Rumalbhai Abhabhai Bariya vs Deputy Executive Engineer
2022 Latest Caselaw 4595 Guj

Citation : 2022 Latest Caselaw 4595 Guj
Judgement Date : 2 May, 2022

Gujarat High Court

Rumalbhai Abhabhai Bariya vs Deputy Executive Engineer on 2 May, 2022

Bench: Biren Vaishnav

     C/SCA/2571/2019                             JUDGMENT DATED: 02/05/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 2571 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       RUMALBHAI ABHABHAI BARIYA
                                 Versus
                       DEPUTY EXECUTIVE ENGINEER
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     Date : 02/05/2022
                     ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Kurven Desai, learned AGP, waives

service of rule on behalf of the State - respondent. With consent of the

learned advocates appearing for the respective parties, the matter is taken

up for final hearing today.

2 Heard Mr.Dipak Dave, learned counsel for the petitioner and

Mr.Kurven Desai, learned AGP.

3 Challenge in this petition by the workman is to the award of the

Labour Court dated 03.04.2018, by which, the Labour Court has awarded

C/SCA/2571/2019 JUDGMENT DATED: 02/05/2022

compensation of Rs.35,000/- to the petitioner. Aggrieved by this award of

the Labour Court, Mr.Dave, learned counsel for the petitioner would

submit that, admittedly, when the Labour Court came to the conclusion

that the petitioner had completed 240 days of service in each year and

worked continuously from the year 1982 to 1989, merely falling short of

granting reinstatement, it granted compensation. Reinstatement ought to

have followed as a matter of course. Appropriate relief of granting

backwages could have been moulded on the basis of delay in filing the

Statement of Claims raising an industrial dispute.

4 Considering this, Mr.Kurven Desai, learned AGP, would support

the award of the Labour Court and submit that a correct view has been

taken by the Labour Court in view of the decision in the case of

Prabhakar vs. Joint Director, Sericulture Department & Anr., reported

in 2015 (15) SCC 1., where the Hon'ble Supreme Court considering the

decisions on hand have found that a dispute has to be live and though

strictly the Law of Limitation would not apply, if the dispute is stale, it is

open for the Labour Court not to entertain the reference. He would rely

on paragraphs 43 to 46 of the decision which reads as under:

"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 backwages or lesser back wages or grant compensation instead of reinstatement.

C/SCA/2571/2019 JUDGMENT DATED: 02/05/2022

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.

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.