Gujarat High Court
R.D. Turi vs Union Of India (Uoi) on 25 March, 2005
JUDGMENT Sharad D. Dave, J.
1. By way of filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dtd.16/3/1999 passed by the respondent No. 1 denying to make Industrial Reference on the ground that the dispute has been raised after a lapse of more than 10 years without any justification for the long delay and hence frivolous and stale.
2. As per the say of the petitioner, the petitioner was working as Extra Departmental Agent in the office of the respondent No. 3 since last 10 years. In the year 1985, the petitioner was chargesheeted for minor offence such as teared stationary, broken seals at Postal Bags etc. However, the petitioner was served with the charge sheet for a major penalty and removed from service after predetermined and prejudicial inquiry on 25/11/1988, without serving order upon the petitioner. The petitioner, thereafter, filed a departmental appeal, wherein the Superintendent of Police - respondent NO. 3 rejected the appeal vide order dtd.20/2/1989, but the petitioner was not informed accordingly. Thereafter the petitioner made several representations to the respondents including the respondent No. 3. The petitioner made representations almost thrice in a year. The petitioner made last representation in September 1997 to various authorities. Pursuant to which, the Secretary vide letter dtd.15/9/1997 informed the petitioner that the representation made to the respondent No. 3 is under the control of the Central Government and forwarded to the Central Government. Thereafter also, the petitioner made several representations to the concerned authorities, but the same have not been replied. The petitioner being poor person, coming from the lower strata of the society i.e. Scheduled Tribes. The petitioner filed a dispute against his illegal termination before the respondent No. 1 on 2/9/1998, but the conciliation officer submitted failure report on 10/2/1999 and therefore, the respondent No. 1 declined to refer the dispute to the Industrial Tribunal vide order dtd.16/3/1999 on the ground that the dispute has been raised after a lapse of more than 10 years without any justifiable reasons for the long delay and hence frivolous and stale.
3. The learned counsel for the petitioner has mainly argued that the respondent No. 1 has no authority to decide and adjudicate the dispute and the dispute cannot be rejected on the ground of delay as per the settled law and hence the impugned order is without jurisdiction. The dispute is required to be referred for adjudication.
4. Learned counsel for the petitioner has further argued that the Government has no jurisdiction to pass order refusing to make Reference on the ground of delay. It is the Competent authority has to only find out that whether any dispute existed, which would be termed as industrial dispute and if he found that the dispute exist, it was incumbent upon him to refer the matter to the Industrial tribunal for adjudication.
5. Learned counsel for the petitioner has further argued that the Government acted beyond the jurisdiction by declining to make reference regarding the dispute raised by the petitioner. He has further argued that it is well settled law by now that on the ground of delay, Reference cannot be denied to the workman. He has also placed reliance on several decision in this connection, which will be referred to in the due course of the judgment.
6. Mr. Dipak Dave, learned counsel for the petitioner has placed reliance on in the case of Kheda Jilla General Mazdoor Mandal Vs. State of Gujarat and Ors. reported in GLH 1995 (2) (U.J. 9). Head Note C of the said decision reads as under;-
"(C) Limitation Act, 1963 - Art. 113 Act does not apply to proceedings under Industrial Disputes Act, 1947 - Appropriate Government is not a Court."
In para 3 of the said decision, the Court has observed as under;-
"As held by the Supreme Court in the case of Nityanand v. L.I.C. of India, reported in AIR 1970 SC, page 209, the Limitation Act does not apply to the proceedings under the Industrial Disputes Act, 1947. Moreover, the appropriate Government is not a court to which the provisions of Limitation Act can be made applicable. In view of this position of law, the appropriate Government has committed grave error in relying upon the provisions of the Limitation Act and refusing to refer the dispute to the appropriate forum. It is true that there is some delay in raising the dispute. But delay alone is no ground for refusing to make reference. Mere lapse of time is not a relevant circumstances. It should further be shown that on account of lapse of time, certain rights have been accrued to the other side and on account of the dispute being raised and on account of accrual of such rights, the relief that may be prayed for by the petitioner are not capable of being granted without causing serious prejudice to the other side. This is the view taken by the Supreme Court in the case of Deh Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur reported in AIR 1993 SC page 802. Be it noted that in this case appropriate Government is not required to consider whether the relief is to be granted or not. While making reference the appropriate Government has only to see as to whether there is genuine dispute or not. If there is dispute or apprehended dispute, the function of appropriate Government is to make reference. This view is taken by the Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh v. State of Bihar reported in AIR 1989 SC 1565."
7. Mr. Dipak Dave, learned counsel for the petitioner has also placed reliance in the case of Ajib Singh, appellant v. The Surhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr., reported in AIR 1999 SC 1351. Head note-A of the said decision reads as follows;-
"(A) Industrial Disputes Act (14 of 1947), S. 10 - Limitation Act (1963), Art.137 - Reference of dispute of Labour Court - Provisions of Art.137 of Limitation Act do not apply - Delay of 7 years shown to be existing and admitted by the workman - Court can mould relief by refusing back wages or directing payment of part of back wages."
In para 10 of the said decision, the Court has held as under;-
"10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court or board, dealing with the case can appropriately mould the relief by declining to back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages."
8. Mr. Samir Dave, learned Additional Standing Counsel for the respondent Nos. 1 and 2 have argued that different view has been taken by the Court on the controversy involved in this petition and hence appropriate order may be passed.
9. Mr. Bipin Mehta, learned counsel for the respondent No. 3 has vehemently opposed this petition and relied upon the decision on the decision of this Court in the case of Saurashtra Employees Union vs. Sub-Divisional Officer, reported in 2000 (2) GLR 1259. Head Note of the said decision reads as under;-
"Industrial Disputes Act, 1947 (XIV of 1947) Sec. 10 - It is true a just claim of a labourer should not be denied on the ground of delay, yet the Government would be justified in refusing to make a reference to a Labour Court, if there is unexplained inordinate delay."
10. Having heard the learned counsel for the respective parties, considering the material on record and in the facts and circumstances of the case, it is clear that the Apex Court in the case of Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr., (Supra) has held that the provisions of Article 137 of the Schedule to the Limitation Act are not applicable to the Industrial Disputes Act and the relief cannot be denied to the workman merely on the ground of delay. Similar view has been taken by the Apex Court in the case of the Surhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr. (Supra)
11. In view of the aforesaid, and in view of the decisions which have been cited by Mr. Dipak Dave, learned counsel for the petitioner, this petition deserves to be allowed and the same is accordingly allowed. The impugned order dtd.16/3/1999 (Annexure-C) passed by the respondent NO. 1 is quashed and set aside. Rule is made absolute with no order as to costs. The State Government is directed to make Reference of the dispute raised by the petitioner to an appropriate Industrial Tribunal within a period of THREE MONTHS from the date of receipt of writ of this order.