Laxmanbhai Haribhai Panchal vs Divisional Controller S T Corporation ...
2024 Latest Caselaw 5768 Guj

Gujarat High Court

Laxmanbhai Haribhai Panchal vs Divisional Controller S T Corporation ... on 28 June, 2024

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     C/SCA/9358/2024                              JUDGMENT DATED: 28/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9358 of 2024


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                    LAXMANBHAI HARIBHAI PANCHAL
                               Versus
         DIVISIONAL CONTROLLER S T CORPORATION PALANPUR
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Appearance:
MR ND SONGARA(2198) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 28/06/2024

                            ORAL JUDGMENT

1. Present petition is filed under Articles 226 and 227 of

the Constitution of India and under the provisions of the

Industrial Disputes Act, 1947 challenging the impugned

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award dated 19.12.2014 passed by the Presiding Officer,

Industrial Tribunal No.5, Ahmedabad in Reference (LCP)

No. 60 of 2009 (Ex.45) 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 19.12.2014 passed by the Industrial Tribunal in Reference (IT) No.60 of 2009 at annexure-D.

(B) Your Lordships may kindly be pleased to allow the Reference (LCP) No. 60 of 2009 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 the

present petitioner was working as Conductor Badge

No.31 with the respondent Corporation since long. The

petitioner was on duty on 21.09.2000 at the route from

Rapar to Ahmedabad. The said route was express route

and prior to that the petitioner was serving on local

routes. The bus was over crowed and the petitioner was

in process of issuance of tickets to the passengers at that

time the bus was checked buy checking squad and the

petitioner was in process of issuing the tickets after

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collecting the fare, but the checking squad stopped the

petitioner to issue tickets to passengers and prepared a

false and fabricated case against the petitioner for

collecting fare and not issuing tickets to the passengers.

The respondent Corporation issued charge-sheet to the

petitioner and the petitioner submitted his reply against

the said charge-sheet. The respondent Corporation

initiated departmental proceedings against the petitioner.

After completion of the departmental inquiry, the Inquiry

Officer submitted his report / findings to the respondent

Corporation, wherein the Inquiry Officer imposed the

punishment by stopping six increments with future effect.

2.1 Against the said report filed by the Inquiry Officer,

the petitioner preferred first departmental appeal before

the first appellate authority, but the case of the petitioner

was reviewed and enhanced the punishment from five

increments with permanent effect to stoppage of six

increments with future effect. Against the said order, the

petitioner preferred the Second Departmental Appeal and

in the said appeal, the Second Appellate Authority by

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order dated 31.05.2006 modified the order of punishment

from stoppage of six increments with future effect to

stoppage of four increments with future effect.

2.2 Feeling aggrieved and dissatisfied with the aforesaid

order of punishment, the petitioner preferred the

Reference (IT) No.60 of 2009 before the learned

Industrial Tribunal, Ahmedabad.

2.3 The Presiding Officer, Industrial Tribunal No.5,

Ahmedabad, after hearing the parties, passed an

impugned Award dated 19.12.2014 (Ex.45) in Reference

(IT) No. 60 of 2009, 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

Award dated 19.12.2014, passed by the Presiding Officer,

Industrial Tribunal No.5, Ahmedabad in Reference (IT)

No. 60 of 2009, the petitioner has filed this petition under

Articles 226 and 227 of the Constitution of India.

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3. Heard Mr.N.D. Songara, learned Counsel for the

petitioner.

4. Mr. Songara, learned Counsel for the petitioner has

submitted that the impugned award passed by the

learned Industrial Tribunal is illegal, arbitrary, unjust,

perverse and contrary to the settled principles of law. He

further submitted that the learned Industrial Tribunal has

categorically came to conclusion that the findings

recorded by the Inquiry Officer are baseless and perverse

and rejected the reference of the petitioner. He further

submitted that it is settled principle of law that once the

findings recorded by the Inquiry Officer are held to be

baseless and perverse, no other facts are required to be

looked into and therefore, the learned Industrial Tribunal

ought to have allowed the reference of the petitioner. He

further submitted that the Industrial Tribunal has

seriously erred and failed to appreciate that at the time of

checking, the bus was over crowded and after collecting

the fare, the process of issuing the tickets was going on,

but the checking squad stopped the petitioner to issue the

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tickets and this fact has not been properly taken into

consideration by the Industrial Tribunal. He further

submitted that the Industrial Tribunal has seriously erred

to appreciate that the petitioner was on duty at the route

from Rapar to Ahmedabad and the said route was express

route and the petitioner was deputed for the first time on

the express route and therefore, the petitioner was facing

difficulties to verify the amount of fare and to issue

tickets to the passengers. He further submitted that the

Industrial Tribunal has erred to appreciate that prior to

deputing the petitioner on express route, the petitioner

was performing duty at local routes and on the very first

day of deputing the petitioner on express route, this

incident has taken place and the petitioner was held to be

guilty of misconduct. 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.

4.1 Mr.Songara, learned Counsel for the petitioner has

relied upon the decision of this Court in case of

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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.

4.2 Relying upon the said decision, Mr.Songara, learned

Counsel for the petitioner has submitted that as this

Court has held the regulation 113 unconstitutional and

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.

4.3 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 Presiding Officer, Industrial Tribunal No.5,

Ahmedabad may be quashed and set aside.

5. 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,

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Industrial Tribunal No.5, Ahmedabad.

7. On going through the impugned award, it transpires

that the petitioner has remained silent for almost 11

years and therefore, after considering all these relevant

aspects the Presiding Officer, Industrial Tribunal No.5,

Ahmedabad has decided the reference against the

petitioner. The relevant observations made by the Labour

Court in the impugned order read as under:-

"12. Depot Manager APSRTC Vs. B.Swamy reported in 2007 AIR SCW 4930, it has been observed in para 7, as under :

7. We fail to understand how the incident could be characterized as accidental. The mere fact that this was the first occasion when the respondent was caught, is no ground to hld that it was accidental. What weighed with the learned Judges was the fact tht the respondent had not found to be involved in such irregularities earlier. In our view that is not very material in the facts of this case. A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honesty collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. It conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. The High Court was, therefore, not justified in observing that the management gave "Sexcess gravity"

to the offence. We are constrained to observe that the High Court was not justified in characterizing the order of the management as one induced by exaggeration of the gravity of the offence. The conductor performs only the duty of issuing tickets tot he passengers and accounting for the fare collected from the passengers tot he management. If he is dishonest in the performance of

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his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimized by the fact that he was no earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonestly amounting to breach of faith may invite serious punishment."

14. In the case of Regional Manager, U.P.SRTC Vs. Hoti Lal reported in (2003) 3 SCC 605, the apex Court observed at p.614 SCC as under :-

"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal."

13. Therefore, considering the aforesaid observations made by the Apex Court, and considering the facts of this case, post of conductor is a post of confidence and faith and little breach of such confidence and faith would shaken the confidence and faith and therefore, according to my opinion, Labour Court has rightly appreciated the oral and documentary evidence on record and has rightly passed the award in question and same would not warrant any interference of this court in exercise of the powers under Article 227 of the Constitution of India. Therefore, this petition is required to be dismissed.

14. In result, this petition is dismissed."

8. The learned counsel for the petitioner has admitted

that he has no other explanation with regard to delay in

approaching the labour Court at belated stage.

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9. At this it is appropriate to take into account the

observations made by the Hon'ble Apex Court and this

Court in following decisions:-

9.1 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.

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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 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."

9.2 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 :-

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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 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

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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."

9.3 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

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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 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

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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 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

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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 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

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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 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."

10. 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

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be raised within reasonable time. In present case, there is

gross delay of almost 11 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

explanation by the learned Counsel for the petitioner.

11. 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 eleven years and therefore, petition

deserves to be dismissed on that ground only.

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12. 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 eleven 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 11 years. An aggrieved person cannot approach the

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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.

13. Hon'ble Apex Court in case of Prabhakar vs. Joint

Director Sericulture Department and another

reported in (2015) 15 SCC 1, has discussed with

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

eleven years.

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14. 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.

15. In view of the above, present petition is not

entertained and the same is hereby dismissed.

(HEMANT M. PRACHCHHAK,J) MOHMMEDSHAHID