[Cites 13, Cited by 0]
Gujarat High Court
Manubhai Babubhai Kumbhar vs Bagasara Nagar Palika on 3 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3364 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
No
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MANUBHAI BABUBHAI KUMBHAR
Versus
BAGASARA NAGAR PALIKA & ANR.
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Appearance:
DEVANGI B SOLANKI(8888) for the Petitioner(s) No. 1
MR MB PARIKH(576) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 03/12/2025
ORAL JUDGMENT
1. Present petition is filed by the workman under Articles
226 and 227 of the Constitution of India read with the
provisions of the Industrial Disputes Act [hereinafter be
referred to as "the ID Act"] challenging the impugned award
dated 16.10.2019 passed by the Industrial Court, Bhavnagar
in Reference (IT) No.33 of 2007 whereby the Industrial Court
has dismissed the said reference qua petitioner.
2. Short facts of the present case are that the petitioner
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has been serving as Safai Worker since 01-08-1994 after
being legally recruited. Though he perform permanent and
continuous duties identical to permanent employees, he is
treated as daily-rated staff and paid only minimum wages.
This amounts to unfair labour practice and violation of
Articles 14 and 16. Junior employees have been regularised
and vacant posts exist. In this regard reference came to be
filed before the Industrial Court being Reference (IT) No.33 of
2007 which came to be rejected qua present petitioner by the
Industrial Court vide order dated 16.10.2019.
3. Being aggrieved and dissatisfied with the impugned
award, the petitioner has preferred the present petition.
4. Heard Ms. Devengi B. Solanki, learned counsel for the
petitioner and Mr.Parikh, learned counsel for the respondent.
Perused the material placed on record.
5. Ms.Solanki, learned counsel for the petitioner has
submitted the same facts which are narrated in the memo of
petition and has also submitted that the impugned award
passed by the Industrial Court is unjust, improper, illegal and
contrary to the settled provisions of law, and therefore, is
required to be quashed and set aside. She has also submitted
that the Industrial Court has failed to appreciate the oral as
well as documentary evidence of the petitioner in its true
spirit. she has submitted that the petitioner has been
continuously serving with the respondent as Safai Workman
since 01.08.1994 after being duly selected through a lawful
recruitment process. She has submitted that though petitioner
discharge permanent and regular duties identical to those
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performed by permanent employees, he is unjustly treated as
daily-rated worker and is paid only minimum wages. She has
submitted that present petition may be allowed and the
impugned judgment and award passed by the Industrial
Court, so as as the petitioner is concerned, may be quashed
and set aside.
5.1 Ms. Solanki, learned counsel for the petitioner has
submitted that the findings recorded by the Industrial Court
that the petiioner was not appointed by adopting due
procedure of recruitment is erroneous. She has submitted that
the Industrial Court ought to have considered cross
examination of the witness of the respondent wherein, she has
admitted that the petitioner is in service since 1994. She has
submitted that in the aforesaid circumstances, the impugned
award is unsustainable in the eye of law and deserves to be
quashed and set aside.
6. On the other hand, Mr, Parikh, learned counsel for the
respondent has submitted that the Industrial Court has not
committed any error in passing the impugned judgment and
award. He has submitted that workman was never appointed
through any regular or sanctioned recruitment process. He
has submitted that the engagement of the workman was
purely on a daily-rated, temporary and need-based basis,
without following any statutory procedure for creation of
posts, advertisement, selection or approval from the
competent authority. He has submitted that the workman has
not completed the required number of days under law to claim
continuity or permanency. He has submitted that even the
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workman has raised the industrial dispute after period of
almost 12 years and therefore, present petition may not be
entertained and the same may be dismissed and the impugned
order passed by the Industrial Court may be confirmed.
7. Having considered the submissions made by learned
counsel appearing for the respective parties and perused the
impugned award passed by the Industrial Court. It emerges
from the record that the Industrial Court has dismissed the
reference. On perusal of the impugned award, it appears that
the Industrial Court has not committed any error while
passing the impugned award. It also appears from the record
that the petitioner has raised industrial dispute after almost
12 years of his service and even during the pendency of the
reference, the petitioner has not taken any proper care to
produce relevant material on record before the Industrial
Court. Under such circumstances, it appears that after relying
upon the decisions of this Court in the case of (1) Bhavnagar
Municipal Corporation Vs. Arvindbhai Ravjibhai Naiya
reported in 2024 LawSuit(Guj) 1142, (2) Dhulabhai
Somabhai Damor Vs. Deputy Executive Engineer
reported in 2024 LawSuit(Guj) 2368 and (3) Kamdar Hit
Rakshak Union through President Vs. Deputy Director
of Traffic Manager reported in 2024 LawSuit(Guj) 2842
and considering the relevant fact of the case, the Industrial
Court has rightly passed the impugned award. In fact, the
Hon'ble Supreme 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 this
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long period without any explanation cannot be considered by
the Court.
8. The relevant observations of the decision of the Hon'ble
Supreme Court in the case of Prabhakar (supra) reads 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 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
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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 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.
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
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the aforesaid perspective in such matters.
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.
On the application of the aforesaid principle to the facts of the
present case, we are of the view that High Court correctly decided
the issue holding that the reference at such a belated stage i.e.
after fourteen years of termination without any justifiable
explanation for delay, the appropriate Government had not
jurisdiction or power to make reference of a non-existing dispute."
9. Considering the decision of the Hon'ble Supreme Court
in the case of Prabhakar (supra) and the decisions of this
Court in the aforesaid cases, no case is made out to entertain
the present petition and the same being meritless deserves to
be dismissed.
10. In view of the aforesaid facts and circumstances of the
case and the decisions, the petition stands dismissed. The
impugned award passed by the Industrial Court is hereby
confirmed, qua present petitioner. There shall be no order as
to costs.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
