to the

decision of the Apex Court in the case of Prabhakar

(supra). There too, the primary submission made by

learned counsel for the workman was that the law of

limitation would not apply and even if a dispute was

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raised belatedly, in such circumstances there was ample

power to the Labour Court to mould the relief. Reliance

was placed therein on a decision of the Apex Court in the

case of Raghubir Singh vs. Haryana Roadways

reported in (2014) 10 SCC 301. On the question

whether the provisions of the Limitation Act would apply

to an industrial dispute, the Apex Court did hold that

though the provisions of the Act would not apply the

question that needs to be considered is whether the

dispute was live. After extensively considering the

provisions of Industrial Dispute Act, particularly the term

'industrial dispute' as defined under Section '2k' of the

Act, the Apex Court held as under:

"31. Section 2(k) of the IDA defines 'industrial dispute' and it reads as under:

"'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;"

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32. As per Section 2A dispute relating to discharge, dismissal, retrenchment or termination of an individual are also deemed as industrial dispute and, therefore, an individual is given right to raise these disputes.

33. The term 'industrial dispute' connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression 'dispute or difference' as used in the definition, therefore, means a controversy fairly definite and of real substance, connected with the employment or non-employment or with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.

34. To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term:

'Dispute': "to argue about, to contend for, to oppose by argument' to call in question

- to argue or debate (with about or over), - a contest with words; an argument; a debate; a quarrel;

35. Blacks law dictionary, 5th Edition, page 424 defines 'dispute' as under:

"Dispute. - A conflict or controversy;

a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegations on

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the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."

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 petitioner on April 01, 1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for 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 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 workmen did not raise any protest and did not demand his reinstatement, the employer presumed that the workmen has accepted his termination and,

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therefore, he did not raise any dispute about his termination. It can be said that workmen, 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 Constitution of India. In

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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 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 looses 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

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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 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 2A 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

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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. Dispute or difference arises when one party make a demand and other party rejects the same. It is held by this Court in number of cases that before raising the industrial dispute making of demand is a necessary pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exist. 42.3. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses that issue is still alive, delay would not come in his way because of the

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reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred.

42.4 Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 2Aof the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.

42.5. Take another example. A workman approaches the Civil Court by filing a suit against his termination which was pending for

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number of years and was ultimately dismissed on the ground that Civil Court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.

42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.

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

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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 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 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."

6. Summarizing the law therefore, the Apex Court held

that although there is no limitation prescribed under the

Act for making a reference, the policy of industrial

adjudication is that very stale claims should not be

generally encouraged. Taking into consideration these

aspects, perusal of the award of the Labour Court would

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indicate that the Labour Court was satisfied that after

1997 though the delay was condoned there was delay of

13 years after which the reference was raised.

Accordingly, the Labour Court by the awards under

challenge awarded compensation rather than