Gujarat High Court
Raghuvirsinh Harisinh Jadeja vs Chief Officer Morbi Nagar Palika on 26 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5096 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 5267 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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RAGHUVIRSINH HARISINH JADEJA
Versus
CHIEF OFFICER MORBI NAGAR PALIKA & ANR.
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 26/06/2025
COMMON ORAL JUDGMENT
1. Present petition is filed under Articles 226 and 227 of the
Constitution of India challenging the award passed by the
learned Labour Court in Reference (LCR) No.43 of 2016 rejecting
the reference filed by the present petitioner on the ground of
delay.
2. It is the case of the present petitioner that the petitioner
was appointed on the Post of Clerk on 16.11.1996 and his service
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was terminated on 22.07.1998. As per the claim of the petitioner
that at the time of termination of service, dispute seeking relief
of regularization was pending, however, without seeking any
approval from the respondent, had put to an end the service of
the petitioner, without following the mandatory provision of
Section 33(A) of the Industrial Disputes Act. Challenging the
order of termination passed in the year 1998, the reference came
to be filed in the year 2006, which was registered as a reference
LCR No.43 of 2006, petitioner had adduced the documentary
evidence on record in the nature of demand notice, the press
note suggesting the vacant post and the muster roll etc. As
against the same, respondent has also produced the
documentary evidence in addition to the evidence of chief
examination suggesting the payment of retrenchment
compensation and the notice. Learned reference Court, after
considering the arguments advanced by both the parties, has
concluded the reference against the present petitioner, which is
subject matter of challenge before this Court.
3. Heard learned advocate Mr. Mishra for the petitioner.
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4. Learned advocate Mr. Mishra has submitted that the
learned Labour Court has committed an error in dismissing the
reference on the ground of delay, as Section 5 of the Limitation
Act would not be applicable to the Labour laws. Learned
advocate Mr. Mishra submits that after terminating the service of
the petitioner, the work was carried out through out-source
agency and though petitioner has established the existence of
the work, learned Labour Court, instead of awarding the
reference in favour of the petitioner, has dismissed the same.
Learned advocate Mr. Mishra further submits that the witness of
the respondent, in his cross examination, admitted that there
were several vacant posts in the permanent set up of the Nagar
Palika and due to the expansion of the Nagar Palika, work was
also enhanced. Learned advocate Mr. Mishra submits that instead
of holding the dispute alive, learned Labour Court has concluded
the reference by holding the stale dispute and therefore, the
impugned order deserves to be interfered with.
4.1 Learned advocate Mr. Mishra submits that the identically
situated employees, namely, Jitendrabhai Bhugilal Raval whose
service was also terminated along with petitioner, was directed
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to be reinstated by the learned Reference Court in reference LCR
No.160 of 2012. Learned advocate Mr. Mishra submits that
several junior employees, who filed the reference challenging the
termination order, which was passed along with the petitioner,
has got the relief of reinstatement, however, learned Labour
Court has dismissed the reference on the ground of delay in the
case of present petitioner. Learned advocate Mr. Mishra submits
that after termination of the service, the petitioner has filed the
complaint I.T. No.24 of 1998, on rejection of the said complaint in
the year 2012, the reference was filed in the year 2016. Learned
advocate Mr. Mishra submitted that therefore, the findings
arrived by the learned Reference Court that there was a delay of
18 years is erroneous, as from the 2012, if one would be counted
delay up to 2016 then it comes to only four years, however,
learned Reference Court, has committed error in concluding
reference on the ground of delay against the present petitioner,
therefore, petition is required to be allowed and the order
passed by the learned Reference Court is required to be set
aside.
5. Having considered the arguments advanced by the learned
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advocate Mr. Mishra, on referring the reasons, it emerges that as
per the claim of the present petitioner, he was serving as a Clerk
from 16.11.1996 and getting the monthly wages of Rs.2850/- and
his service was terminated on 22.07.1998. Claiming the relief of
reinstatement, the reference came to be filed in the year 2016
i.e. on 09.06.2016. It is undisputed fact that petitioner had
worked only for one and half years and had filed the reference
after more than 18 years. For explaining the delay, the reasons
was offered by the present petitioner is with regard to the
pendency of the criminal complaint, which was dismissed in the
year 2012. Even if this is accepted for the sake of acceptance
then also it is the unexplained delay of four years which suggests
stale dispute as described by the Hon'ble Apex Court in the case
of Prabhakar Vs Joint Director Sericulture Department and Ors.
reported in 2015 15 SCC 1.
5.1. In addition to that, it is alleged that there is breach of
Section 25(F) of the Industrial Dispute Act. If one would refer the
provision of Section 25(F), then it requires one month notice in
writing or has to pay notice pay as well as the retrenchment
compensation, which would be equivalent to 15 days average
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pay, is required to be paid to the retrench employee. It is
undisputed fact that at the time of retrenchment, the payment
was offered of one month notice pay as well as the compensation
and the cheque was sent, however, it was refused to accept by
the petitioner and the envelop was produced below Mark 22/3.
During the cross examination, it is admitted by the present
petitioner that the address mentioned on the envelop is the
same address where the petitioner is residing.
5.2 At this stage, this Court has referred the decision rendered
by the Hon'ble Apex Court in the case of Pramod Jha v. State of
Bihar reported in (2003) 4 SCC 619 wherein the Hon'ble Apex
Court has held para 15 as under;
"15. In Sain Steel Products [AIR 2001 SC 2401 : (2003) 4
SCC at p. 628, below] which is a two-Judge Bench decision
of this Court, the worker was informed "to collect what is
due to him" without spelling out whether or not it included
the amount as contemplated under Section 25-F. It was in
such peculiar facts and circumstances of the case that this
Court refused to accept the offer in the terms in which it
was made and quoted hereinabove as amounting to
making an offer in terms of Section 25-F of the Act. Both
the Labour Court and the High Court had recorded a
finding of fact that Section 25-F(b) was not complied with.
Sain Steel Products case [AIR 2001 SC 2401 : (2003) 4 SCC
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at p. 628, below] is clearly distinguishable and has no
application to the facts of the present case."
5.3 This Court is of the view that there is bona-fide endeavour
on the part of the employer to pay the retrenchment benefits
along with the order of retrenchment, but workman avoids
acceptance of the same with a view to invalidate the order of
retrenchment. Therefore, the same can be treated as a sufficient
compliance with Section 25-F of the Act.
5.4 In addition to that, the petitioner had also alleged the
breach of Section 25 (G) and (H) by claiming that after
termination of the present petitioner, the press note was issued,
produced below Mark 10/2 calling the candidates for the posts of
Head Clerk, Senior Clerk, Accountant and Auditor. On receiving
or on knowing the said advertisement, it is undisputed fact that
petitioner did not apply for the said post, neither has produced
any documentary evidence that any particular employee was
continued who is junior to the present petitioner. Though in the
memo of the petition, the petitioner referred the certain names,
however, that name was not stated before the learned Labour
Court. Therefore, in absence of any pleadings, the learned
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Reference Court has not adjudicated on the said aspect. The
contention raised by the learned advocate Mr. Mishra that
Section 5 of the Limitation Act would not be applicable in the
Labour Laws, in that regard this Court has referred the decision
rendered by the Hon'ble Apex Court in the case of Shalimar
Works Limited V/s. Workmen reported in AIR 1959 SC 1217,
wherein this Court has held para No.13 as under;
"There is no doubt that strictly speaking the order of the
company discharging its workmen on April 6, 1948, when a
dispute was admittedly pending was a breach of s. 33; (see
Punjab National Bank Ltd. v. Employees of the Bank,(1)). The
remedy for such a, breach is provided in s. 33-A and it can be
availed of by an individual workman. If therefore it was felt by
the workmen who were discharged on April 6, 1948, that there
was breach of s. 33 by the company, they should have applied
individually or collectively to the tribunal under s. 33-A. None
of them did this. It is true that some kind of letter was written
to the Assistant Labour Commissioner in November, 1949, but
that was also very late and nothing seems to have happened
thereafter for almost another three years, till the first
reference was made on October 7, 1952. It is true that there is
no limitation prescribed for reference of disputes to an
industrial tribunal; even so it is only reasonable that disputes
should be referred as soon as possible after they have arisen
and after conciliation proceedings have failed, particularly so
when disputes relate to discharge of workmen wholesale, as in
this case. The industry has to carry on and if for any, reason
there has been a wholesale discharge of workmen and closure
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of the industry followed by its reopening and fresh recruitment
of labour, it is necessary that a dispute regarding
reinstatement of a large number of workmen should be
referred for adjudication within a reasonable time. We are of
opinion that in this particular case the dispute was not
referred for adjudication within a reasonable time as it was
sent to the Industrial Tribunal more than four years after even
reemployment of most of the old workmen. We have also
pointed out that it was open to the workmen themselves even
individually to apply under s. 33-A in this case; but neither that
was done by the workmen nor was the matter referred for
adjudication within a reasonable time. In these circumstances,
we are of opinion that the tribunal would be justified in
refusing the relief of reinstatement to avoid dislocation of the
industry and that is the correct order to make. In addition, the
reference in this case was vague inasmuch as the names of 250
workmen to be reinstated were not sent to the Industrial
Tribunal and no list of these men was given to it till practically
after the whole proceeding was over. Even the list then
supplied was so bad that the Industrial Tribunal did not think it
worthwhile to act upon it, and directed the company to give a
notice to the strikers to ask for re- employment within a
certain time. This the company had already done on July 5,
1948. That notice had gained con- siderable publicity, for the
majority of the workmen did appear thereafter for re-
employment by July 21. In the circumstances there was no
reason for ordering reinstatement of any one on such a vague
reference after such an unreasonable length of time. The
defect, in the order-of discharge of April 6, due to permission
not having been obtained under s. 33 can in the circumstances
of this case be ignored on the ground that the workmen who
did not rejoin in July 1948, were not interested in
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reinstatement: firstly, on account of the circumstances in
which that order came to be made after an illegal and
unjustified sit-down strike, secondly, because the workmen in
their turn did not avail themselves of the remedy under s. 33-A
which. was open to them, and thirdly, because the reference
was made after an unreasonable length of time and in a vague
manner. We are therefore of opinion that the Appellate
Tribunal should not have ordered the reinstatement of even
the fifteen workmen in the circumstances as their case was
exactly the same as the case of the hundred workmen, except
in the matter of the withdrawal of the provident fund."
6. Considering the above ratio as well as the facts involved in
the present case, this Court is of the view that for the service of
less than two years, the dispute raised after more than 18 years
would be a stale dispute and learned Reference Court is
justifying in dismissing the reference on the ground of delay.
7. In above view, these petitions deserve to be dismissed.
8. Resultantly, these petitions are dismissed.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
