Gujarat High Court
State Of Gujarat vs Kanaksinh Pradhumansinh Jadeja on 3 May, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/5328/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5328 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
STATE OF GUJARAT
Versus
KANAKSINH PRADHUMANSINH JADEJA
Appearance:
MR KRUTIK PARIKH AGP (1) for the PETITIONER(s) No. 1
MR PADMRAJ K JADEJA(2095) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/05/2018
ORAL JUDGMENT
1. Heard Mr. Krutik Parikh, learned AGP and Mr. Jadeja, learned advocate for the respondent.
2. In this petition the petitioner State has challenged Page 1 C/SCA/5328/2015 JUDGMENT award dated 12.6.2014 passed by learned Labour Court at Rajkot in Reference (LCR) No.32 of 2009 whereby learned Labour Court partly allowed the reference and directed present petitioner to reinstate the claimant on his original post. Learned Labour Court did not grant demand for backwages.
3. Feeling aggrieved by said award and direction the original opponent employer has taken out present petition.
4. So far as factual background is concerned, it has emerged from the record that present respondent (original claimant before learned Labour Court) somewhere in 2009 raised industrial dispute with the allegation that the opponent employer illegally terminated his service before 14 years i.e. in 1995 and that therefore he should be reinstated in service.
4.1 Appropriate Government referred the dispute vide order of reference dated 2.2.2009 to learned Labour Court. 4.2 The said dispute came to be registered as Reference (LCR) No. 32 of 2009.
Page 2
C/SCA/5328/2015 JUDGMENT
4.3 The claimant filed statement of claim. In his statement of claim the claimant alleged that he served with the opponent employer for about 4 years i.e. from 1991 to 1995. He further alleged that the opponent employer terminated his service in 1995. The claimant alleged breach of statutory provision viz. Section 25F, Section 25G and Section 25H of Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act"). He alleged that the opponent employer did not pay compensation and without issuing notice terminated his service. With the said allegation the claimant demanded that he should be reinstated in service with all benefits. 4.4 The opponent employer (Deputy Executive Engineer, Irrigation) filed reply and opposed reference. The opponent employer claimed that its establishment would not come within the purview of industry and that therefore the dispute cannot be termed industrial dispute. The said contention is rightly rejected and does warrant further deliberation, more particularly in light of the decision by Hon'ble Apex Court in case of Banglore Water Supply and Sewerage Board vs. A. Rajappa, AIR 1978 SC 548. The Page 3 C/SCA/5328/2015 JUDGMENT opponent employer further claimed that the claimant was engaged on adhoc and daily wage basis and that he voluntarily stopped reporting for work and that therefore the allegations that employer committed breach of Section 25F, Section 25G and Section 25H of I.D. Act are incorrect. The opponent employer also opposed reference on the ground that the dispute was raised after 13 years and that therefore reference should be rejected. With the said submissions the employer opposed reference and claimed that the reference should be rejected.
4.5 After parties completed their pleadings, learned Labour Court received evidence from both sides. When the contesting parties closed their respective evidence learned Labour Court head rival submissions. Upon conclusion of the proceedings learned Labour Court passed impugned award with above mentioned direction.
5. Learned AGP raised three contentions vis. (a) that the learned Labaour Court committed mistake in ignoring delay of 13/14 years caused in raising dispute (b) learned labour Court committed further mistake with the observation that Page 4 C/SCA/5328/2015 JUDGMENT the opponent failed to place any material on record to establish the delay and to support the contention that the reference should not be entertained after delay of 13 to 14 years (c) the claimant was engaged on daily wage basis and that therefore question of breach of Section 25F, Section 25G or Section 25H of I.D. Act does not arise.
6. On the other hand Mr. Jadeja, learned advocate for the respondent submitted that in paragraph No.8 of the award learned Labour Court has dealt with the petitioner's objection against maintainability of reference on ground of delay and that in light of the decision by Apex Court, decision by this Court, learned Labour Court is justified and correct and that therefore the petitioner's objection against award is without merits. Learned advocate for the respondent also placed reliance on the decision in case of Ajaib Singh vs. Sirhind Co-operative Marketing-cum- Processing Service Society Ltd, AIR 1998 SC 1351. According to learned advocate for the respondent the award is just and proper and there is not error and the petition may be rejected.
Page 5
C/SCA/5328/2015 JUDGMENT
7. I have considered rival submissions and material on record.
7.1 In light of facts of present case, 3rd contention raised by learned AGP is not required to be considered in view of the fact that the legality and propriety of the award challenged in preset petition, can be and deserves to be decided in view of first two contentions raised by the petitioner against award. If the petitioner succeeds in first two contention, it will not be necessary to examine 3rd contention.
8. It has emerged from the award that
(a) it is not in dispute that the original claimant before learned Labour Court was engaged without following procedure for selection and recruitment;
(b) it is also not in dispute that the claimant was engaged on adhoc basis for temporary and casual work;
(c) it is also not in dispute that the claimant was engaged as daily wager and he worked on daily wage basis
(d) it is also not in dispute that the claimant was engaged intermittently and on need basis;
(e) even if unsubstantiated and bald allegation by the Page 6 C/SCA/5328/2015 JUDGMENT claimant are assumed to be correct then also total tenure of the claimant's engagement with the opponent employer would be only for 4 years (i.e. 1991 to 1995).
8.1 As against above mentioned details, another relevant aspect which also deserves to be taken into account and keep in focus is that in his statement of claimant the claimant has not mentioned the date on which he came to be engaged by the original opponent employer (i.e. present petitioner). The claimant has made bald and unsubstantiated allegation that he started working with the opponent from 1991.
8.2 Likewise, so far as termination is concerned, the claimant did not mention exact date on which the service came to be terminated by the opponent employer.
9. When the claimant challenges alleged termination on ground of breach of Section 25F and /or 25G and / or 25H of the I.D. Act, the date of termination acquires prominence and it gives vital importance in view of the fact that according to the said provision the issue as to whether employer committed breach of said provision should be Page 7 C/SCA/5328/2015 JUDGMENT decided on the basis of the date on which the alleged breach took place.
10. In view of specific provision under Section 25F as well as 25H of the I.D. Act, compliance of the condition / requirement prescribed by said provision have to be determined on the basis of the date of termination. 10.1 So as to establish and prove allegation about breach of Section 25 of I.D. Act it is necessary to establish the date on which the service came to be terminated and that the retrenchment compensation was not paid on the date of termination and appropriate notice was not issued or notice pay in lieu of notice was not paid on the date of termination. 10.2 The said compliance has to be completed on date of termination / before the termination becomes effective. 10.3 Likewise, whether the employer engaged any other person in place of concerned employee without first offering work to the concerned employee should be determined on the basis of and in light of the date of termination inasmuch as if some other person is appointed before the date of Page 8 C/SCA/5328/2015 JUDGMENT termination, then said action will not amount to and shall not constitute breach of Section 25H of I.D. Act. 10.4 In this view of the matter the exact date when alleged termination took place is very vital and the burden to prove said aspect i.e. date on which the service came to be terminated would be, at initial stage, on the workman.
11. In present case, the claimant failed to even mention the date on which his service came to be terminated and thereby he failed to prove said allegation. The claimant alleged that his service came to be terminated in 1995. In absence of any particular date on which the service came to be actually terminated, the issue related to alleged breach of Section 25F and 25H of I.D. Act could not have been decided effectively and in consonance with the provision under Section 25F and 25H of the I.D. Act.
12. While keeping in focus aforesaid defects in the employee's case it is necessary to take into account that in his statement of claim and so also in his evidence, the claimant alleged that his service came to be terminated in 1995.
Page 9
C/SCA/5328/2015 JUDGMENT
13. In this background, it is relevant to note that against said action of alleged termination of his service, the claimant raised dispute as late as in 2009 i.e. after almost 13 to 14 years.
13.1 Undisputedly concerned employee (claimant before learned Labour Court) did not offer any explanation with regard to cause for gross and inordinate delay of 13 to 14 years in raising the dispute.
13.2 Neither in his statement of claim nor even during his evidence, the claimant offered any explanation. The claimant failed to offer satisfactory explanation and to make out sufficient cause so far as gross delay of 13 to 14 years in raising dispute is concerned.
13.3 The petitioner as well as learned advocate for the petitioner tried to plead that the Act does not prescribe any period of limitation and that therefore the delay has no relevance. He also relied on the observation in case of Ajaib Singh (supra).
14. It would be appropriate, to consider the observation in Page 10 C/SCA/5328/2015 JUDGMENT cited decision in light of the observation in the decision by Hon'ble Apex Court in case of Prabhakar vs. Joint Director, Sericulture Department (2015) 15 SCC 1 wherein Hon'ble Apex Court observed that:-
"8. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averted that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service. there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearly self-serving. Pertinently. even the Labour Court has not accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate.
9. It may be stated that the question is of utmost importance as it is seen that many times. as in the instant case, the workers raise dispute after a number of years of the cause of action. Whether the dispute can still be treated as surviving? Or whether it can be said that the dispute does not exist when the workmen concerned after their say termination kept quiet for a number of years and thus acquiesced into the action?
20. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. The 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 a 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.
24. Again in Vazir Sultan Tobacco Co. Ltd. v. State of AR". the Andhra Pradesh High Court held that reference made nearly six years after in: dispute amounted to being inordinate, unreasonable and unjustifiable.
25. In Nedungadi Bank Ltd. v. KP. Madhavankutt'yl4 the Court cautioned that power of reference should be exercised reasonably and in a rational manner and not in a mechanical fashion. It was specifically observed the power to make reference cannot be exercised to revive settled matters or to refer stale disputes in spite of absence of statutory limitation period. The Court not only reiterated that the courts had power of judicial review. though to limited extent, but also made the following pertinent observations on delay: (SCC pp. 460-6l. Paras 6-8) "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Page 11 C/SCA/5328/2015 JUDGMENT Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.
7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.
8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court, In National Engg. Industries Ltd. v. State of Rajasthan" this Court observed: (SCC 13. 393, para 24) '24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act, Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference"
29. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/Industrial Tribunal to decide the same issue coming before it.
34. To understand the meaning of the word "dispute", it would be appropriate to start with the grammatical or dictionary meaning of the term;
Page 12
C/SCA/5328/2015 JUDGMENT
"Dispute'. to argue about, to contend for, to oppose by argument, to call in question - to argue or debate (with, about or over) -a contest with words; an argument; a debate; a quarrel;"
35. Black's Law Dictionary, 5th Edn., p. 424 defines "dispute" as under:
"Dispute-A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."
36. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of the petitioner on 1-4-1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for a number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after a lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workman did not raise any protest and did not demand his reinstatement, the employer presumed that the workman has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workman, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a "dispute" what had otherwise become a buried issue.
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 lnjunction appointment of Receiver, etc. These principles are also applied In the wit petitions tiled under Articles 32 and 226 of the Constitution of India In such cases, courts can still refuse relief where the delay on the petitioners part has prejudiced the respondent even though the petitioner might have 3 Come to court within the period preset abide by the Limitation Act.
40. Likewise, it a patty having a tight stands by and sees another acting in a manner inconsistent with that right and makes no objection while the ac is in progress he cannot afterwards complain This principle is based on the doctrine of acquiescence implying that In such a case the 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 loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other c 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 d sound public policy that if a person does not exercise his right for a long time then such a right is non-existent.
Page 13
C/SCA/5328/2015 JUDGMENT
42. On the basis of the aforesaid discussion, we summarise the legal position as under:
42.1. 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 2-A 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 f 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. 42.2. Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary Precondition. 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 elimination immediately thereafter or within reasonable time and raises the game after considerable lapse of period, whether it can be said that industrial dispute still exists. 42.3. 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 cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose 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. 42.4. 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 Section 2-A 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 a 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.
42.5. Take another example. A workman approaches the civil court by tiling a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the 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 the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
Page 14
C/SCA/5328/2015 JUDGMENT
42.6. 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 a when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse tr) 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.
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 0 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 ID 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 d applicable to proceedings under the ID 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 e arrangement and to avoid dislocation of an industry." (emphasis supplied) 14.1 In light of above quoted observation, at this stage the decision on which learned advocate for the petitioner placed reliance i.e. decision by Apex Court in case of Ajaib Singh (supra), may be considered.
14.2 In the said decision Hon'ble Apex Court observed that the provision under Article 137 of the Schedule to Limitation Act are not applicable to the proceedings under Industrial Disputes Act. Hon'ble Apex Court also observed that in case of delay, learned Labour Court can appropriately mould the relief e.g. by declining to grant backwages.
Page 15
C/SCA/5328/2015 JUDGMENT
14.3 The said observations by Hon'ble Apex Court are not to be construed to mean that the delay and laches should be completely ignored in all cases and / or that even gross delay of almost 13 to 14 years should be ignored, despite complete absence of any explanation with regard to the cause of delay. This aspect becomes clear from the observation by Hon'ble Apex Court in recent decision in case of Prabhakar (supra).
15. In case of regular and permanent workman, learned Labour Court would be, ordinarily justified in not rejecting the reference on ground of delay. However, the situation in case of daily wager, who are engaged on daily wage basis depending on exigency of work and on need basis, the position would stand on different footing.
16. In case where a daily wager raises industrial dispute after such gross delay, he, atleast, owes explanation to the Court as regards the cause for delay.
16.1 Such litigant should satisfy the Court that:-
(a) delay is not on account of indolence and negligence;
Page 16 C/SCA/5328/2015 JUDGMENT
(b) but it is no account of reasons and circumstances beyond his control; and
(c) in the interregnum the dispute was alive and he pursued his claim i.e. the dispute is not dead dispute.
16.2 The passage of such long period of almost 13 to 14 years would not only imply but would establish that the dispute is not alive and /or that the so called dispute is dead dispute and the claim raised by the claimant is stale claim.
16.3 The Court would not entertain and adjudicate the dead dispute and stale claim.
16.4 So as to satisfy the Court that during the interregnum i.e. during period of delay the dispute was alive and it is not dead dispute the claimant should satisfy the Court about the steps taken by him during the interregnum.
16.5 When the claimant does not mention anything about the cause for delay and does not offer any explanation worth its claim and maintain complete silence with regard to cause for delay and thereby does not demonstrate that the Page 17 C/SCA/5328/2015 JUDGMENT dispute is not dead dispute but it was alive through out interregnum, learned Labour Court would be justified in declining to grant any relief.
16.6 Though the Court, in absence of any provision prescribing time limit, may not dismiss the reference on the ground that it is time-barred but where the claimant fails to offer any explanation and also fails to satisfy the Court about the cause for delay and that he was unable on account of reasons beyond his control and where the delay seems to have occurred on account of indolence and negligence or the proceedings are initiated by way of an afterthought or where a chance or gamble is taken, then in such case the Court can refuse to grant relief.
17. In present case, relevant facts and issues are not in dispute inasmuch as the claimant alleged that his service came to be terminated in 1995. It is also not in dispute that he raised dispute in 2009 and appropriate government referred the dispute in 2009 and the interregnum is almost of 13 to 14 years. It is not in dispute that for such gross delay claimant did not offer any explanation.
Page 18
C/SCA/5328/2015 JUDGMENT
17.1 In this view of the matter, it is beyond doubt that the dispute was dead dispute and the claim raised by the claimant was stale claim.
17.2 In such circumstances, learned Labour Court should not have casually rejected or brushed aside the objection by present petitioner.
18. Now, second contention. In present case, learned Labour Court not only brushed aside employer's objection on ground of delay but learned Labour Court shifted entire burden with regard to delay on the shoulder of the employer with the observation that though the employer raised objection on ground of delay, the employer failed to place any evidence. When delay in raising dispute is caused by the employee, employer cannot be asked to lead evidence. 18.1 Besides this, the facts related to delay were, at least in present case, matter of record inasmuch as it is the claimant who alleged that his service came to be terminated in 1995 and appropriate government passed order of reference in February 1995.
Page 19
C/SCA/5328/2015 JUDGMENT
18.2 Thus, the said fact established that the dispute was raised after gross delay of almost 13 to 14 years and the employee's demand was hit by such gross delay as well as laches.
18.3 In this view of the matter, even otherwise there was no need of further evidence. In any case the obligation was not on the employer. Learned Labour Court committed error in throwing burden of proof / evidence on the employer.
19. Forgoing discussion and the observation by Hon'ble Apex Court in case of Prabhakar (supra), bring out that in present case learned Labour Court exercised jurisdiction with material irregularity and arbitrarily.
20. The facts have also established that the dispute and claim which the claimant sought to raise after delay of almost 13 to 14 years was dead dispute.
20.1 The fact that the daily wager before the Court was a person who could not even mention exact date on which his service came to be terminated and he came forward with bald and unsubstantiated allegations that the employer Page 20 C/SCA/5328/2015 JUDGMENT terminated his service in 1995 and when he also admitted during his evidence that during intervening period he was earning Rs.700 to Rs.800, was sufficient to demonstrate that it was only as an afterthought that he (i.e. the claimant) approached the Court with allegation that his service came to be illegally terminated way back in 1995 i.e. before almost 14 years.
20.2 Unfortunately learned Labour Court failed to consider above discussed aspects and the Court lightly and casually rejected the petitioner's objection.
20.3 In the case where the claimant did not raise dispute for almost 14 years, he would not be entitled for backwages for the said period even on principle of no work no pay and that therefore merely with the observation that backwges are not awarded, learned Labour Court ought not have rejected the petitioner's objection against inherent vice in the proceedings viz. delay of almost 14 years.
21. Such delay in raising dispute by daily wager, would render the demand for reinstatement unsustainable.
Page 21
C/SCA/5328/2015 JUDGMENT
22. In such cases, learned Labour Court ought to have also appreciated the fact that after passage of almost 16 years any employer would not be able to place relevant evidence on record.
22.1 Any employer would not maintain record or wage register for almost 16 years and that therefore such gross delay in raising dispute would act as a handicap against the employer who would be placed in difficult situation, if dispute / claim are raised after such gross delay, because for want of relevant document the employer would not be able to effectively defend the proceedings.
22.2 Such delay and initiation of proceedings after such gross delay is not only a handicap but it has crippling effect and it caused prejudice to the defendant 22.3 Unfortunately the Court failed to appreciate even this aspect.
22.4 On top of such handicap the Court would draw adverse inference if the employer fails to place documents on record before the Court. Thus, the defendant suffers on both Page 22 C/SCA/5328/2015 JUDGMENT counts.
22.5 As the learned Court decided the case by arbitrarily ignoring these aspects the award stands vitiated. 22.6 Even for the said reason the dispute raised after such inordinate delay ought not be entertained casually and the objection raised by the employer ought not be rejected when the employee fails to offer any explanation with reference to the delay caused in raising dispute. 22.7 Since in present learned Labour Court has overlooked above mentioned aspects, award is not sustainable. 22.8 Learned Labour Court has, as mentioned above, exercised jurisdiction with material irregularity. 22.9 In light of such facts and for foregoing reasons and in light of observations by Hon'ble Apex Court in case of Prabhakar (supra) the award deserves to be set aside.
23. Therefore, following order is passed:-
The award dated 12.6.2014 passed by learned Labour Court at Rajkot in Reference (LCR) No.32 of 2009 is set Page 23 C/SCA/5328/2015 JUDGMENT aside. Accordingly the petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
Orders accordingly.
Sd/-
(K.M.THAKER, J) SURESH SOLANKI Page 24