Gujarat High Court
Pramodray Jaishankar Trivedi vs Gujarat Electricity Board (Now Paschim ... on 25 November, 2024
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1670 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9660 of 2010
==========================================================
PRAMODRAY JAISHANKAR TRIVEDI
Versus
GUJARAT ELECTRICITY BOARD (NOW PASCHIM GUJARAT VIJ CO LTD)
==========================================================
Appearance:
MR TR MISHRA(483) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/11/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Present appeal is directed against the judgment and order
dated 12.08.2024 allowing the captioned Writ Petition by which the
respondent-Electricity Board has assailed the order dated
03.02.2010 passed by the Labour Court, Jamnagar in Reference
(LCJ) No.70 of 1996, whereby the Labour Court has allowed the
reference and ordered to reinstate the workman in service with
15% back wages.
2. It is the case of the appellant-workman that he was
employed/engaged by the respondent-Board from 01.08.1982 and
thereafter, he was terminated on 15.01.1987 illegally. Thereafter,
he went into slumber and after a period of more than 9 years, he
raised an industrial dispute, which culminated into Reference (LCJ)
No.70 of 1996. The Labour Court found the termination of the
appellant-workman in violation of the provisions of Sections 26F, G
and H of the Industrial Disputes Act, 1947 (hereinafter referred to
as "the Act"). The same was assailed by the Board before this Court
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
by filing the captioned Writ Petition. The learned Single Judge, by
placing reliance on the judgment of the Supreme Court in the case
of Prabhakar v. Joint Director Sericulture Department & Anr.
reported in (2015) 15 SCC 1 has allowed the Writ Petition and set
aside the award passed by the Labour Court.
3. Learned advocate Mr. Mishra, at the outset, has submitted
that the learned Single Judge fell in error in setting aside the award
which was in favour of the workman by placing reliance on the
judgment of the Supreme Court in the case of Prabhakar (supra)
since the termination of the appellant-workman was in violation of
the provisions of Sections 25G and 25H of the Act, which would be a
recurring cause. He has submitted that the juniors to the appellant-
workman were retained and hence, the award could not have been
set aside by placing reliance on the judgment of the Supreme Court.
In support of his submission, he has also placed reliance on the
judgment in the case of State of Uttarakhand v. Raj Kumar,
reported in AIR 2019 SC 310 and has submitted that the present
appeal may be allowed by setting aside the order passed by the
learned Single Judge and restoring the award.
4. Per contra, learned advocate Mr. Dave for the respondent-
Board, at the outset, has submitted that neither before the Labour
Court nor in the present appeal, the workman has tendered any
explanation for delay of more than 9 years in raising the industrial
dispute. It is submitted that the industrial dispute was not kept alive
and the workman has not even cared to give any names of the
juniors or any persons who were appointed after his termination. It
is submitted that the Supreme Court in the case of Prabhakar
(supra) has categorically held that the workman has to keep the
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
dispute alive in order to come out of the delay. Thus, it is urged
that the present appeal may not be entertained.
5. We have heard the learned advocates appearing for the
respective parties. The aforesaid facts are not in dispute. The case
of the appellant-workman is that he was illegally terminated in the
year 1987 and the dispute for the first time was raised in the year
1995 which culminated into reference proceedings being Reference
(LCJ) No.70 of 1996. We have perused the award by which the
Labour Court has set aside the termination of the workman on the
ground of violation of provisions of Sections 25F, 25G and 25H of
the Act. A bare perusal of the award would reveal that the workman
has not anywhere tendered any explanation for the delay. We have
also given ample opportunity to the learned advocate for the
appellant to explain about the delay in raising the industrial dispute
and also whether the workman had kept the dispute alive. However,
no material has been produced before us. It was contended before
us that since the termination of the appellant-workman was in
violation of provisions of Sections 25G and 25H of the Act, the same
would be a recurring cause. On a specific query raised before us, to
the learned advocate for the appellant to point out a single name of
any workman/junior who was retained, however, no such name has
been pointed out. Before the Labour Court also a bald statement
has been made, that the juniors to the appellant were retained and
other persons were also appointed, however no specific
person/workmen has been named. It is contended by learned
advocate Mr.Mishra that in fact an application was filed by the
appellant-workman before the Labour Court seeking production of
documents on the record in this regard, however it was not
produced by the respondent-employer, hence it is submitted that
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
the Labour Court has precisely held the termination illegal. We do
not subscribe to the submission in the facts of the present case. The
Labour Court can draw adverse inference against the employer only
when the workman discharges his initial burden by pointing out the
specific name/s of any junior who is/are retained or any person or
workman who has been engaged after the termination of the
appellant. The workman has to make an assertion by naming
particular person who is junior to him and has been retained while
he was terminated. In absence of any such details, the Labour
Court has erred in holding the termination of the appellant-
workman in violation of the provisions of Sections 25G and 25H of
the Act. The findings of the Labour Court are very perfunctory on
this aspect.
6. With regard to the aspect of delay, it is noticed by us that for
all the intervening years, the workman has never tried to agitate his
termination in any forum or by any written communication made to
the respondent-Board and the dispute has never been kept alive.
At this stage, we may refer to the judgment of the Supreme Court
in the case of Prabhakar (supra):-
"
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
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
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 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
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
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 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 back
wages 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
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
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.
13. In present case, it has emerged that (a) the claimant was
engaged as daily wager; and (b) according to his own
allegation, he was not engaged after 31.3.1999; (c) he did not
take any action against present petitioner for almost 9 years;
and (d) then, suddenly in 2008, without offering any
explanation for such delay, the claimant raised dispute and
demanded that he should be reinstated in service.
14. The claimant tried to resurrect dispute which was dead
dispute for almost 8 years, that too without offering any
explanation.
14.1 The claimant failed to establish that during intervening 8
years, the dispute was alive and he was pursuing his claim
with the employer.
15. In absence of any material to establish that in the
interregnum the dispute was alive, the reference should not
have been entertained."
7. In the case before the Supreme Court, there was delay of 8
years and the workman had tried to resurrect the dispute after
almost 8 years and the Supreme Court has held that such a dispute
could not be entertained on the ground of delay. The Supreme
Court has clarified that in those cases where the Court finds that the
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 grant
reinstatement without back wages or lesser back wages or grant
compensation instead of reinstatement. However, despite our
suggestion made to the learned advocate for the appellant-
workman, no material is produced before us which would show that
for all these years, the dispute was kept alive and still existed. The
Supreme Court has further held that 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
NEUTRAL CITATION
C/LPA/1670/2024 ORDER DATED: 25/11/2024
undefined
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' and in such situation, even the appropriate
Government can refuse to make reference and a dispute which is
stale could not be the subject matter of reference under Section 10
of the Act.Thus, the present case is squarely covered by the
decision in the case of Prabhakar (supra) on which the learned
Single Judge has placed reliance. The judgment, on which the
reliance is placed by the learned advocate for the appellant in the
case of Raj Kumar (supra), will not rescue the appellant since in
the case before the Supreme Court, the issue of delay was neither
raised nor examined.
8. The judgement and order passed by the learned Single Judge
does not call for any interference. Hence, the present appeal fails
and is hereby rejected.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
Maulik/S2/3
