Gujarat High Court
State Of Gujarat vs Virubha Natubha Gohil on 19 July, 2024
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22396 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT & ORS.
Versus
VIRUBHA NATUBHA GOHIL & ANR.
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Appearance:
MR CHINTAN DAVE, AGP for the Petitioner(s) No. 1,2,3
MR BJ TRIVEDI(921) for the Respondent(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 19/07/2024
ORAL JUDGMENT
1. Heard learned AGP Mr Chintan Dave for the petitioner and learned advocate Mr Page 1 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined B.J. Trivedi for the respondent no.1.
2. By this petition under Article 227 of the Constitution of India the petitioners have prayed for the following reliefs:
"A. YOUR LORDSHIP may be pleased to admit and allow this writ petition;
B. YOUR LORDSHIP may be pleased to issue a writ, order or direction in the nature of certiorari and/or any other writ in the nature of certiorari to quash and set aside the judgment and award dated 08.05.2019 passed in Reference (LCB) No.57 of 2011 passed by the learned Judge, Labour Court, Bhavnagar;
C. Pending admission, hearing and final disposal of the petition, YOUR LORDSHIP may be pleased to stay, implementation, operation and execution of the judgment and award dated 08.05.2019 passed in Reference (LCB) No.57 of 2011 passed by the learned Bhavnagar; Judge, Labour Court, Page 2 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined D. YOUR LORDSHIP may be pleased to grant such other and further relief as may be deemed fit and proper in the interest of justice."
3. The brief facts of the case are as under:
3.1. the respondent no.1-workman was employed with the petitioner no.2 Deputy Executive Engineer, Shetrunji Left Canal Sub-Division, Talaaja, District Bhavnagar in the year 1990 as Ad-hoc labourer and his services were terminated on 01.01.2000 without notice, notice pay or retrenchment compensation as per the provision of Section 25F of the Industrial Disputes Act, 1947 (for short 'the Act'). The respondent no.1-workman was getting Rs.2,000/- as monthly salary when his service was terminated.Page 3 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024
NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 3.2. The respondent no.1 raised the Industrial Dispute under Section 10(1) of the Act before Assistant Labour Commissioner in the year 2011 after more than eleven years.
3.3. The Assistant Labour Commissioner, Bhavnagar by order dated 14.06.2011 made a reference (LCB) no.57 of 2011 to the Labour Court Bhavnagar to decide the reference as to whether the respondent no.2 should be reinstated at his original place with continuity of service with backwages with effect from 01.01.2000 or not.
3.4. The Labour Court Bhavnagar issued notice to the petitioner after respondent filed statement of claim on 28.09 2011.
Page 4 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 3.5. The petitioner filed reply at Exhibit-11 on 19.08.2014 contending that the reference is not maintainable as the same is filed after delay of 11 years. It was also submitted that the respondent no.1-workman did not discharge the continuous service but was employed during the period from 1990 to 1999 as and when need arose. The petitioner submitted that the respondent no.1-workman has not worked for more than 240 days in any of the year from 1990 1999 as under:
Year Days of work 1990 29 1991 126 1992 16 1993 51 1994 109 1995 138 1996 50 1997 68 1998 98 1999 74 Page 5 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined
3.6. The Labour Court after considering the affidavit of the respondent no.1- workman at Exhibit 13 and the cross-
examination of the respondent no.1-workman as well as the documentary evidence produced by the petitioner in form of notice of demand dated 29.03.2011 at Exhibit-30 to 37 as well as the affidavit of Shri Madhukar Vinaychandra Gandhi at Exhibit-29 presence register and summary of the presence register etc at mark 21/1 to 21/33 framed following issues:
(i) Whether the reference is barred by limitation ?
(ii) whether the respondent comes within the definition of industry ?
(iii) Whether respondent applicant is Page 6 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined covered within definition of workman ?
(iv) Whether the workman was discharged from service illegally ?
(v) Whether the workman was entitled to be reinstated ?
(vi) Whether the workman is entitled to the backwages ?
(vii) what order ?
3.7. The Labour Court after considering oral and documentary evidence came to the conclusion that the services of the respondent no.1-workman was illegally terminated and partly allowed reference by passing an order of reinstatement of the respondent no.1-workman at the original place with continuity of service without Page 7 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined backwages along with cost of Rs.3,000/-.
3.8. Being aggrieved the petitioners have challenged the Judgment and Award dated 08.05.2019 by this petition.
4. Learned AGP Mr. Chintan Dave submitted that the Labour Court could not have held that the reference does not suffer from delay and laches as the respondent no.1- workman has preferred reference after 11 years, more particularly when the respondent no.1-workman was a daily wager and was not employed against any place in the setup. It was submitted that the Labour Court has committed an error in relying upon the decision of the Hon'ble Supreme Court in case of (Reghuvir Singh Vs. General Manager Haryana Roadways, Hissar) reported in 2014 10 SCC by Page 8 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined distinguishing the same with the decision of the Hon'ble Apex Court in case of Prabhakar Vs. Joint Director, Sericulture Department reported in 2015 (3) CLR 937 by holding that the reference was a live reference by relying upon the deposition of the workman wherein he has stated that he was informed by the officer of the petitioner that there is no need to be in hurry and he was assured of reinstatement and therefore he did not file the case.
It was submitted that even otherwise respondent no.1-workman has not worked for more than 240 days in any of the year from 1990 onwards and the Labour Court has committed an error in drawing an adverse inference.
4.1. It was further submitted that the Page 9 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined order of reinstatement with continuity of service could not have been passed, more particularly when the respondent no.1- workman has failed to led any evidence that he has worked for more than 240 days and also in absence of any explanation for delay of more than 11 years in preferring the reference before the authority.
4.2. Referring to the above dictum of law it was submitted that the impugned order is liable to be quashed and set aside as respondent no.1-workman is not entitled to be reinstated as there was no industrial dispute within the meaning of Section 2(k) of the Act as the workman can be said to have waived his right or acquiesced into the act of termination and therefore when the respondent no.1 had raised dispute in Page 10 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined the year 2011, it had become stale and was not an existing dispute.
5. On the other hand learned advocate Mr.B.J. Trivedi for the respondent no.1- workman submitted that no notice, notice pay or retrenchment compensation was paid to the respondent no.1-workman before his service came to be terminated and as such the termination was without following due process of law and there was a clear breach of the provision of Section 25F and 25G of the Act. It was submitted that the question of delay would not come in the way of respondent no.1-workman in view of the breach of provision of Section 25G of the Act which is proved by the respondent no.1-workman before the Labour Court as there is no dispute to the fact that after Page 11 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined termination of services of respondent no.1-workman the petitioner engaged other workman without giving any opportunity to the respondent no.1-workman and the same work is being taken from other persons resulting into violation of provision of Section 25G of the Act which is a continuous breach. It was therefore submitted that the contention raised on behalf of the petitioner that the dispute has become stale is not correct. It was submitted that the termination by oral order of the respondent no.1-workman with effect from 01.01.2000 without following due process is rightly set aside by the Labour Court. It was therefore submitted that no interference is called for in view of the finding of fact recorded by the Labour court by drawing adverse inference Page 12 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined in absence of the documents produced on record by the petitioners for the services of more than 10 years rendered by the respondent no.1-workman from 1990 onwards.
5.1. In support of his submissions reliance was placed on the decision of the. Hon'ble Apex Court in case of Ujjam Bai Vs. State of U.P. reported in AIR 1962 SC 1621 as under:
"What is the position with regard to an order made by a quasi-judicial authority in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is admittedly intra vires ? It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal, Where a quasi-judicial authority has jurisdiction to decide a matter, it does Page 13 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal hat; jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the enquiry". (Rex v. Bolten, (1981) 1 QB 66). Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required, (i.e. has jurisdiction) to determine. The strength of this theory of jurisdiction lies in its logical Page 14 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined consistency. But there are other oases where Parliament when it empowers an inferior tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the tribunal's findings within one area being conclusive and with in the other area impeachable. "The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a, fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess.Page 15 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024
NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined (Halsbury's Laws of England, 3rd Edn. Vol. II page 59).
The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be' impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stritosensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Living stone v. Westminister Corporation (1904- 2 KB 109; Re Birkenhead Corporation 1952 CH 359; Re 56 Denton Road Twickenham, 1953 Ch 51; Society of Medical Officers of Health v. Hope, 1959-2 WLR 377 at pp. 391, 396, 397, 402. In Burn & Co. Calcutta v. Their Employees 1956 SCR 781: ((S)AIR 1957 SC 38, this Court said that although the rule of res judicata as enacted by S. 11 of the Code of Civil Procedure did not in terms apply to an Page 16 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined award made by an industrial tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. In Daryao v. The State of U. P. 1961-2 SCA 591:(AIR 1961 SC 1457) this Court applied the doctrine of res judicata in respect of application under Art. 32 of the Constitution. It is perhaps pertinent to observe here that when the Allahabad High Court was moved by the petitioner under Art. 226 of the Constitution against the order of assessment, passed on an alleged misconstruction of the notification of December 14, 1957, the High Court rejected the petition on two grounds. The first ground given Was that the petitioner had the alternative remedy of getting the error corrected by appeal the second ground given was expressed by the High Court in the following words:
"We have, however, heard the learned counsel for the petitioner on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even handmade biris, have been subject to Sales Tax since long before the dated of the issue of the above Page 17 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957, was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales Tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957, to 30th June, 1958, the petitioner was liable neither to payment of excise duty nor to payment of Sales Tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to 'apply only to those goods on which an additional Central excise duty had been levied and paid"."
5.2. Reliance was placed on the decision of Harjinder Singh V. Punjab State Warehousing Corporation reported in AIR 2010 SC 1116 which reads as under:
"10. We have considered the respective submissions. In our Page 18 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC
675. In Syed Yakoob's case, this Court delineated the scope of the writ of certiorari in the following words:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or Page 19 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.Page 20 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024
NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 (1) SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168).
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut Page 21 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its Page 22 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened." "
5.3. Learned advocate Mr Trivedi referring to the above decisions further relied upon the decision of the Hon'ble Division Bench of this Court in case of Brijesh Kantilal Somaiya Vs. Chief Officer in Letters Patent Appeal No.735 of 2017 and other allied matters wherein the Hon'ble Division Bench confirmed the order passed by the learned Single Judge whereby the Page 23 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined order of reinstatement without back wages of similarly situated persons passed by the Labour Court was also confirmed. The Hon'ble Division Bench in the said decision has held as under:
"10. Before parting, what emerges on record is that in case of breach of statutory provisions viz. Section 25F, 25G, 25H of the Act, 1947, ordinarily as a consequence of such a breach, workmen is entitled for reinstatement, continuity of service and back-wages. That when the action of employer is found as such in breach of above provisions of Act, 1947, remedy of lump sum is not to be followed and reinstatement has to be ordered by the labour Court as such breach is illegal. In a given case, when no material is available in support of claim of the workmen and even the employer fails to establish that workmen was not in service or on muster role of the employer and powers to appoint or employee workmen were completely absent and that authority or officer had no jurisdiction to do so, on a proved fact like this, order can be passed withholding continuity in service and back-wages like in the present group of Page 24 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined appeals preferred by the employees against Junagadh Municipality.
10.1 That pendency of litigation viz. reference before the Labour Court and thereafter before the writ court, the long tenure of such pendency is no ground to deny back-wages to workmen, since such pendency is not due to fault or any negligence on the part of the workmen and it is due to huge arrears and pendency of various cases before the court.
10.2 The law laid down by the Apex Court in the case of Hindustan Tin Works Pvt. Ltd. [supra], Gauri Shanker [supra] and Sudarshan Rajpoot [supra] is good law even today and J.K.Synthetics Ltd. (supra) was distinguished by their Lordships in Deepali Gundu Surwase [supra] and was held per incurium for which this court cannot have any different consideration. That mentioning of Section 25B of the Act, 1947 in Government Resolution dated 17.10.1988 issued by the State of Gujarat has the same meaning and interpretation for which we have made reference in earlier part of this judgment. Unless the award by labour Court qua reinstatement, continuity in service and back-wages or reinstatement without continuity and/or without back-wages is quashed and set aside by writ court upon challenge to such an award, no officer or authority Page 25 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined of the Government has power to go behind the order of labour Court and such officer or authority is duty-bound to implement the award in accordance with law."
6. Learned advocate Mr.Trivedi referred to and relied upon the following decisions in support of his submissions:
(i) Central Council For Research in Ayurvedik Sciences & Anr Vs. Baikartan Das & Ors reported in 2024 1 GLH 65 wherein the Hon'ble Apex Court held as under:
"22. Having heard the learned counsel appearing for the parties and having gone through materials placed on record the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment?
23. The appellant Council is an autonomous body registered under the Society Registration Act, 1860 and is Page 26 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined administratively controlled by the Ministry of AYUSH, Government of India. It is a body constituted for the purpose of undertaking, cooperating, formulating, developing and promoting the research on scientific guidelines in Ayurvedic Sciences. The recruitment rules, procedure and the service conditions of these employees are governed by the Bye-Laws and Memorandum of Association of the Council.
36. We may at this stage, refer to the following decision in Tamil Nadu Education Department Ministerial and General Subordinate Services Association and Others v. State of Tamil Nadu and Others reported in (1980) 3 SCC 97 : [ SCC pp. 99 SCC (L&S) p. 296, para 7]
"7.In Service Jurisprudence integration is a complicated administrative problem where, in doing broad justice to many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the executive, not to the court. All life, including administrative Page 27 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined life, involves experiment, trial and error, but within the leading strings of fundamental rights, and, absent unconstitutional 'excesses', judicial correction is not right......"
41. The decision in the case of T.M. Sampath (supra) was later referred to and relied upon by this Court in the case of Bhagwan (supra). This Court in the Bhagwan (supra) observed in para 26 as under:
"26. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on a par with the government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/ Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the autonomous Page 28 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined Board/body cannot be put on a par."
(Emphasis Supplied)
50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.
51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass Page 29 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.
52. The essential features of a writ of certiorari, including a brief history, have been very exhaustively explained by B.K. Mukherjea, J. in T.C. Basappa v. T. Nagappa and Another, reported in AIR 1954 SC 440. The Court held that a writ in the nature of certiorari could be issued in 'all appropriate cases and in appropriate manner' so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows:
"7. ... In granting a writ of 'certiorari', the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for Page 30 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined those of the inferior tribunal .....
8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. ....
9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction."
53. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The court issuing a writ of Page 31 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous."
54. This Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.
56. In Surya Dev Rai v. Ram Chandra Rai and Others, reported in 2003 (6) SCC 675, a Bench of two Judges held that the certiorari jurisdiction though available, should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine, whether on the face of the record the inferior court has committed any of the errors as explained by this Court in Hari Vishnu Kamath v.
Page 32 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined Ahmad Ishaque and Others, AIR 1955 SC 233 occasioning failure of justice.
57. From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary or jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct. The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself jurisdiction.
63. However, we may clarify that findings of fact based on 'no evidence' or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law."
6.1. It was submitted that in case of Navnitray Parmanand Jani Vs. Deputy Executive Engineer & Ors in Special Civil Application No.20706 of 2018 and other allied matters wherein in similar facts it Page 33 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined was held that the delay, per se, may not be ground for the Court to deny the reliefs to the petitioner since the same would amount to depriving the petitioner from putting forth his right and non-suit him and the Court and the Adjudicating Authority at the best can mould the relief and can deny some of the benefits which the petitioner would be otherwise entitled had the reference been made earlier. It was therefore submitted that if the Court is of the opinion that there is a delay in preferring the reference then relief may be moulded and the respondent workman may be given suitable reliefs.
6.2. It was further submitted that in the similar facts before the Court in the aforesaid case was identical and the Page 34 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined Labour Court denied the relief to the petitioner in the said petition on the ground of delay and the petitioners were ordered to be reinstated in service with continuity of service from the period from the date of termination till the date of filing of the reference in each case.
6.3. Reliance was also placed on the observation made by the Court in the said decision to the effect that as per the principle of "last come first go" was not observed and there is no reason put forth by the authority as to why the retrenched workmen were not called back.
6.4. It was submitted that as per Section 25H of the Act which provides that when any workmen are retrenched and the Page 35 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined employer proposes to take his employment, any person, he shall, in such a manner, as may be prescribed give an opportunity to the retrenched workmen who are citizens of India to offer themselves for reemployment and such retrenched workmen who offer themselves for reemployment shall have preference over other persons. It was therefore submitted that the petitioners have also committed breach of Section 25H of the Act.
6.5. Learned advocate Mr.Trivedi also relied upon the decision of the Hon'ble Supreme Court in case of U.P.State Electricity Board Vs. Rajesh Kumar reported in 2003 (12) SCC 548 wherein the Hon'ble Apex Court held that there is no period limitation as prescribed for the Page 36 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined parties in making the reference and when there is no stale claim, appropriate reliefs are required to be granted.
6.6. Learned advocate Mr.Trivedi also relied upon the decision of the Hon'ble Supreme Court in case of Syed Yakoob Vs. K.S.Radhakrishnan reported in 1964 AIR (SC) 477 wherein the Hon'ble Apex Court explained in detail the powers under Article 226 to be exercised while issuing the writ of certiorari as under:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where Page 37 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Page 38 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of Page 39 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque(1955-1) SCR 1104: ((S) AIR 1955 SC 233):
Nagendra Nath V. Commissioner of Hills Division, 1958 SCR 1240 :
(AIR 1958 SC 398), and Kaushalya Devi v. Bachittar Singh A.I.R. 1960 S.C. 1168.
8.It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It Page 40 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.
9. In the present case, the question raised by the appellant presents no Page 41 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined difficulty whatever. The point which was raised before the High Court by respondent No. 1 lies within a very narrow compass; it is a very short and simple question of fact. It appears that in dealing with the rival claims of the appellant and respondent No. 1 for the second permit on the route in question, the Appellate Tribunal was ultimately influenced by the fact that the appellant had a workshop at Madras which is one terminus of the route in question, whereas respondent No. 1 had a workshop and a place of business only at Cuddalore which is an intermediate station on the route and did not possess a workshop at either of the terminii of the route; the other terminus being Chidambaram. In fact, that appears to be the effect of the finding made by the Authority also. Respondent No. 1 urged before the High Court that in coming to the conclusion that he had no workshop at Chidambaram, the Appellate Tribunal had failed to consider material evidence adduced by him. It is on this narrow ground that a writ has been issued in favour of respondent No. 1. Mr. Setalvad contends that the question as to whether respondent No. 1 had a workshop at Chidambaram is a pure question of fact and the High Court had no jurisdiction to interfere with the finding recorded by the Appellate Tribunal and seek to correct Page 42 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined it by issuing a writ of certiorari. In this connection, he relies on the fact that both the Authority and the Appellate Tribunal have, in substance, found that respondent No. 1 had no workshop at either of the two terminii on the route and the fact that no reasons have been given in support of the said finding would not justify the interference of the High Court in its jurisdiction under Art. 226. It may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chadambaram, but we do not think that the failure of the Appellate Tribunal to give a reason in that behalf, or to refer specifically to the evidence adduced by respondent No.1, would, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under Art. 226. In this connection, we ought to add that it has not been suggested by respondent No. 1 that in dealing with his claim for a permit, admissible evidence which he wanted to adduce had been excluded by the Tribunal from the record;the argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would, as such, be outside the purview of an enquiry in Page 43 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined proceedings for a writ of certiorari under Art.226."
6.7. Reliance was placed on the decision of the Hon'ble Division Bench in MCA 1 of 2017 in Letters Patent Appeal No.906 of 2016 in SCA No.9902 of 2015 in case of Danjibhai Bhanabhai alias Bhanjibhai Maru Vs. State of Gujarat wherein the Hon'ble Division Bench considered the delay of 14 years in making the reference before the Labour Court while granting the relief to the workman held that the learned Single Judge committed an error while allowing the petition filed by the authority quashing and setting aside the award passed by the Labour Court and modified the award by not granting backwages to the workman. It was therefore submitted that Page 44 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined the petition is required to be dismissed.
6.8. Learned advocate Mr.Trivedi also relied upon the decision of Hon'ble Division Bench in case of Brambhatt Jayesh Bhupatray Vs. State of Gujarat in Letters Patent Appeal No.1554 of 2018 in Special Civil Application No.1127 of 2010 wherein the Hon'ble Division Bench considering the fact that the reference was raised after delay of ten years, moulded the relief modifying the order passed by the learned Judge to the extent that the workman shall not be entitled to the benefit of continuity of service from the date of termination till the date of raising the reference. It was therefore submitted that in the facts of the present case also the relief granted by the Labour Court may be Page 45 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined moulded by modifying the award by not granting the continuity of service from the date of termination till the date of raising the dispute.
7. Having heard learned advocates for the respective parties and taking into consideration the facts of the case as well as decisions relied upon by both the sides. It appears that the Labour Court has while deciding the issue no.1 in negative with regard to the limitation for filing the reference is concerned, has arrived at a finding on contrary to the settled legal position. Merely the workman has stated in the deposition that he was assured of reinstatement and therefore did not raise the dispute for 11 years, could not have been considered as valid Page 46 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined explanation for delay in filing the reference.
8. The Hon'ble Apex Court in case of Sri. Prabhakaran (Supra) has held that in no uncertain terms that if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists. It was held that the law of limitation does not apply, it is to be shown by the workman that there is a disputed in prasenti. In the facts of the case, the respondent no.1-workman was not able to demonstrate that even after lapse of 11 years and though there are delays and laches, such delay has not resulted into making the industrial dispute, ceased to exist. The respondent no.1-workman has failed to give satisfactory explanation Page 47 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined for such delay and laches and demonstrate that the circumstances discloses that the issue was still alive and delay would not come in his way because of the reason that the law of limitation has no application.
9. In the facts of the case, merely because there is breach of provisions of Section 25G and 25H of the act, it cannot be said that the disputes is still alive and because of the delay of 11 years dispute can no longer be said to remain alive and it is to be treated as stale issue and in non existent dispute, which could not have been referred to the Labour Court, merely because the Assistant Labour Commissioner has made reference, the Labour Court can still come to the conclusion that no industrial dispute Page 48 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined within the meaning of Section 2(k) of the Act exists and therfore no relief could have been granted.
10. The Hon'ble Apex Court in case of Prabhakaran (Supra) has held as under:
"40) 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 Page 49 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 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 Page 50 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 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 Page 51 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 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 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 Page 52 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 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 Page 53 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined 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."
11. Applying the above test to the facts of the case, the Labour Court could not have entertained the reference and ought to have dismissed the same on the ground Page 54 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined of delay and laches being stale 'industrial dispute'.
12. The contention raised on behalf of the respondent no.1-workman that the delay occurred in raising the dispute should not come in his way as no limitation is prescribed and the Court can mould the relief in a suitable manner by not granting the continuity of service for the period of delay is concerned, it is true that this Court can mould the relief but at the same time as held by the Hon'ble Apex Court, the dispute has to be alive and not a stale dispute.
13. The respondent no.1-workman has failed to give any explanation for delay of 11 years in raising the dispute and there was Page 55 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined no agitation by the respondent no.1- workman against his termination as no notice was issued by him on his termination nor any demand for reinstatement was made after termination and therefore it would be presumed that respondent no.1-workman has waived his right or acquiesced in to the act of termination and in such circumstances in the facts of the case when the dispute was raised the same had become Stale dispute and cannot be said to be an existing dispute. The Labour Court therefore ought to have held that there is no industrial dispute within the meaning of Section 2(k) of the Act which reads as under:
"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between Page 56 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024 NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person;"
14. On perusal of the above provisions and considering the facts of the case, when the respondent no.1-workman has slept over the matter for 11 years, it has to be considered that he had accepted the factum of his termination as the respondent no.1- workman has not even issued any notice of demand after his termination.
15. Moreover, on merits also there is evidence on record to the effect that the respondent no.1-workman never worked for more than 240 days in any of the years from 1990 till 1999 and as per the documents produced on record by the petitioner before the Labour Court.
Page 57 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined However it is true that the Labour Court has drawn an adverse inference in absence of the record as it was an old record and had the respondent no.1-workman approached the Labour Court immediately, the petitioner were required to produce documentary evidence in form of presence register etc.
16. In view of the above, it is apparent that the Labour Court has passed an order of reinstatement with continuity of service in a stale dispute and in absence of any industrial dispute within the meaning of Section 2(k) of the Act.
17. The impugned order is therefore liable to be quashed and set aside as per the decision of the Hon'ble Apex Court in case of Prabhakar (Supra).
Page 58 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024NEUTRAL CITATION C/SCA/22396/2019 JUDGMENT DATED: 19/07/2024 undefined
18. The petition therefore succeeds and is accordingly allowed. The impugned order dated 08.05.2019 is accordingly quashed and set aside. Rule is made absolute to the aforesaid extent. No order is to costs.
Sd/-
(BHARGAV D. KARIA, J) URIL RANA Page 59 of 59 Downloaded on : Mon Jul 22 20:49:16 IST 2024