Jharkhand High Court
Abbott Healthcare Private Limited vs Dipankar Jha on 1 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
W.P.(L) No.1299 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.1299 of 2023
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Abbott Healthcare Private Limited, a company registered under the
Laws of India and having its office at 4, Corporate Part, Sion,
Trombay Road, P.O. & P.S. Sion, District Mumbai, (Maharashtra)
PIN-400071, through Shailendra Singh Pawar, aged about 50 years,
Son of Shri O. S. Pawar, working as Senior Manager (HR), Abbott
Healthcare Private Limited and resident of 24C Sapphire-1, Cosmos
Jewels, Kavesar, P.O. & P.S. Kasarvadavali, District Thane,
(Maharashtra), PIN-400615 ... Petitioner
Versus
Dipankar Jha, Son of Shankar Jha, resident of Quarter no.498, Sector
1/B, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro,
(Jharkhand) PIN: 827001 ... Respondent
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For the Petitioner : Mr. Alok Kr. Sinha, Advocate
Mr. Nipun Bakshi, Advocate
Mr. Shubham Sinha, Advocate
Mr. Mrinal Singh, Advocate
For the Respondent : Mr. Uday Choudhary, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Writ Petition has been filed under Article 226 of the Constitution of
India inter alia with a prayer for issuance of a Writ of Certiorari or any other
appropriate writ/order/direction for quashing and/or setting aside the
industrial award dated 10.09.2022, the copy of which has been kept at
Annexure-8 of this Writ Petition passed by the learned Presiding Officer,
Labour Court, Bokaro in I.D. Case No.01 of 2017 whereby and where under the
learned Presiding Officer, Labour Court, Bokaro has directed the petitioner-
company to reinstate the applicant-workman (respondent herein) with
continuity of service and 30% of total back wages only from the date of his
dismissal till his reinstatement overlooking the fact that Section 2 A (3) of the
Industrial Disputes Act, 1947 confers jurisdiction upon the industrial
adjudicator to entertain only those cases relating to termination of service of an
individual workman which has been raised within a period of three years from
the date of such termination and not otherwise.
3. The undisputed fact is that the petitioner-company dismissed the
respondent from services of the company with effect from 25.02.2013 by its
communication dated 20.02.2013, the copy of which has been kept at
Annexure-1 of this Writ Petition. The undisputed fact remains that the
respondent filed an application invoking the jurisdiction of learned Presiding
Officer, Labour Court, Bokaro under Section 2 A (2) of the Industrial Disputes
Act, 1947 as amended by the Industrial Dispute (Amendment) Act, 2010 on
12.04.2017. The petitioner who was the opposite party-employer before the
Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017, took a
specific plea in paragraph-2 of its written-statement filed before the Labour
Court, Bokaro that the application is filed by the applicant who is the
respondent of this Writ Petition, is not maintainable; the same having been
filed beyond the period of three years from the date of dismissal of the
applicant before the Presiding Officer, Labour Court, Bokaro. In the impugned
award, the learned Presiding Officer, Labour Court, Bokaro also recorded these
pleadings as well as the submission of the Writ Petitioner who was the
opposite party before it in paragraph-3 of the impugned award but did not
frame any issue in respect of the maintainability of the application being barred
by limitation, filed under Section 2 A (2) of the Industrial Disputes Act, 1947
nor dealt with the said pleadings as well as the arguments of the writ petitioner
that the application filed by the respondent of this Writ Petition is barred by
Section 2 A (3) of the Industrial Disputes Act, 1947.
4. Learned counsel for the petitioner relies upon the judgment of a Division
Bench of this Court in the case of Jafir Khan vs. General Manager, Jamadoba
Colliery, M/s Tata Steel Limited & Another reported in 2020 SCC OnLine
Jhar 1773 paragraphs-21 and 22 of which reads as under:-
"21. Sub section 3 of Section 2-A provides that the application
referred to in sub-section (2) shall be made to the Labour Court or
Tribunal before the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of service as
specified in sub-section (1).
22. In the case in hand, the petitioner was separated from service
w.e.f. 31.03.2003 but the application was filed after lapse of 12 years
and Section 2-A of the Act, 1947, which is for expeditious disposal
of the dispute and under sub section 3, it has been provided to file
"an application mandatorily within three years before the Labour
Court or Tribunal from the date of discharge, dismissal,
retrenchment or otherwise termination of service as specified in sub-
section (1)" but admittedly the application was filed after lapse of 12
years, in our considered view, in view of specific bar as provided
under sub section 3 to Section 2-A, such application was not fit to
be entertained by the Labour Court or Tribunal."
and submits that the Hon'ble Division Bench of this Court has held that
the Industrial Adjudicator cannot entertain an application under Section 2 A
(2) of the Industrial Disputes Act, 1947 beyond a period of three years from the
date of discharge/dismissal/retrenchment or otherwise termination of the
services of the workman concerned, as the case may be.
5. In support of his contention, learned counsel for the petitioner also relies
upon the judgment of the Hon'ble Patna High Court in the case of Uco Bank
vs. Union of India passed in Civil Writ Jurisdiction Case No.2367 of 2016 dated
08.01.2018 paragraphs-14 and 15 of which reads as under:-
"14. On perusal of sub-section (3) of Section 2-A, it would be
manifest that an application under sub-section (2) of Section 2-A
after expiry of three years from the date of dismissal is not
permissible.
15. Hence, in view of the statutory provision prescribed under sub-
section (3) of Section 2-A reference to the Industrial Tribunal,
Patna itself was patently bad."
and submits that the Hon'ble Patna High Court is of the same view as
that of the Hon'ble Division Bench of this Court in the case of Jafir Khan vs.
General Manager, Jamadoba Colliery, M/s Tata Steel Limited & Another
(supra).
6. To buttress, his submissions, learned counsel for the petitioner also relies
upon the judgment of Hon'ble High Court of Karnataka in the case of M/s. ITC
Infotech India Ltd., Bangalore vs. Mr. Venkataramana Uppada reported in
2016 SCC OnLine Kar 538 paragraphs-26 and 27 of which reads as under:-
"26. In view of the fact that sub-Section (3) of Section 2A having
been held as mandatory and the said provision clearly indicating
that in case of dismissal, discharge, retrenchment or termination, an
application referred to in sub-Section (2) of Section 2 A to be made
before the expiry of three years, i.e., on or before 10.02.2012 and
same having not been made, respondent -- employee cannot be
heard to contend that delay is to be condoned. At the cost of
repetition, it is to be held that on the expiry of three years period
from the date of discharge, dismissal etc., the right to invoke Section
2A would stand extinguished.
27. In view of the aforestated discussion, this Court is of the
considered view that Point Nos. (i) & (ii) has to be answered in the
negative namely, Labour Court cannot entertain a claim petition
filed under Section 2A(2) of the I.D. Act after three years from the
date of discharge, dismissal, retrenchment or termination and
Labour Court was not justified in condoning the delay of 730 days
in filing the claim petition."
and submits that on the expiry of three years from the date of
discharge/dismissal/retrenchment etc., the right to invoke Section 2 A (2) of
the Industrial Disputes Act, 1947 stands extinguished unlike the reference
under Section 10 (1) of the Industrial Disputes Act, 1947 for which, of course,
no limitation has been prescribed. Hence, it is submitted that the impugned
award being the industrial award dated 10.09.2022 passed by the learned
Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017, having
been passed in violation of the settled principle of law and without jurisdiction
being more than 3 years of the termination of the respondent-workman, the
same be quashed and set aside.
7. Learned counsel for the respondent, on the other hand, relies upon the
judgment of Hon'ble Supreme Court of India in the case of Raghubir Singh vs.
General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301
in which in the facts of that case when a reference was made under Section 10
(1) (C) of the Industrial Disputes Act, 1947, the Hon'ble Supreme Court of India
reiterated the principle of law settled in the case of Ajaib Singh vs. The
Sirhind Co-operative Marketing Cum- Processing Service Society Limited &
Another reported in (1999) 6 SCC 82 to the effect that no reference to the
Labour Court can be generally questioned on the ground of delay alone.
8. Learned counsel for the respondent next relies upon the judgment of
Hon'ble Rajasthan High Court in the case of M/s. Glenmark Pharmaceuticals
Limited vs. The Judge, Labour Court and Industrial Tribunal, Bhilwara &
Another passed in D.B. Civil Special Appeal (W) No.801 of 2014 dated
27.08.2015 again in a case of reference made by the appropriate Government
obviously under Section 10 (1) of the Industrial Disputes Act, 1947, when the
award was passed by the learned Presiding Officer, Labour Court ex-parte and
the management filed an application to set aside the ex-parte award but the
labour court dismissed the application of the management to set aside the ex-
parte award, as the same having not been filed within a period of thirty days
from the date of the award. The High Court dismissed the application of the
management and both the single judge as well as the Division Bench of the
Hon'ble Rajasthan High Court dismissed the application and appeal
respectively and the Hon'ble Supreme Court of India in S.L.P. (C) CC No.22895
of 2015 also dismissed the Special Leave Petition.
9. Learned counsel for the respondent next relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Assistant Engineer, Rajasthan
State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal passed
in Civil Appeal No.6795 of 2013 (Arising out of SLP (C) No.11305 of 2006)
dated 16.08.2013 wherein in the facts of that case the Hon'ble Supreme Court of
India has held that though limitation Act, 1963 is not applicable to the reference
made under I.D. Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time
of exercise of discretion irrespective of whether or not such objection has been
raised by the other side and submits that on the ground of delay the relief
cannot be denied to a workman, if he is otherwise entitled to the relief.
10. Learned counsel for the respondent next relies upon the judgment of
Hon'ble High Court of Judicature at Madras passed in the case of Management
of Hyundai Motor India Ltd. vs. T. Sudhakar passed in W.P. No.739 of 2021
wherein in the facts of that case, keeping in view of the amendment made to
Section 2 A in the State of Tamil Nadu, in the facts of that case where the
industrial dispute raised under Section 2 A of the Industrial Disputes Act, 1947
before the labour court, was dismissed for default and the labour court
condoned the delay in filing the petition for restoration of the industrial
dispute, the Hon'ble High Court of Judicature at Madras held that in view of
Rule 48 (1) of the Tamil Nadu Industrial Disputes Rule, the Hon'ble High Court
of Judicature at Madras did not find any infirmity or illegality in the order
passed by the labour court, learned counsel for the respondent submits that the
Industrial Dispute Act being a welfare labour legislation, certainly the technical
plea that the application under Section 2 A of the Industrial Disputes Act, 1947
was barred by limitation, cannot be entertained.
11. Learned counsel for the respondent next relies upon the judgment of
Hon'ble Patna High Court in the case of Sun Pharmaceutical Industries
Limited vs. The State of Bihar & Another passed in Civil Writ Jurisdiction
Case No.17797 of 2022 wherein the Hon'ble Patna High Court allowed the
interlocutory application filed by the workman under Section 17 (B) of the
Industrial Disputes Act, 1947.
12. Learned counsel for the respondent next relies upon the judgment of
Hon'ble Delhi High Court in the case of North Delhi Municipal Corporation
vs. Bal Kishan & Another reported in 2021 SCC OnLine Del 5543 as well as in
the case of Indra Perfumery Co. vs. Presiding Officer & Others reported in
109 (2004) DLT 927 in which the application under Section 17 (B) was allowed
and submits that as the respondent has filed an Interlocutory Application for
granting the relief under Section 17 (B) of the Industrial Disputes Act, 1947,
hence, it is submitted that the petitioner be directed to pay the respondent-
workman full wages last drawn by him including of maintenance allowance
admissible to him.
13. It is lastly submitted by the learned counsel for the respondent that there
being no illegality in the impugned award being the industrial award dated
10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in
I.D. Case No.01 of 2017, this Writ Petition, being without any merit, be
dismissed.
14. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, the sole question to be
answered in this Writ Petition is:-
"Whether an industrial dispute under Section 2 A of
the Industrial Disputes Act, 1947 as amended by
Industrial Dispute (Amendment) Act, 2010 can be
entertained by the Industrial Adjudicator beyond the
period of expiry of three years from the date of
discharge/dismissal/retrenchment or otherwise
termination of the service of the workman concerned?"
15. It is pertinent to refer to Section 2 A of the Industrial Disputes Act, 1947
{(as amended by Industrial Disputes (Amendment) Act, 2010} which reads as
under:-
2-A. Dismissal, etc., of an individual workman to
be deemed to be an industrial dispute.-- [(1)]
Where any employer discharges, dismisses, retrenches,
or otherwise terminates the services of an individual
workman, any dispute or difference between that
workman and his employer connected with, or arising
out of, such discharge, dismissal, retrenchment or
termination shall be deemed to be an industrial dispute
notwithstanding that no other workman nor any union
of workmen is a party to the dispute.
(2) Notwithstanding anything contained in section l0,
any such workman as is specified in sub-section (1)
may, make an application direct to the Labour Court or
Tribunal for adjudication of the dispute referred to
therein after the expiry of forty-five days from the date
he has made the application to the Conciliation Officer
of the appropriate Government for conciliation of the
dispute, and in receipt of such application the Labour
Court or Tribunal shall have powers and jurisdiction to
adjudicate upon the dispute, as if it were a dispute
referred to it by the appropriate Government in
accordance with the provisions of this Act and all the
provisions of this Act shall apply in relation to such
adjudication as they apply in relation to an industrial
dispute referred to it by the appropriate Government.
(3) The application referred to in sub-section (2) shall
be made to the Labour Court or Tribunal before the
expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of
service as specified in sub-section (1).
16. It is pertinent to mention here that at least the State of Andhra Pradesh,
Chhatisgarh, Punjab, Rajasthan, Tamil Nadu and West Bengal have made some
State amendment to 2 A of the Industrial Disputes Act, 1947 but in the State of
Jharkhand, no State amendment has been made. So, there is absolutely no
quarrel that the State amendments made by the aforesaid States is not
applicable to the State of Jharkhand and in the State of Jharkhand, the Central
Act being the 2 A of the Industrial Disputes Act, 1947 which has been quoted
above in the foregoing paragraphs of this judgment, will be applicable.
17. Now, as already mentioned above, the Hon'ble Supreme Court of India
has in no uncertain manner has held that the provisions of Limitation Act, 1963
is not applicable to the proceedings under the Industrial Disputes Act, 1947.
The Industrial Disputes Act since the very beginning, had a mechanism for
resolving industrial disputes by the disputes being referred to the appropriate
Labour Courts/Industrial Tribunal etc. in exercise of Section 10 of the
Industrial Disputes Act, 1947.
18. Sub Section 2 (2) and (3) of section 2 A of the Industrial Disputes Act,
1947 have been inserted by way of amendment in the Industrial Disputes Act,
1947 to provide direct access to the workman to the Labour Court or Industrial
Tribunal in case of disputes arising out of Section 2 A of the Industrial Disputes
Act, 1947. The amendment was made to enable the aggrieved workman to
choose the alternative adjudications for resolution of his dispute faster but
obviously, the time frame to avail such remedy under Section 2 A (2) of the
Industrial Disputes Act, 1947 comes with the rider that the same has to be filed
before the expiry of three years from the date of
dismissal/discharge/retrenchment etc. The introduction of Section 2 A (2) and
2 A (3) of the Industrial Disputes Act, 1947; still leaves the remedy of referring
the dispute to the Labour Court or the Industrial Tribunal by the appropriate
Government open. There is no time frame prescribed under Section 10 (1) of
the Industrial Disputes Act, 1947. In view of this fact, this Court is not inclined
to accept the contention of the learned counsel for the respondent that the
observations made by the Hon'ble Supreme Court of India in respect of the
references made under Section 10 (1) of the Industrial Disputes Act, 1947 to the
effect that no reference to the Labour Court can generally be questioned on the
ground of delay alone certainly cannot confer a jurisdiction upon the Labor
Court or the Industrial Tribunal to entertain an application under Section 2 A
(2) of the Industrial Disputes Act, 1947 as amended by Act No.24 of 2010; after
the expiry of the period of three years from the date of
dismissal/discharge/retrenchment when there is a specific bar for the same in
shape of Section 2 A (3) of the Industrial Disputes Act, 1947 and this view has
already been held by the Division Bench of this Court as well as other High
Courts as has been referred in the foregoing paragraphs of this judgment
wherein the judgments relied upon by the learned counsel for the petitioner
has been quoted.
19. Under such circumstances, this Court has no hesitation in holding and
answering the question framed in this case; that the Labour Court or the
Industrial Tribunal has no power or jurisdiction to entertain an application
under Section 2 A (2) of the Industrial Disputes Act, 1947 after expiry of three
years from the date of discharge/dismissal/retrenchment etc. of the services of
the workman concerned.
20. Now, coming to the facts of the case, as already indicated above the
termination was on 25.02.2013 and the application under Section 2 A of the
respondent/applicant was filed on 12.04.2017 i.e., after the expiry of the period
of three years. Hence, certainly, the Labour Court, Bokaro has committed a
grave illegality by entertaining such application under Section 2 A (2) of the
Industrial Disputes Act, 1947 after the expiry of three year from the date of
dismissal/discharge/retrenchment etc. of the respondent-workman. Though
the Labour Court, Bokaro was also aware about this defence of the writ
petitioner who was the opposite party before it but it also committed a
perversity by not framing any issue in that respect nor meeting the said
contention of the writ petitioner.
21. In view of the discussions made above, since the impugned award being
the industrial award dated 10.09.2022 passed by the learned Presiding Officer,
Labour Court, Bokaro in I.D. Case No.01 of 2017 suffers from perversity and
gross illegality as also having been passed without jurisdiction, the same is
liable to be quashed in exercise of the jurisdiction vested upon this Court under
Article 226 of the Constitution of India.
22. Accordingly, the impugned award being the industrial award dated
10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in
I.D. Case No.01 of 2017 is quashed and set aside.
23. In view of disposal of the instant Writ Petition, there is no scope for
passing any order in Interlocutory Application No.8616 of 2023 which was filed
under Section 17 (B) of the Industrial Disputes Act, 1947 as for exercising such
power the sine qua non is that there must be a pendency of a proceeding but
with passing of this judgment, this proceeding has come to an end.
Accordingly, Interlocutory Application No.8616 of 2023 stands disposed of
being infructuous.
24. In the result, this Writ Petition stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 01st of February, 2024
AFR/ Animesh
