Gujarat High Court

Paljibhai Dayabhai Chavda vs Jamnagar Municipal Corporation on 22 July, 2022

Bench: A.Y. Kogje

     C/SCA/20179/2018                                    ORDER DATED: 22/07/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20179 of 2018

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                    PALJIBHAI DAYABHAI CHAVDA
                               Versus
             JAMNAGAR MUNICIPAL CORPORATION & 1 other(s)
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Appearance:
MS VISHWA A.SHASTRI for MR BHARAT JANI(352) for the Petitioner
MR RAJESH CHAUHAN for MR HS MUNSHAW (495) for Respondent No. 1
NOTICE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 22/07/2022

                              ORAL ORDER

1. This petition under Articles 226 /227 of the Constitution

of India is filed challenging award dated 13.04.2018 passed by the

Presiding Officer, Labour Court, Jamnagar in Reference (LCR)

No.60 of 2013. By the aforesaid award, the claim of the petitioner

came to be dismissed for reinstatement and back wages to the

original post of the petitioner.

2. Learned Advocate for the petitioner vehemently

submitted that the Labour Court has not taken into consideration

the merits of the case at all with regard to his longevity of service

and his master-servant relation, but only on the basis of delay and

acquiescence, the award has been passed. It is submitted that the

Labour Court could not have rejected the reference on the ground

of delay, more particularly when the petitioner was very much

before this Court agitating his grievance throughout. It is

C/SCA/20179/2018 ORDER DATED: 22/07/2022

submitted that the Labour Court has thoroughly disregarded the

fact of the petitioner being before the High Court in various

petitions. Learned Advocate drew attention of this Court to the

order passed by this Court in three petitions, filed from time to

time. It is also submitted that as the petitioner had agitated the

issue of regularization, the respondent had resorted to an illegal

act of terminating the services of the petitioner.

2.1 Lastly, learned Advocate for the petitioner made a

valiant attempt praying for compensation as the petitioner has not

attained age of superannuation and has, therefore, relied upon

decisions of the Apex Court in case of Ranbir Singh Vs.

Executive Eng. P.W.D., in Civil Appeal No.4483 of 2010 dated

02.09.2021 and in case of State of Uttarakhand & Anr. Vs. Raj

Kumar in Civil Appeal No.124-125 of 2019 dated 07.01.2019.

3. As against this, learned Advocate Mr.Rajesh Chauhan

for learned Advocate Mr.H.S.Munshaw for the respondent

submitted that the petitioner was before this Court for the same

relief and this Court did not entertain his petitions on more than

one occasion and therefore, the Labour Court was justified in

dismissed the reference. It is further submitted that the petitioner

has not been able to explain the delay of approximately 10 years

despite liberty reserved by this Court in favour of the petitioner to

avail alternative remedy.

       C/SCA/20179/2018                               ORDER DATED: 22/07/2022



3.1             It is lastly submitted that the claim of the petitioner is a

dead claim when the petitioner approached the Labour Court in the

year 2013. It is also submitted that in the year 2004 itself, the

petition filed by the petitioner was dismissed with specific

observation to avail alternative remedy. Despite this, instead of

filing reference, in the year 2013, yet another petition for the same

relief was filed, which also came to be dismissed by this Court and

hence, delay was not explained and the reference was rightly

dismissed.

3.2 Learned Advocate for the respondent relied upon

decision of the Apex Court in case of Prabhakar vs. Joint

Director, Sericulture Department & Anr., reported in (2015)

15 SCC, 1, to substantiate his argument about claim of the

petitioner being a dead claim.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the first

petition filed by the petitioner was Special Civil Application

No.3158 of 2002, which was filed claiming to decide representation

of the petitioner for absorption which was made on 25.01.2001.

This petition came to be disposed of by order dated 08.03.2002 for

considering the representation. It appears that thereafter, as

claimed by the petitioner, the petitioner came to be orally

terminated on 31.03.2001 and therefore, Special Civil Application

No.2363 of 2004 came to be filed, which also came to be rejected

C/SCA/20179/2018 ORDER DATED: 22/07/2022

by order dated 19.07.2004, wherein this Court observed as under:-

"This petition is essentially by two group of daily wage labourers. One is seeking reinstatement in service and also regularisation in service. The other group of petitioners who are still in service seek regularisation in service. The service details of none of the petitioners is placed on the record of the matter, except the statement at Annexure-'A' to the petition. It is not stated that since when the service of those petitioners has been terminated or for the period for which they rendered service as daily wage labourers. A common petition by two group of labourers seeking distinct reliefs is not maintainable. The averments made in the petition are vague. Specific averments are not made in the petition. The petition shall also involve disputed questions of fact. The petition under Article 226 of the Constitution of India in the present nature shall not be maintainable. Petition is, therefore, summarily rejected."

5. Despite the aforesaid order, it appears that, the

petitioner, tough allegedly out of service, made no movement to

move the Labour Court, but instead again filed a petition being

Special Civil Application No.637 of 2013, which came to be

disposed of by order dated 17.06.2013, where the petitioner was

permitted to withdraw the petition to avail remedy under the

Industrial Disputes Act. It is thereafter that the petitioner, in the

year 2013, raised industrial dispute.

6. In the opinion of the Court, the Labour Court has taken

into consideration the fact that no explanation was offered by the

petitioner for a period between 19.07.2004 to 2013 when reference

was filed. In the opinion of the Court also, though order dated

17.06.2013 was order of withdrawing of the petition to raise

C/SCA/20179/2018 ORDER DATED: 22/07/2022

industrial dispute, still, it was incumbent upon the petitioner to

explain delay between 2004 to 2013, which the petitioner has failed

to discharge.

7. The Apex Court in case of Prabhakar (supra) has held

with regard to non-existent dispute. It is held in para-44 as under:-

"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."

8. With regard to argument made for the purpose of

giving compensation, the only evidence coming on record is

pertaining to oral termination on 31.03.2001. However, there is

nothing to indicate the date on which the petitioner had entered

into the services. Not only that, before the Labour Court also,

there is nothing to indicate the number of days that the petitioner

had worked and no claim for compensation was made either before

the Labour Court or before this Court. However, insofar as

reliance placed by the petitioner on the decision of the Apex Court

in case of Ranbir Singh (supra) is concerned, it would be

C/SCA/20179/2018 ORDER DATED: 22/07/2022

appropriate to observe that finding of fact was given by the Labour