Gujarat High Court
Thakor Babuji Vastaji(Deceased) vs Uttar Gujarat Vij Company Limited on 18 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3643 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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THAKOR BABUJI VASTAJI(DECEASED) & ORS.
Versus
UTTAR GUJARAT VIJ COMPANY LIMITED
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR ND SONGARA(2198) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 18/06/2024
ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of
the Constitution of India and under the provisions of the
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Industrial Disputes Act, 1947 challenging the impugned
award dated 30.10.2018 passed by the Presiding Officer,
Labour Court, Palanpur in Reference (LCP) No. 60 of
2010(Ex.82) with below mentioned relief/s:-
"11(A) Your Lordships may kindly be pleased to issue a
writ of certiorari and / or any other appropriate writ,
order or direction in the like nature to quash and set
aside the impugned award dated 30.10.2018 passed by
the Presiding Officer, Labour Court, Palanpur in
Reference (LCP) No. 60 of 2010 (Ex.82) at annexure-M.
(B) Your Lordships may kindly be pleased to allow the
Reference (LCP) No. 60 of 2010 filed by the petitioner in
the interest of justice.
(C) Any other and further relief may kindly be granted as
Your Lordships deem fit, just and proper in the interest
of justice.
2. The facts giving rise to present petition are that
present petitioner workman was initially appointed as
'Trainee Helper' by an order dated 28.11.1975 and joined
his service w.e.f. 04.12.1975. After completion of training,
by an order dated 07.09.1977, the petitioner was
appointed as regular 'Helper' in the pay scale of
Rs.240-5-370 per month. All of sudden, the respondent,
by an order dated 30.04.1999 passed under Regulation
113 of the respondent Board, terminated the services of
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the petitioner, making an allegation that the petitioner
has remained unauthorized absent.
2.1 Against the order of termination, the petitioner filed
an Appeal dated 19.01.2000, whereby, the petitioner
requested the respondent to reinstate the petitioner in
service. The respondent, by letter dated 22.06.2000
rejected the appeal of the petitioner stating that there is
no provision of appeal against the order of dismissal
under the Service Regulation No. 113 of the Board. The
petitioner made a mercy appeal dated 19.04.2001 to the
respondent and requested to reinstate the petitioner in
service. As the respondent did not consider the appeal of
the petitioner, the petitioner again by letter dated
15.04.2002, requested the respondent to reinstate the
petitioner in service. The petitioner again by letter dated
10.07.2004 requested the respondent to reinstate the
petitioner in service.
2.2 In pursuance to the letter dated 10.07.2004, the
respondent, by letter dated 31.07.2004 called the
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petitioner with all documentary record. In pursuance to
the letter dated 31.07.2004, the petitioner, by letter
dated 08.08.2004 approached the respondent with all
relevant documents. The respondent Board, without
considering the case of the petitioner for reinstatement in
service, by letter dated 30.11.2004 rejected the request
of the petitioner and confirmed the order of dismissal
passed earlier.
2.3 Despite of repeated oral as well as written requests
made by the petitioner, the respondent did not reinstate
the petitioner in service and therefore, the petitioner
raised an industrial dispute being Reference (LCP) No. 60
of 2010 before the Labour Court, Palanpur. The Labour
Court, Palanpur, after hearing the parties, passed an
impugned Award dated 30.10.2018 (Ex.82) in Reference
(LCP) No. 60 of 2010, whereby the reference of the
petitioner came to be rejected on the ground of delay in
raising the dispute.
2.4 Being aggrieved and dissatisfied with the impugned
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Award dated 30.10.2018, passed by the Labour Court,
Palanpur in Reference (LCP) No. 60 of 2010, the
petitioner has filed this petition under Articles 226 and
227 of the Constitution of India.
3. Heard Mr.N.D. Songara, learned Counsel for the
petitioner and Mr. Premal R. Joshi, learned Counsel for
the respondents.
4. Mr. Songara, learned Counsel for the petitioner has
submitted that the labour Court has failed to appreciate
that the petitioner was permanent employee and the
service of the petitioner is regulated by way of the rules
and regulations of the respondent Board. He has further
submitted that before dismissing the petitioner from
service for alleged misconduct of unauthorized absent,
any departmental inquiry was not conducted nor any
opportunity of hearing was granted to the petitioner.
4.1 Mr.Songara, learned Counsel for the petitioner has
submitted that labour Court has erred in holding that the
action on the part of the respondent Board is as per law.
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With regard to delay, Mr.Songara, learned Counsel for
the petitioner has submitted that after order of dismissal,
the petitioner has written several letters to the
respondent Board, whereby the petitioner requested to
the respondent to reinstate him in service. He has further
submitted that the labour Court has erred and failed to
appreciate the fact that the petitioner has raised an
industrial dispute after a long lapse of 11 and has not any
explanation.
4.2 Mr.Songara, learned Counsel for the petitioner has
relied upon the decision of this Court in case of
Virendrakumar Jayantilal Ganatra vs. Gujarat
Electricity Board reported in 2004(2) G.L.H. 112,
which is confirmed by the Division Bench of this Court
vide order dated 19.11.2013 in Letters Patent Appeal No.
1974 of 2004 and allied matters.
4.3 Relying upon the said decision, Mr.Songara, learned
Counsel for the petitioner has submitted that as this
Court has held the regulation 113 uncostitutional and
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arbitrary and therefore, the order of dismissal passed by
the respondent authority, relying upon the said regulation
113 is bad in law and contrary to the law.
4.4 In view of the above facts, Mr.Songara, learned
Counsel for the petitioner urges before the Court that
present petition may be allowed and the impugned order
passed by the labour Court, Palanpur may be quashed
and set aside.
5. On the other hand, Mr. Shah, learned Counsel for the
respondent has submitted that the impugned award
passed by Presiding Officer, Labour Court is just and
proper and no interference is required to be made. He
has further submitted that the Labour Court has rightly
rejected the claim of the present petitioner. He has
submitted that there is no illegality or perversity in the
order passed by the Labour Court.
5.1 Mr. Shah, learned Counsel for the respondent has
further submitted that after evaluating the evidence on
record and after taking into account all the relevant
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aspects, labour Court has passed impugned award and
therefore, this Court may not interfere in the impugned
award passed by the Labour Court. Mr. Shah, learned
Counsel for the respondent urges before the Court that
present petition may not be entertained and the same
may be dismissed.
6. I have perused the material along with the relevant
documents available on record. I have also gone through
the impugned award passed by the Presiding Officer,
Labour Court.
7. It appears that the petitioner was appointed by the
respondent on 28.11.1975 as Trainee Helper and his
service came to be confirmed by the respondent in 1977
and he was appointed as regular Helper in the pay scale
of Rs.240-5-370 per month. In fact it is alleged that from
April 1997 onwards the petitioner was absent from
service without any sanctioned leave upto April 1999.
Even, the respondents have intimated and informed the
petitioner with regard to his absence, as he has not made
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any leave report and his leave is not sanctioned by the
respondents. The petitioner was on leave without any
report on the following days:-
Sr. Month Days on which the petitioner was absent
No. without sanctioned leave
during the month.
8. In view of the above absentism, the respondents have
initiated proceedings under regulation 113 of erstwhile
UGVCL. It appear that though, the service of the
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petitioner came to be terminated by the respondent
company from 30.4.1999, the petitioner has raised
industrial dispute almost after 11 years in the year 2010.
The petitioner has remained silent for almost 11 years
and therefore, after considering all these relevant aspects
the Presiding Officer, Labour Court has decided the
reference against the petitioner. The relevant
observations made by the Labour Court in the impugned
order read as under:-
"(8) The Ld. Advocate of the first party has argued that,
the main function of the first party institution is to
provide essential services like electricity to the citizens.
First party institution complies with all applicable
provisions under the I.D. Act. The first party institution
has implemented a model code of conduct for the
employees and workers working at their place and has
its own disciplinary and conduct procedures and rules of
appeal for its employees. The first party institution has
been complying with all laws applicable to it and it has
not done any injustice to the second party of this matter
by breaking any rules. The second party has violated the
disciplinary and appeal rules of the institution and has
damaged the financial and administrative reputation of
the first party institution. The second party in this
matter has done repeated insubordination of the
superior officer and has remained continuously absent
from his duty, therefore, the first party institution has
issued termination order to the second party in
accordance with the established rules of the institution.
The first party has provided leave to its employees as
per the rules. Whereas, the second party in this matter
has enjoyed 1245 leave without for which caused
hardships to the citizens. Further, the institution has
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repeatedly issued memos and warnings to the second
party considering his negligence on duty and complaints
of the customers. The institute has proved the same on
record. The appeal of the second party was set aside as
no documentary evidence or any reasonable grounds
were produced by the second party on behalf on
institution in its defense and representation. The second
party had no solid and proper reasons to prove the
irregularity in the presence. Moreover, as he has also
not complied with the written undertaking by not
remaining present on his duty regularly in the past,
remaining absent on duty frequently, as the absence of
second party is not supported, first party institution has
taken lawful decision of terminating the second party.
Moreover, as the second party has filed the present
reference after long period of time, the same is liable to
be rejected on the basis of delay. The second party has
been paid all his dues such as gratuity, C.P.F. etc. at the
time of terminating the second party. Thus, as the
termination order of the institution dated 30/04/1999 is
legal and as the second party has reached the age of
retirement and as the second party is not entitled to
establish himself in the service of the institution or to
get any other relief, it is prayed to set aside the same.
(9) Considering the above submissions of both the
parties, it becomes necessary to study the deposition of
the second party and the deposition of the witness of the
institution. The second party has submitted an affidavit
in form of deposition vide Exhibit-21, wherein he has
supported the facts of the statement of claim. As stated
by him, he was appointed in the institution as Helper
from 04/12/1975 and has worked for more than 240 days
every year in the institution. The second party remained
technically absent, therefore, the second party was
terminated by the institution on 30/04/1999. The second
party appealed against the same to the institution. The
intuition terminated the second party on 22/06/2000
without hearing or informing him and order was passed
to confirm the said order. The organization has not
reinstated the second party despite repeated
representations made in writing to the institution for
reinstatement. No notice, notice pay or retrenchment
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compensation or any other benefit has been paid by the
institution to the second party before he was terminated
vide order dated 30/04/1999. Moreover, no
departmental inquiry of any kind was conducted before
terminating him nor was any opportunity of defense
given. On the other hand, the second party in his cross-
examination states that, his date of birth is 01/06/1955.
He was terminated on 30/04/1999. It is true that, the
complaint was made regarding the same to the Assistant
Labor Commissioner for reinstatement on 08/07/2010. It
is true that, the date of is written 04/12/1999 in the
application. It is true that, he has received Rs.70,874/-
as gratuity and the P.F. amount has also been received.
In cross-examination of the second party, the
documentary evidences produced by the organization
are shown. The said documentary evidences are
admitted by the second party in his deposition. Thus,
considering the deposition of the second party, the
second party joined the first party institution as a helper
at Mehsana on 04/12/1975 and the second party was
terminated by the institution on 30/04/1999 for absence.
As stated by the second party, he was terminated by
oral order. But looking, the record of the said case, the
institution has issued notice to the second party and
terminated him from the service vide a written order
dated 30/04/1999. As the second party used to remain
absent from the institution, notices were issued
frequently to the second party requiring him to remain
present on his duty. The second party has admitted the
said notices in his deposition. Despite that, the second
party did not resume his duty in the institution.
Moreover, the second party has admitted in his
deposition that, the institution has paid the benefits
entitled to him such as P.F., C.P.F., gratuity after he was
terminated.
(10) The witness of the first party Jitendrabhai
Laxmanbhai Rathod has filed an affidavit in the form of
deposition vide Exhibit-71. He has supported the facts of
the written reply submitted by him. The second party
has rendered his services as a helper in the first party
institution at Mehsana and subsequently transferred to
Siddhpur City Sub Division and thereafter transferred
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from there as Helper at C.T. Sub Division Radhanpur.
The second party ordered to terminate the second party
as per the rules established by the first party institution
due to disciplinary violation such as continuous absence
from duty and repeated violation of the orders of the
superior officer etc. The second party was habitually
absent from his duty. Despite repeated oral and written
instructions were given to the second party by his
superior in this regard, the second party used to remain
continuously absent as per the records of the first party
institution. In this regard notices have been sent to the
second party by RPAD. The second party has availed
1245 leave without pay. In this regard, the institution
has repeatedly issued memos and warnings to the
second party considering his negligence on duty and
complaints of the customers. Earlier, charges-sheet was
issued to the second party, at Siddhpur on 07/08/1989
and pursuant to the same, annual increment due to be
paid to the second party was stopped with future effect.
Thereafter, charges-sheet was issued on 19/01/1995 and
the increment of next two years due to be paid to him
were stopped from 23/04/1997 with future effect.
Despite that, as there was no change or improvement in
the conduct of the second party and considering the
complaints and inconveniences of the customers, the
second party was transferred to a sub-office under
Radhanpur Division Office. After repeated written
instructions, the second party resumed duty at
Radhanpur Division Office. The second party continued
his irregularities at Radhanpur leading to increased
customer complaints. Thus, considering continuous
absence of the second party from the duty and the
complaints and inconveniences of the customers of the
institution, the institution has taken a decision to
terminate the second party, after giving a show cause
notice to the second party and as no response from the
second party was received, decision was taken by the
institution to terminate the second party. Therefore, the
other party has been given ample and reasonable
opportunity for making submission in his defense. The
second party was terminated on 30/04/1999.
Thereafter, on 08/07/2010 i.e. after about 11 years the
present reference has been filed. No reasonable grounds
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for this, have been provided by the second party.
Therefore, the reference of the second party is
requested to be set aside.
Whereas, in his cross-examination, witness of the
institute stated that, he has information about the
second party on the basis of the record. It is true that,
the second party had performed his duty from
04/01/1995 to 30/04/1999 but the second party was
irregular in his duty. It is not true that, the second party
was not informed about the departmental inquiry, nor
the notice was given. It is not true that, the second
party, has not produced evidence to the effect that the
workman received the notices issued by the institution.
Thus, considering the deposition of witness of the
organization, the second party was performing his duty
at Mehsana as a helper in the institution. Thereafter,
the second party was transferred to Siddharpur in 1997
and then to Radhanpur. The second party used to
remain frequently absent on duty. In spite of the notices
given to the second party regarding his absence during
his duty, there was no improvement in his conduct.
There were also complaints from customers of the
institution due to the absence of the second party.
Considering the continuous absence of the second party,
the institution has terminated the second party from the
service vide written order dated 30/04/1999.
(11) Thus, upon perusing the testimonies
produced by both the parties mentioned above, second
party had been working as Helper for a long time. But
the second party often remained absent from his duty. In
this regard, the institution has issued notices to second
party to remain present on duty frequently. Though the
second party received the notices, he has failed to
perform his law abiding duties. In this connection,
documentary evidences from Exh 27 to Exh-75 had been
produced by the institution. Upon considering it, the
second party has been served a notice by the institution
regarding his absence. Though the second party has
been served necessary notices by the institution for
remaining absent oftenly without permission, the second
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party has not regularly performed his law abiding duties
as a second party. Further, upon considering the
documents of the second party vide Exh-69, he has been
absent from duty repeatedly during the period from
April 97 to April 99. Although the opponent party-
institution has earlier urged the second party to remain
present on his duty, there had been no improvement in
the conduct of the second party and did not perform his
duties regularly. Therefore, in pursuance of the
provision of Rule No. 113 of the Board, the second party
was not sincere in attending his duties regularly. Though
the second party was served written notices, he did not
remain present on duty. The second party has been
ordered to be terminated by the institution with effect
from 30.04.1999. Thus, the second party remained
absent from his duty and he has not made any
application or taken prior approval from the institution
before proceeding on leave. Further, the second party
has admitted the facts in his testimony that the
institution has served him notice to remain present on
duty. Thus, the first party- institution has proved the fact
of remaining absent frequently from duty of the second
party. After giving sufficient and all opportunities to the
second party to remain present on duty and to defend,
himself lawful decision has been taken and he was
terminated which seems legitimate and proper. The
second party remianed absent from duty in the
institution for a long time without any intimation or prior
approval. Further, considering the record of past service
of the second party, he often remained absent. The first
party-institution has written letters to the second party
to remain present on duty. However, the second party
did not remain present on duty. Thus, the second party
is habitually remained absent from duty without prior
approval. The punishment of termination imposed on the
second party appears to be proper and just. If such a
long absence of the second party is to be considered,
then the administration of the institution will not run
well. Therefore, the termination order passed by the
institution in connection with the absence of the second
party, which appears to be appropriate, reasonable and
just. Therefore, it does not seem to be intervened. In
2009 LLR Page No. 1135 Regional Manager Bank of
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Baroda versus Anita Hon'ble Supreme Court upheld the
termination for long absence. Therefore, in view of the
principle enunciated in the said judgment of the Hon'ble
Supreme Court, the termination order passed by the
first party institution on account of the absence of the
second party seems to be justified and proper.
Therefore, the second party is not entitled to be
reinstated in the service in the first party institution.
Thus, the reference of the second party is liable to be
terminated.
(12) Further, Ld. Counsel for the institution has firmly
argued that since the second party has made the present
reference after a long time i.e., after about eleven years,
it is liable to be terminted on the ground of delay. Upon
considering the fact that the institution has terminated
the second party on 30.04.99. Such fact is undeniable.
The second party has raised a dispute before the
Assistant Labour Commissioner regarding the
reinstatement on 08.04.10 i.e. the reinstatement after
about eleven years. Further, in view of the settled
principles of law, Labour Court can refuse to hear the
reference as the reference is late and no explanation has
been given. On perusal of Hon'ble High Court of Gujarat
2000 LLR Page No. 1196 judgment in Saurashtra
Employees University Versus Sub-Divisional Officer and
Assistant Executive Engineer Karnataka N Shivalinga, I
humbly accept the principles propounded by the Hon'ble
Supreme Court and the Hon'ble High Court of Gujarat.
In the present case, the reference of second party is
liable to be terminated on the ground of delay as the
second party has made the reference after about eleven
years. Therefore, since the second party filed the
reference after about 11 years for which no proper
reason has been shown in its statement of claim, the
second party's reference is liable to be terminated only
on the issue of delay.
Thus, at the end of the above discussion, since the
second party was terminated by the institution on the
grounds of absence by taking necessary action, the
second party has filed the present reference after very
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long time. In such circumstances, the second party is not
entitled for reinstatement. Thus, when the second party
is not entitled for reinstatement, he is not entitled for
the backwages. Therefore, answers of issue no. 1 and 2
are given negative. In view of the above, the following
final award is passed in this matter."
9. The learned counsel for the petitioner has admitted
that he has no other explanation with regard to delay in
approaching the labour Court. However, Mr. Songara,
learned Counsel for the petitioner has tried to submit that
the labour Court has considered the delay of 11 years
instead of 6 years. As per Mr. Sonagara, learned Counsel
for the petitioner upto 2004, the petitioner went into the
correspondence with the respondent and after 2004, the
reference was made before the Presiding Officer, Labour
Court, Palanpur in the year 2010 i.e. after almost 6 years.
However, for such delay of 6 years, he has no explanation
with regard to approach the approach the Labour Court
at belated stage.
10. At this it is appropriate to take into account the
observations made by the Hon'ble Apex Court and this
Court in following decisions:-
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10.1 In the decision in case of Assistant Engineer,
Rajasthan State Agriculture Marketing Board, Sub-
Division, Kota vs. Mohanlal reported in (2013) 14
SCC 543, the Hon'ble Apex Court has observed as
under:-
"Head Note A. Labour Law- Retrenchment - Delay in
raising dispute - Non- applicability of Limitation Act,
1963 to Industrial Disputes Act, 1947 - But delay would
be one of circumstances, whether raised or not, to be
considered for exercise of judicial discretion in
determining relief that is to be granted - Limitation Act,
1963- S.5 - Industrial Disputes Act Act, 1947, S. 25-F.
19. We are clearly of the view that though the Limitation
Act, 1963 is not applicable to the reference made under
the I.D. Act but delay in raising industrial dispute is
definitely an important circumstance which the Labour
Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection
hasbeen raised by the other side. The legal position laid
down by this Court in Gitam Singh that before
exercising its judicial discretion, the Labour Court has to
keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of
service, the ground on which termination has been set
aside and the delay in raising industrial dispute before
grant of relief in an industrial dispute, must be
invariably followed.
20. Now, if the facts of the present case are seen, the
position that emerges is this: the workman worked as a
work-charged employee for a period from 01.11.1984 to
17.02.1986 (in all he worked for 286 days during his
employment). The services of the workman were
terminated with effect from 18.02.1986. The workman
raised the industrial dispute in 1992, i.e., after 6 years of
termination. The Labour Court did not keep in view
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admitted delay of 6 years in raising the industrial
dispute by the workman. The judicial discretion
exercised by the Labour Court is, thus, flawed and
unsustainable. The Division Bench of the High Court was
clearly in error in restoring the award of the Labour
Court whereby reinstatement was granted to the
workman. Though, the compensation awarded by the
Single Judge was too low and needed to be enhanced by
the Division Bench but surely reinstatement of the
workman in the facts and circumstances is not the
appropriate relief."
10.2 In the decision of this Court in case of
Virendrakumar Jayantilal Ganatra (supra) this Court
has held as under:-
"1.1. In one case the petitioner had gone abroad without
waiting for the grant of permission to proceed on leave
by the superior officer and the same was treated to be
continued absence from duty without prior permission of
the concerned authority which made her liable to be
discharged from the service in view of Regulation 113
and accordingly she was discharged from the service.
The facts of each case would be discussed in detail little
later in this judgment.
1.2. Since Regulation 113, which has been resorted to by
the Board to bring about the end of the services of the
petitioners, it has now become the main target of attack
of the petitioners. It is, therefore, required to be
reproduced verbatim. It reads as under :-
Regulation-113 : Continued absence from duty or
overstay, inspite of warning, to return to duty, shall
render the employee liable to summarilydischarged from
service without the necessity of proceedings under the
Gujarat Electricity Board Conduct, Discipline and appeal
procedure. Obviously now the controversy is whether
termination of the services of the petitioners with the
help of Regulation 113 is just, proper and valid in light
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of the contentions that have been raised in the petitions
and the submissions made during the course of hearing
by the counsels for the parties.
14.2. The aforesaid narration as well as the impugned
order of dismissal from the service would clearly show
how regulation 113 can be misused for victimizing an
employee. The impugned order of terminating the
service of the petitioner, if closely perused, would
indicate that though it is based on regulation 113, it is
an order of dismissal and not discharge simpliciter as
envisaged under that regulation. Learned advocate of
the Board Mr. Munshaw has tried to suggest that the
word dismissal is loosely used, otherwise the rest of the
contents of the impugned order would make it very clear
that the power had been exercised under regulation 113.
But considering the factual background in which this
order has been passed, it is nothing but by way of a
penal measure and the order clearly appears to be
punitive in nature. In similar circumstances, learned
Single Judge of this Court [Coram : Coram : H.K.
Rathod, J.] in Special Civil Application No. 10251 of
2001 in the case of G.E.B. v/s. Girishbhai Valjibhai
Chudgar, while considering the order passed under this
very provision i.e. regulation 113, has not given any
different meaning to word dismiss and has held that the
concerned employee of that case was dismissed from the
service for the alleged misconduct of remaining absent.
The Division Bench also in the Letters Patent Appeal No.
652 of 2002 filed against the aforesaid judgment of the
learned Single Judge, on 2/7/2002, has held that when
there is order of dismissal, the procedure prescribed for
passing such order and principles of natural justice are
violated. It had therefore, quashed and set aside the said
order with an observation that it was open for the Board
to follow the requisite procedure and pass appropriate
order in accordance with law. Thus, in the instant case
also it was an order of dismissal and the respondent-
Board wasrequired to follow the procedure prescribed
underthe Conduct, Discipline and Appeal Rules before
passing such order. Admittedly, that had not been done.
The impugned order, therefore, is required to be
quashed and set aside."
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10.3 In the case of M/s. Bombay Minerals Limited
through D.M. Bharadia SCA 13483 of 2019 and
allied petition decided on 26.4.2022 this Court has
observed as under:-
"5 After reference to several decisions cited by the
learned counsels for the respective parties which have
been extensively considered by the Hon'ble Supreme
Court in para 28 of the judgement, the Court held as
under:
"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 appropraite 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."
6 The Hon'ble Supreme Court held that while referring
the dispute for adjudication, the appropriate government
has to keep in mind that whether the dispute is still
existing or is a live dispute and has not become stale and
if that is so, the reference can be refused. The legal
position was then summarized in paras 42 and 44 which
read as under:
"42) On the basis of aforesaid discussion, we
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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 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
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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 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 2A of 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
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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 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 backwages or lesser back
wages or grant compensation instead of
reinstatement. We are of the opinion that the law
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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."
11. Now, it is well settled that the workman has to
approach and raise the industrial dispute within
reasonable time, though there is no time limit prescribed
under the provisions of Industrial Disputes Act, 1947.
However, In view of the judgment of the Hon'ble Apex
Court and this Court, the industrial dispute is required to
be raised within reasonable time. In present case, there is
gross delay of almost 6 years, as per the submission made
by Mr. Songara, learned Counsel for the petitioner and
with regard to the delay occurred there is no any
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explanation by the learned Counsel for the petitioner.
12. It appears that the resolution which is referred to
and relied upon by the Presiding Officer, Labour Court is
declared illegal and violative of provision of Articles 14,
16, 19, 1(g) and 21 of the this Court in case of
Virendrakumar Jayantilal Ganatra (supra), therefore,
so far as the submission of the learned Counsel for the
petitioner with regard to the fact that the very regulation
113 of respondent is declared illegal and in view of that
the order passed by the respondent deserves to be
quashed and set aside, deserves consideration. However,
at the same time, considering the fact that the petitioner
had approached the President Officer, Labour Court after
almost delay of six years and therefore, petition deserves
to be dismissed on that ground only.
13. At this juncture, Mr. Songara, learned Counsel for
the petitioner has submitted that the original petitioner
was died pending the petition on 15.6.2022 and therefore,
his legal heirs were brought on record.
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14. So far as the submission made by Mr. Songara,
learned Counsel for the petitioner, with regard to the
regulation 113 is concerned, this Court is agreed with the
submission made on behalf of the learned Counsel for the
petitioner but so far as the delay is concerned, this Court
is of the view that policy of industrial adjudication to be
kept in mind 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 employer's financial
arrangement and to avoid dislocation of an industry. As
herein the present case the petitioner is unable to explain
the long delay of six years. Doctrine of laches is in fact an
application of maxim of equity "delay defeats equities".
The case of present petitioner is defeated on account of
delay in approaching the Labour Court almost after 6
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years/11 years. An aggrieved person cannot approach the
Labour Court or Industrial Court directly for adjudication
of industrial dispute, except those cases falling under
Section 2A of the Industrial Disputes Act but has to seek
reference of disputes from the appropriate government to
the Labour Court / Industrial Tribunal under Section 10 of
the Act. Section 10(1) stipulates the appropriate
government may, at any time, by order in writing, refer
the dispute to a Board, Labour Court or Industrial
Tribunal where it is of the opinion that any industrial
dispute exists or is apprehended.
15. Here it is not the case of the petitioner that the last
communication is of 2004 then the dispute is persisting
and it is in existence till the filing of the reference in 2010
and there is no explanation worth the name was rendered
by the applicant before the labour Court.
16. Hon'ble Apex Court in case of Prabhakar vs. Joint
Director Sericulture Department and another
reported in (2015) 15 SCC 1, has discussed with
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regard to the existence of the industrial dispute for this
long period and that long period without any explanation
cannot be considered by the Court. Here also in present
case, the learned Counsel Mr. Songara has submitted he
has no any explanation with regard to inordinate delay of
six years.
17. For the foregoing reasons and in view of the
aforesaid observations made by the Hon'ble Apex Court
and this Court in the above referred decisions, this Court
is of the opinion that present petition is devoid of any
merits and present petition does not deserve to be
entertained and the same deserves to be dismissed.
18. In view of the above, present petition is not
entertained and the same is hereby dismissed.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
