Gujarat High Court
Dhanani Manjuben Rajabhai vs Executive Engineer on 11 February, 2020
Equivalent citations: AIRONLINE 2020 GUJ 270
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/7562/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7562 of 2019
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DHANANI MANJUBEN RAJABHAI
Versus
EXECUTIVE ENGINEER
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Appearance:
MR.MRUDUL M BAROT(3750) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 11/02/2020
ORAL ORDER
1. This petition is preferred under Articles 226 and 227 of the Constitution of India with the following prayers:-
"(A) YOUR LORDSHIPS be pleased to issue writ of mandamus, or writ of certiorari or any other writ, order or direction, declaring the impugned award dated 06.10.2017 passed by Presiding Officer, Labour Court No.1, Junagadh, in Reference (T) Case No. 124/2005 is illegal, improper, arbitrary and contrary to the settled proposition of law and further be pleased to quash and set aside the same and direct the Respondent Department to consider the case of the Petitioner and reinstate the petitioner with all back wages and pay lumpsum compensation to the petitioner.
(B) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to direct the respondent authorities to consider the case of the petitioner and pay lumpsum compensation to the petitioner as per then prevailing policy.
(C) YOUR LORDSHIPS be pleased to grant such other and further relief as may be deemed fit in the interest of justice."
2. The respondent herein is an employer from the Road and Building Department, Junagadh where the petitioner was Page 1 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER working as a worker on a monthly salary of Rs. 1500/- from the year 1980.
2.1. It is the say of the petitioner that she was terminated from service in the year 1987 without notice, notice pay in lieu of notice and without any domestic inquiry. Thus, when she was terminated without following the mandatory provisions of Industrial Disputes Act, 1947, she has raised a challenge which culminated into reference being Reference (T) Case No. 124 of 2005.
2.2. The statement of claim, written statement and adducement of evidence eventually culminated into the Judgment and Award dated 06.10.2017. The reference was rejected on the ground that she did not proved of having worked for 240 days in any calendar year and the reference was filed after a huge delay of 19 years.
3. This Court has heard learned advocate Mr. M.M.Barot who extensively argued for and on behalf of the petitioner and urged this Court that she worked for 7 years and without following any mandatory provisions, her services came to be terminated.
4. Without having issued notice to the respondents, at the request, learned AGP Mr. Kanara has assisted the Court and has Page 2 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER pointed out that the elaborate decision does not, in any manner, require indulgence from the Court. Relying on the decision rendered by the Apex Court in case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil; reported in 2010 AIR SCW 6387, it is further urged that the exercise of powers under Article 227 of the Constitution of India are not necessary.
5. This Court, on considering the submissions, has realized that the detailed discussion is made on the evidence adduced before the Trial Court which is on the ground of non-completion of 240 days and huge delay of 19 years, the Trial Court has not entertained the reference.
6. The judgment in case of Shalini Shyam Shetty (supra), particularly para 62 requires consideration at this stage, which provides as to when the exercise of powers under Article 227 would be necessary:-
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the Page 3 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one Page 4 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article
227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for Page 5 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
7. Reverting to the facts as can be noticed, the Court after detailed discussion of evidence, categorically pointed out the absence of any material indicating completion of 240 days in the year 1987 or otherwise. It is in the year 2001 according to the petitioner she was not continued. She was serving with the wages of Rs. 1500/- per month. According to the respondent, from 20.10.1986, she stopped reporting on duty and the Court therefore held that it is in the year 2005, the reference has been sought after 18 years. It is possibly as rightly observed by the Court that once the Resolution dated 17.10.1988 has come for the benefit of the daily wagers and those continued to work for long time, the dispute has been raised. If she has chosen not to continue the work from 1987, approaching the Court after 19 years, if has been found to be objectionable by the Court, in wake of the settled principle of law, no interference is desirable.
8. The decision of the Apex Court rendered in case of Prabhakar vs. Joint Director Sericulture Department, Page 6 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER reported in 2015 (15) SCC 1, requires consideration at this stage, wherein, the Court in the said decision in paragraph 20 has held and observed thus:-
"20. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.
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 Limited v. 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.
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37. Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
38. It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
39. This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act.
40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This Page 8 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non- existent.
42. 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 Page 9 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER 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 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 Page 10 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER 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.Page 11 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020 C/SCA/7562/2019 ORDER
43. 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 the aforesaid perspective in such matters.
44. 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."
9. On application of the principles to the facts of the case of the petitioner, the Trial Court has correctly held this to be a reference which is also barred by the delay and latches.
10. Resultantly, this petition is dismissed in limine.
(SONIA GOKANI, J) Bhoomi Page 12 of 12 Downloaded on : Thu Feb 13 23:48:25 IST 2020