Gujarat High Court
Mansukhbhai Akhmabhai Khant vs Deputy Executive Engineer on 7 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
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C/LPA/550/2025 ORDER DATED: 07/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 550 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 4540 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 550 of 2025
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MANSUKHBHAI AKHMABHAI KHANT
Versus
DEPUTY EXECUTIVE ENGINEER
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Appearance:
SWAPNESHWAR GOUTAM(9051) for the Appellant(s) No. 1
MS. SHRUTI DHRUVE, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 07/04/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the order dated
09.07.2024 passed in the captioned Writ Petition being Special Civil
Application No.4540 of 2024 filed by the present appellant-original
petitioner, whereby the learned Single Judge has rejected the Writ
Petition.
2. At the outset, learned advocate Mr.Swapneshwar Goutam
appearing for the appellant has submitted that the learned Single
Judge has fell in error in rejecting the Writ Petition assailing the award
dated 04.01.2023 passed by the Labour Court, Godhra in Reference (T)
No.102 of 2008 on the ground of delay. He submitted that the Labour
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Court as well as the learned Single Judge have failed to appreciate the
facts in its true perspective and have erred in rejecting the Reference
proceedings as well as the Writ Petition 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. It
is submitted that initially, the appellant was working as a Watchman
and was appointed in the year 1984 and was terminated in the year
1985, and the dispute culminated into Reference (LCV) No.998 of
1986, which was dismissed for default in the year 1987 and thereafter,
Hon'ble the Chief Minister has directed the Irrigation Department to
consider the case of the appellant for illegal termination in the year
2002 and ultimately, he raised a fresh dispute, which culminated into
Reference (T) No.102 of 2008. It is submitted that the advocate, who
was appearing in the proceedings had passed away. Thus, it is
submitted that it cannot be said that the dispute was not kept alive by
the appellant and hence, the Reference proceedings could not have
been rejected on the ground of delay.
3. Per contra, Ms. Shruti Dhruve, learned AGP has submitted that
the impugned order may not be interfered with as the appellant has
remained negligent in pursuing his grievance. It is submitted that
initially, Reference was dismissed for default in the year 1987 and the
appellant did not do anything for all these years and ultimately, raised
another dispute, which culminated into Reference proceedings being
Reference (T) No. 102 of 2008, which has been precisely rejected by
the Labour Court by placing reliance on the judgment in the case of
Prabhakar (supra). The learned AGP has also placed reliance on the
recent judgment of the Supreme Court dated 21.11.2024 in the case
of Rajneesh Kumar & Anr. reported in 2024 INSC 891 and it was
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submitted that it was necessary for the appellant to pursue his
Reference proceedings and he cannot blame the advocate who was
appearing on his behalf. It is submitted that the learned Single Judge
has also precisely confirmed the award and hence, it is urged that the
present appeal may not be entertained.
4. We have heard the learned advocates appearing for the
respective parties in the captioned Writ Petition. The appellant has
assailed his termination before the Labour Court, and vide award
dated 04.01.2023 passed by the Labour Court, Godhra in Reference (T)
No. 102 of 2008, the reference was rejected. It is the case of the
appellant that he was appointed as a Watchman on monthly pay of
Rs.14.50 on 25.01.1982 and his services came to be terminated on
30.04.1985. The said termination culminated into Reference
proceedings being Reference (LCV) No.998 of 1986, which was
dismissed for default on 22.04.1987. Thereafter, the appellant went
into slumber. It appears that he made an application before the office
of Hon'ble the Chief Minister, which directed the Irrigation
Department to consider the case of the appellant for illegal
termination on 15.12.2002. Thus, instead of getting the Reference
proceedings restored to its original file, after a period of almost 15
years, he obtained a recommendation from the office of Hon'ble the
Chief Minister. His remissness does not end here. After a period of 6
years, he again raised a dispute, which culminated into Reference (T)
No. 102 of 2008, which has been rejected by the aforesaid award,
which was subject matter of Writ Petition. The Labour Court has
categorically observed all these facts and the conduct of the appellant
in pursuing the industrial dispute. The Labour Court, after placing
reliance on the judgment in the case of Prabhakar (supra), has rejected
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the proceedings on the ground of delay. Thus, from overall facts which
are established from the record and also not denied by the appellant,
it is manifest that, he has remained negligent in pursuing his remedy.
5. It is not in dispute that the dismissal of the Reference
proceedings in the year 1987 was not within the knowledge of the
appellant. He did not do anything in order to restore the same and
again in the year 2008, on the very same industrial dispute, he
approached the Labour Commissioner.
6. The learned Single Judge in Paragraph Nos.7, 8 and 9 has
observed thus:-
"7. It is also required to be noted herein that without
restoring the said references, the petitioners have
preferred subsequent references for the very prayer in
2008 i.e. almost after 23 years from the date of
termination of service and this fact is very glaring and
for that there was no explanation rendered by the
petitioners. Except that they were not aware with the
earlier references which came to be dismissed and the
said fact was not within the knowledge of the
petitioners. The said explanation is not tenable in the
eye of law and even it is not tenable or digestible that
the petitioners were not aware, the earlier award came
to be dismissed for want of prosecution. Even for a while
if we consider that it was not within the knowledge of
the petitioners, then also present reference was filed
almost after 23 years of the termination and now
almost 40 years have been passed therefore, present
petitions filed by the petitioners dehors the settled legal
pronouncement and against the principle laid down by
the Hon'ble Apex Court in the above referred decisions.
8. 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
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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
9. Hon'ble Apex Court in case of Prabhakar (supra) 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."
7. The Supreme Court in the case of Prabhakar (supra) has
observed thus:-
"40. On the basis of aforesaid discussion, we summarise
the legal position as under:
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
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industrial dispute, discussion that follows would confine
to existence of an industrial dispute. 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.
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. 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
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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.
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. 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."
8. Thus, the Apex Court has held that 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 and the workman has to give satisfactory explanation for these
laches and delays and demonstrate that the circumstances discloses
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that issue is still alive, delay would not come in his way because of the
reason that law of limitation has no application. It is also held by the
Apex Court that , 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. The Apex Court has referred to
illustration, that in a given case where the workman issues notice after
his termination, questioning the termination and demanding
reinstatement, and 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 given of
taking 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. In the present
case, there are no efforts are made by the appellant-workman to
approach the respondent, and keep the dispute alive.
9. In the case of Rajneesh Kumar (supra), the Supreme Court has
categorically held that even if it is assumed that the concerned lawyer
is careless or negligent, then this by itself cannot be a ground to
condone long and inordinate delay as the litigant owes a duty to be
vigilant of his own rights and is expected to be equally vigilant about
the judicial proceedings pending in the Court at his instance. In the
present case, it is noticed by us that the appellant is negligent in
pursuing the proceedings and did not care for all these years to get
the Reference proceedings restored and on the contrary, raised
another dispute, which was registered as Reference (T) No. 102 of
2008 and hence, we do not find any infirmity or illegality either in the
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order passed by the Labour Court or the order passed by the learned
Single Judge.
10. Hence, the present appeal fails and the same is hereby rejected.
As a sequel, the connected Civil Application also stands disposed of.
(A. S. SUPEHIA, J)
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA/S.B.-1
