Jharkhand High Court
Mahadeo Gorain vs Union Of India Represented ... on 13 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No.3062 of 2013
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Mahadeo Gorain ... ... ... Petitioner
-Versus-
1. Union of India represented through the Secretary, Ministry of Labour,
Government of India.
2. Regional Labour Commissioner (Central), Shram Bhawan, New Colony,
Dhanbad.
3. Bokaro Steel Plant, Bokaro Steel City Administrative Building, Bokaro City,
Bokaro.
... ... ...Respondents
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CORAM :THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
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For the petitioner : Mr. Sanjay Prasad, Advocate.
For the Respondents : Mr. Vijay Kant Dubey, Advocate
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08/13.01.2021 In view of outbreak of COVID-19 pandemic, case has been taken up
through Video Conferencing. Concerned lawyers have no objection with regard
to the proceeding, which has been held through Video Conferencing today at
10:30 a.m. onward. They have no complaint in respect to the audio and video
clarity and quality.
2. The petitioner has approached this Court for quashing of the order dated
08.05.2012, passed by Under Secretary, Ministry of Labour, Government of
India, whereby and whereunder, the Industrial Disputes regarding dismissal of
petitioner from service has been denied to be referred for adjudication in
exercise of jurisdiction under Section 12(5) of the Industrial Disputes Act.
3. The facts of the case in short is that petitioner was a displaced person and
as such he joined his service on 06.02.2000 to the post of Khalasi, having his
Employee No. 764705. The said post of Khalasi is reserved for displaced
persons. Due to his severe illness, petitioner was under treatment and could not
attend his duties. However, without considering aforesaid fact, respondent no. 3,
by issuance of an ex-parte order no. Pers/ ESH/ Plaint/ 2002 - 1292, dated
27.06.2002, dismissed the petitioner from the service. Being aggrieved,
petitioner raised an Industrial Dispute through the Labour Union i.e. Rashtriya
Ispat Mazdoor Sangh and a case vide 2(18) 2011/ E-1 was registered and notice
was issued to the respondent no. 3 under Section 22(1)(d) and 22(2)(d) and
Section 33 of the Industrial Disputes Act. Thereafter, conciliation proceeding
was initiated but the same could not reach to bring out settlement between the
parties and the same ended in failure and as such, the failure report was sent to
the appropriate authority for referring the dispute for adjudication in proper
forum. Thereafter, the Under Secretary, Ministry of Labour, Government of
India, issued a letter dated 08.05.2012, whereby and whereunder the issue
relating to limitation was decided and the dispute had been denied to be referred
to appropriate forum for adjudication. Being aggrieved, petitioner has knocked
door of this Court.
4. Assailing the impugned order, Mr. Sanjay Prasad, learned Counsel
appearing for the petitioner vociferously argues that the same is illegal and liable
to be quashed and set aside and the petitioner is entitled to be reinstated in
service with all consequential benefits. Learned counsel further argues that the
impugned order denying referral of case of the petitioner for adjudication in
exercise of jurisdiction under Section 12(5) of the Industrial Disputes Act is
illegal, disproportionate and not in accordance with law. Petitioner should not
have been denied his rights to place his case. Learned counsel further argues that
petitioner was not given any opportunity for placing his case and the same has
been denied on the ground of limitation. Neither any enquiry was conducted nor
any opportunity of hearing was given to the petitioner. While hearing the
impugned order is liable to be quashed and set aside on the ground that the issue
relating to limitation is to be decided by affording opportunity of hearing to
parties and by way of judicial exercise of power. The issue relating to limitation
is an issue in respect of industrial disputes to be heard and decided by the
competent court of law and the same could not have been decided by the Under
Secretary, Ministry of Labour, Government of India. The impugned order has
been passed in a mechanical manner without application of mind. The order of
dismissal from service has serious civil consequences and as such, the same
could not have been decided in arbitrary manner.
5. To buttress his arguments, learned counsel for the petitioner places heavy
reliance on the following judgments:
(I) Himachal Pradesh State Electricity Board Ltd. Vs. Mahesh
Dahiya [(2017) 1 SCC 768];
(II) Prabhu Dayal Vs. State of Jharkhand & Ors. [ 2020 (1) JLJR
180];
6. Per contra, counter-affidavit has not been filed by respondents.
Mr. Vijay Kant Dubey, learned counsel appearing for the respondent
vehemently opposes contention of the learned counsel for the petitioner and
argues that petitioner has rightly been dismissed from the service and impugned
order is fully justified. No interference is called for in the instant writ petition.
Denying the submission of the petitioner, learned counsel submits that dispute
has been raised after more than nine years without any justification and as such,
the same is fit to be dismissed..
7. To buttress his arguments, learned senior counsel appearing for the
respondents places heavy reliance on the following judgments:
(I) Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors. [(2000) 2 SCC
455];
(II) Prabhakar Vs. Joint Director, Sericulture Department & Anr. [(2015)
1 SCC 1];
(III) Om Prakash Mann Vs. Director of Education (Basic) & Ors. [(2006) 7
SCC 558];
(IV) Haryana Financial Corp. & Anr. Vs. Kailash Chandra Ahuja [(2008)
9 SCC 31];
(V) Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh [(2006) 6 SCC
187];
(VI) Judgment dated 30.09.2020, passed in W.P.(L) No. 6995 of 2012.
8. Be that as it may, after hearing counsel for the parties at length and from
perusal of the documents brought on record and the judgments relied upon by the
respective parties, this Court is of the opinion that admittedly, there has been
unexplained delay and laches on the part of the petitioner. The reference has
been made by the appropriate authority after lapse of more than nine years.
Hence, it can comfortably be said that the present reference is stale one and the
present dispute has lost its significance and as on date, no dispute is in existence.
Even the domestic enquiry conducted against the petitioner was held to be fair
and proper.
9. The issue fell for consideration before the Hon'ble Apex Court in case of
Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors., reported in (2000) 2
SCC 455, wherein the Hon'ble Court has held as under:
"6. Law does not prescribe any time limit for the
appropriate government to exercise its powers under Section
10 of the Act It is not that this power can be exercised at any
point of time and to revive matters which had since been
settled Power is to be exercised reasonably and in a rational
manner. There appears to us to be no rational basis on which
the Central Government has exercised powers in this case
after lapse of about seven years of order dismissing the
respondent from service. At the time reference was made no
industrial dispute existed or could be even said to have been
apprehended. A dispute which is stale could not be the
subject-matter of reference under Section 10 of the Act. As to
when a dispute can be said to be stale would depend on the
facts and circumstances of each case. When the matter has
become final, it appears to us to be rather incongruous that
the reference be made under Section 10 of the Act in the
circumstances like the present one. In fact it could be said
that there was no dispute pending at the time When the
reference in question was made. The only ground advanced
by the respondent was that two other employees who were
dismissed from service were reinstated. Under what
circumstances they were dismissed and subsequently
reinstated is nowhere mentioned. Demand raised by the
respondent for raising industrial dispute was ex facie bad and
incompetent.
7. In the present appeal it is not the case of the
respondent that the disciplinary proceedings, which resulted
in his dismissal, were in any way illegal or there was even
any irregularity. He availed his remedy of appeal under the
rules governing his conditions of service. It could not be said
that in the circumstances industrial dispute did arise or was
even apprehended after lapse of about seven years of the
dismissal of the respondent. Whenever a workman raises
some dispute it does not become industrial dispute and
appropriate government cannot in a mechanical fashion make
the reference of the alleged dispute terming as industrial
dispute. Central Government lacked power to make reference
both on the ground of delay in invoking the power
under section 10 of the Act and there being no industrial
dispute existing or even apprehended. The pur-pose of
reference is to keep industrial peace in an establishment. The
present reference is destructive to the industrial peace and
defeats the very object and purpose of the Act. Bank was
justified in thus moving the High Court seeking an order to
quash the reference in question."
Further, the Hon'ble Apex Court in case of Prabhakar Vs. Joint
Director, Sericulture Department & Anr., reported in (2015) 15 SCC 1, has
held as under:
"8. From the facts narrated above, it becomes clear that
for a period of fourteen years no grievance was made by the
petitioner qua his alleged termination. Though it was averred
that the petitioner had approached the Management time and
again and was given assurance that he would be taken back
in service, there is nothing on record to substantiate this. No
notice was served upon the Management. There is no
assurance given in writing by the Management at any point of
time. Such assertions are clearly self-serving. Pertinently,
even the Labour Court has not accepted the aforesaid
explanation anywhere and has gone by the fact that the
dispute was raised after a delay of fourteen years. Therefore,
keeping in mind the aforesaid facts, we would decide the issue
which has arisen, namely, whether reference of such a
belated claim was appropriate.
.......
.......
21. On the reading of these judgments, which are
discussed hereinafter, it can be discerned that in some
decisions where the reference was made after a lapse of
considerable period, the Court did not set aside the reference
but moulded the relief by either granting reinstatement but
denying back wages, fully or partially, or else granted
compensation, denying reinstatement. On the other hand, in
some of the decisions, the Court held that even when there
was no time prescribed to exercise power under Section 10 of
the Act, such a power could not be exercised at any point of
time to revive matters which had since been settled or had to
become stale. We would like to refer to these judgments at
this juncture.
22. As early as in 1959, this Court in the case of Shalimar
Works Ltd. v. Their Workmen ((1960) 1 SCR 150) pointed out
that there is no limitation prescribed in making a reference of
disputes to Industrial Tribunal under Section 10(1) of the Act.
At the same time, the Court also remarked that the dispute
should be referred as soon as possible after they have arisen
and after conciliation proceedings have failed. In that case,
reference was made after four year of dispute having arisen.
In these circumstances, this Court held that relief of
reinstatement should not be given to the discharged workmen
in such a belated and vague reference.
23. Again, in Western India Match Company Ltd.6, though
upholding the reference of dispute made nearly six years after
the previous refusal to make the reference, the Court
observed that in exercising its discretion to make reference,
the Government will take into consideration the time which
had lapsed between its earlier decision and the date when it
decides to reconsider it in the interest of justice and industrial
peace. Following observations from this judgment need to be
noticed for the purposes of the present case:
'8. From the words used in Section 4(k) of the Act
there can be no doubt that the Legislature has left the
question of making or refusing to make a reference
for adjudication to the discretion of the Government.
But the discretion is neither unfettered nor arbitrary
for the section clearly provides that there must exist
an industrial dispute as defined by the Act or such a
dispute must be apprehended when the Government
decides to refer it for adjudication. No reference thus
can be made unless at the time when the Government
decides to make it an industrial dispute between the
employer and his employees either exists or is
apprehended. Therefore, the expression 'at any time',
though seemingly without any limits, is governed by
the context in which it appears. Ordinarily, the
question of making a reference would arise after
conciliation proceedings have been gone through
and the conciliation officer has made a failure
report. But the Government need not wait until such
a procedure has been completed. In an urgent case,
it can 'at any time', i.e., even when such proceedings
have not begun or are still pending, decide to refer
the dispute for adjudication. The expression 'at any
time' thus takes in such cases as where the
Government decides to make a reference without
waiting for conciliation proceedings to begin or to be
completed. As already stated, the expression 'at any
time' in the context in which it is used postulates that
a reference can only be made if an industrial dispute
exists or is apprehended. No reference is
contemplated by the section when the dispute is not
an industrial dispute, or even if it is so, it no longer
exists or is not apprehended, for instance, where it is
already adjudicated or in respect of which there is
an agreement or a settlement between the parties or
where the industry in question is no longer in
existence.
xx xx xx
13. It is true that where a Government reconsiders its
previous decision and decides to make the reference,
such a decision might cause inconvenience to the
employer because the employer in the meantime
might have acted on the belief that there would be no
proceedings by way of adjudication of the dispute
between him and his workmen. Such a consideration
would, we should think, be taken into account by the
Government whenever, in exercise of its discretion, it
decides to reopen its previous decision as also the
time which has lapsed between its earlier decision
and the date when it decides to reconsider it. These
are matters which the Government would have to
take into account while deciding whether it should
reopen its former decision in the interest of justice
and industrial peace but have nothing to do with its
jurisdiction under Section 4(k) of the Act. Whether
the intervening period may be short or long would
necessarily depend upon the facts and circumstances
of each case, and therefore, in construing the
expression 'at any time' in Section 4(k) it would be
impossible to lay down any limits to it."
The Hon'ble Apex Court in case of Shalimar Works Ltd. Vs. Workmen
[AIR 1959 SC 1217], pointed-out that there is no limitation prescribed in
making a reference of disputes to the Industrial Tribunal under Section 10(1) of
the Act. At the same time, the Court also remarked that the dispute should be
referred as soon as possible after they have arisen and after conciliation
proceedings have failed. In that case, reference was made after four years of
dispute having arisen.
10. The other submissions of learned counsel for the petitioner regarding non-
supply of copy of the enquiry report, it would be apposite to mention here that
merely because there is a right to receive the copy of enquiry report and if the
same has not been supplied, the entire proceeding cannot be said to be vitiated.
In this regard reference can be had to the judgment passed by Hon'ble
Apex Court in case of Om Prakash Mann Vs. Director of Education (Basic)
& Ors., reported in (2006) 7 SCC 558. The relevant paragraphs of the said
judgment is quoted herein below:
"8. The second ground that no copy of the enquiry report
had been furnished to the appellant thereby violated the
principle of natural justice has also no substance. On this
ground the learned Judge recorded a finding that the
appellant was unable to show as to how he has been
prejudiced for non-furnishing of the copy of the report. We
agree with the finding of the learned Judge of the High Court.
9. By now it is well settled principle of law that doctrines
of principle of natural justice are not embodied Rule. They
cannot be applied in a straightjacket formula. To sustain the
complaint of violation of the principle of natural justice one
must establish that he has been prejudiced by non-observance
of principle of natural justice. As held by the High Court the
appellant has not been able to show as to how he has been
prejudiced by non-furnishing of the copy of the enquiry
report. The appellant has filed a detail appeal before
Appellate Authority which was dismissed as noticed above. It
is not his case that he has been deprived of making effective
appeal for non-furnishing of copy of enquiry report. He has
participated in the enquiry proceedings without any demur. It
is undisputed that the appellant has been afforded enough
opportunity and he has participated throughout the enquiry
proceedings, he has been heard and allowed to make
submission before the enquiry Committee."
Further, in case of Haryana Financial Corporation & Anr. Vs. Kailas
Chandra Ahuja, reported in (2008) 9 SCC 31, the Hon'ble Court has held as
under:
18. So far as the supply of report of the Inquiry Officer is
concerned, it was held by the Constitution Bench that the
delinquent employee had a right to receive the Inquiry
Officer's report and a denial thereof would constitute breach
of natural justice. Speaking for the majority, Sawant J.
stated: [ECIL V. B. Karunakar (1993) 4 SCC 727]
"29. Hence it has to be held that when the enquiry
officer is not the disciplinary authority, the
delinquent employee has a right to receive a copy
of the enquiry officer's report before the
disciplinary authority arrives at its conclusions
with regard to the guilt or innocence of the
employee with regard to the charges levelled
against him. That right is a part of the employee's
right to defend himself against the charges levelled
against him. A denial of the enquiry officer's report
before the disciplinary authority takes its decision
on the charges, is a denial of reasonable
opportunity to the employee to prove his innocence
and is a breach of the principles of natural justice".
(emphasis supplied)
19. The Court then considered the effect of non-supply of
Inquiry Officer's report on the delinquent. The majority
stated: [B.Karunakar case (supra)]
"30. (v) The next question to be answered is what is
the effect on the order of punishment when the
report of the enquiry officer is not furnished to the
employee and what relief should be granted to him
in such cases. The answer to this question has to be
relative to the punishment awarded. When the
employee is dismissed or removed from service and
the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing
of the report may have prejudiced him gravely
while in other cases it may have made no difference
to the ultimate punishment awarded to him. Hence
to direct reinstatement of the employee with back-
wages in all cases is to reduce the rules of justice
to a mechanical ritual. The theory of reasonable
opportunity and the principles of natural justice
have been evolved to uphold the rule of law and to
assist the individual to vindicate his just rights.
They are not incantations to be invoked nor rites to
be performed on all and sundry occasions. Whether
in fact, prejudice has been caused to the employee
or not on account of the denial to him of the report,
has to be considered on the facts and
circumstances of each case. Where, therefore, even
after the furnishing of the report, no different
consequence would have followed, it would be a
perversion of justice to permit the employee to
resume duty and to get all the consequential
benefits. It amounts to rewarding the dishonest and
the guilty and thus to stretching the concept of
justice to illogical and exasperating limits. It
amounts to an `unnatural expansion of natural
justice' which in itself is antithetical to justice".
(emphasis supplied)
20. Holding that it was incumbent on the delinquent
employee to show prejudice, the majority held that non-
supply of report of the Inquiry Officer to the delinquent
employee would not by itself make the order of punishment
null and void or non est. The majority concluded: [B.
Karunakar's case (supra)]
"31. Hence, in all cases where the enquiry
officer's report is not furnished to the delinquent
employee in the disciplinary proceedings, the
Courts and Tribunals should cause the copy of the
report to be furnished to the aggrieved employee if
he has not already secured it before coming to the
Court/Tribunal and give the employee an
opportunity to show how his or her case was
prejudiced because of the non-supply of the
report. If after hearing the parties, the
Court/Tribunal comes to the conclusion that the
non-supply of the report would have made no
difference to the ultimate findings and the
punishment given, the Court/Tribunal should not
interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside
the order of punishment on the ground that the
report was not furnished as is regrettably being
done at present. The courts should avoid resorting
to short cuts. Since it is the Courts/Tribunals
which will apply their judicial mind to the
question and give their reasons for setting aside or
not setting aside the order of punishment, (and not
any internal appellate or revisional authority),
there would be neither a breach of the principles
of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds
that the furnishing of the report would have made
a difference to the result in the case that it should
set aside the order of punishment".
(emphasis supplied)
21. From the ratio laid down in B. Karunakar's case
(supra), it is explicitly clear that the doctrine of natural
justice requires supply of a copy of the Inquiry Officer's
report to the delinquent if such Inquiry Officer is other than
the Disciplinary Authority. It is also clear that non-supply of
report of Inquiry Officer is in the breach of natural justice.
But it is equally clear that failure to supply a report of
Inquiry Officer to the delinquent employee would not ipso
facto result in proceedings being declared null and void and
order of punishment non est and ineffective. It is for the
delinquent-employee to plead and prove that non-supply of
such report had caused prejudice and resulted in
miscarriage of justice. If he is unable to satisfy the Court on
that point, the order of punishment cannot automatically be
set aside.
......
.......
24. In our considered view, the High Court was wrong in
making the above observation and virtually in ignoring the
ratio of B. Karunakar that prejudice should be shown by
the delinquent. To repeat, in B. Karunakar, this Court
stated;
"30 (v) ......Whether in fact, prejudice has been
caused to the employee or not on account of the
denial to him of the report, has to be considered on
the facts and circumstances of each case".
......
.......
36. The recent trend, however, is of `prejudice'. Even in
those cases where procedural requirements have not been
complied with, the action has not been held ipso facto
illegal, unlawful or void unless it is shown that non-
observance had prejudicially affected the applicant.
.......
.......
39. In B. Karunakar's case (supra), this Court considered
several cases and held that it was only if the Court/Tribunal
finds that the furnishing of the report "would have made a
difference" to the result in the case that it should set aside
the order of punishment. The law laid down in B. Karunakar
was reiterated and followed in subsequent cases also
[vide State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC
364; M.C. Mehta v. Union of India, (1999) 6 SCC 237].
.......
......
44. From the aforesaid decisions, it is clear that though
supply of report of Inquiry Officer is part and parcel of
natural justice and must be furnished to the delinquent-
employee, failure to do so would not automatically result in
quashing or setting aside of the order or the order being
declared null and void. For that, the delinquent employee
has to show `prejudice'. Unless he is able to show that non-
supply of report of the Inquiry Officer has resulted in
prejudice or miscarriage of justice, an order of punishment
cannot be held to be vitiated. And whether prejudice had
been caused to the delinquent- employee depends upon the
facts and circumstances of each case and no rule of
universal application can be laid down.
11. The plea taken by learned counsel appearing for the petitioner does not
come to his rescue as nothing has been brought on record to show that as to how
the unexplained stale claim could have been ignored.
12. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, no interference is warranted in the
instant writ application and the same is hereby dismissed.
(Dr. S.N. Pathak, J.)
RC/
