Mahipatsing Jorubha Chudasama vs The Deputy Executive Engineer
2023 Latest Caselaw 721 Guj

     C/LPA/111/2023                               ORDER DATED: 30/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 111 of 2023

          In R/SPECIAL CIVIL APPLICATION NO. 14355 of 2020

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                      MAHIPATSING JORUBHA CHUDASAMA
                                   Versus
                       THE DEPUTY EXECUTIVE ENGINEER
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Appearance:
HITESH A MAKWANA(8644) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 30/01/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. Krishnan Ghaveria for learned advocate Mr. Hitesh Makwana for the appellant.

2. The appellant-the original petitioner has filed this Letters Patent Appeal under Clause 15 of the Letters Patent to call in question common judgment and order dated 12.1.2022 of learned single Judge in so far as it concerns the Special Civil Application NO. 14355 of 2020. Learned single Judge dismissed the petition.

2.1 While dismissing the petition, learned single Judge observed and held,

"....the workmen were unable to satisfy whether they pursued their illegal termination, and kept the dispute alive. Nothing is produced

C/LPA/111/2023 ORDER DATED: 30/01/2023

before the Labour Court in this regard. The petitioners workmen were required to be vigilant enough to raise the industrial dispute within a reasonable period. It is trite that delay comes in the way of equity. Thus, the enormous delay of 17 years in raising the dispute will eclipse the retrenchment which was in violation of Section 25F 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."

2.2 The prayer in the petition was to set aside the judgment and award dated 12.2.2019 of Labour Court, Rajkot in Reference (LCR) No. 35 of 2016. The Labour Court dismissed the Reference of the workman.

3. The petitioner was engaged as daily wager with effect from 16.1998. The services of the petitioner came to be terminated on 31.12.1998. The original petitioner-workman approached the Labour Court complaining breach of section 25F of the Industrial Disputes Act, 1947. By filling Reference No. 35 of 2016 independently, the demand notice was raised by the workman after yawning gap of 17 years.

4. Learned single Judge relied on the decision of the supreme court in Prabhakar vs. Joint Director, Sericulture Department (AIR 2016 SC 2984). The following observations from Prabhakar (supra) were inter alia deserve to be noticed, which were also reproduced by learned single Judge,

"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

C/LPA/111/2023 ORDER DATED: 30/01/2023

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." (para 36)

5. The industrial dispute raised after gap of 17 years is virtually a barred remedy. Not only that the workman is presumed to have acquiesced in view of long passage of time, during which he set tight towards his right. The claimed right not exercised for a long time would render the dispute virtually non existent. The condition of existence or apprehension of an industrial dispute which is a sine qua non, could not be said to have been satisfied after 17 years and more. Even otherwise, the stale claim could not be encouraged to give accommodation to indolent litigant. Learned single Judge was justified in noticing that the industrial dispute was raised by the workman in the instant case after long period of 17 years.

5.1 The following was observed by learned single Judge,

"9. ...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

C/LPA/111/2023 ORDER DATED: 30/01/2023

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 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."

6. The reasons supplied and approach adopted by learned single Judge in dismissing the petition could be said to be eminently legal and proper. No interference is called for.

7. This Letters Patent Appeal is dismissed summarily.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) C.M. JOSHI