Jignesh Kanakray Joshi vs State Of Gujarat on 7 March, 2022

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Gujarat High Court

Jignesh Kanakray Joshi vs State Of Gujarat on 7 March, 2022

Bench: A.S. Supehia

     C/SCA/17671/2021                                      ORDER DATED: 07/03/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17671 of 2021
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                         JIGNESH KANAKRAY JOSHI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
TARUNA R MAKWANA(7255) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 07/03/2022
                                  ORAL ORDER

1. The present petition has been filed inter alia seeking quashing and setting aside the order dated 31.01.2020 passed by the Labour Court, Junagadh in Reference (T) No.51 of 2017 rejecting the reference of the petitioner.

2. At the outset, learned AGP Mr.Rohan Shah has submitted that the impugned award does not required any interference since the reference is precisely rejected on the ground of delay as the dispute has been raised after a period of 11 years. He has submitted that even the present writ petition is filed, after a delay of more than 1.5 years.

3. A specific query raised by this Court to the learned advocate Ms.Taruna Makwana appearing for the petitioner whether the petitioner-workman has kept the dispute alive all these years. She has conceded that the first complaint against the termination was made on 11.08.2017 by the Page 1 of 6 Downloaded on : Wed Mar 09 21:21:12 IST 2022 C/SCA/17671/2021 ORDER DATED: 07/03/2022 petitioner and the petitioner-workman does not have any documentary evidence to prove that he has kept the dispute alive.

4. In the present case, it is the case of the petitioner that he was illegally terminated orally on 21.09.2006. It is submitted that he was working as a daily wager and appointed on 01.02.2001 and without issuing any notice, his service has been terminated. After his termination, the petitioner, for the first time raised the dispute by filing a complaint on 11.08.2017. The dispute was referred on 31.01.2018 by the Labour Court, which culminated into Reference (LCJ) No.51 of 2017. By the order dated 31.01.2020, the Labour Court has rejected the reference on the ground of delay. The Labour Court, after referring to the various judgements of the Apex Court as well as this Court has rejected the reference proceedings.

5. At this stage, it would be apposite to refer to the decision of the Supreme Court on the aforesaid decision in the case of Prabhakar vs. Joint Director Sericulture Department, AIR 2016 SC 2984, on which reliance is placed by the Labour Court. The Apex Court, after survey of various judgments on the issue, has held thus:-

"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 Page 2 of 6 Downloaded on : Wed Mar 09 21:21:12 IST 2022 C/SCA/17671/2021 ORDER DATED: 07/03/2022 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 injunction, appointment of Receiver, etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of the Constitution of India. In such cases, courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to court within the period prescribed by the Limitation Act.

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C/SCA/17671/2021 ORDER DATED: 07/03/2022

40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This 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 XXXXX 42 XXXXX 42.1 XXXXX 42.2. XXXXX 42.3. XXXXX

43. XXXXX

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 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 arrangement and to avoid dislocation of an industry."

6. Thus, the Supreme Court has held that though there is no limitation prescribed under the Limitation Act, 1963 for making a reference under Section 10(1) of the Industrial Disputes Act, 1947 (I.D. Act) yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. It is further held that 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. It is held Page 4 of 6 Downloaded on : Wed Mar 09 21:21:12 IST 2022 C/SCA/17671/2021 ORDER DATED: 07/03/2022 that in case unexplained delay, the workman can be said to have acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination and 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. The Apex Court has also referred to doctrine of laches is in fact an application of maxim of equity " delay defeats equities", and finally it is held that "although there is no limitation prescribed under the I.D. Act for making a reference under Section 10(1) of the I.D.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) of the I.D. Act do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the I.D. 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".

7. The petitioner is unable to show that for 11 years, he had kept the dispute alive. No material is produced which can convince this Court that the petitioner has kept on agitating his alleged wrongful termination for 11 years. Hence, this Page 5 of 6 Downloaded on : Wed Mar 09 21:21:12 IST 2022 C/SCA/17671/2021 ORDER DATED: 07/03/2022 Court does not find any illegality or perversity in the order dated 29.11.2021 passed by the appropriate authority.

8. The petition is summarily rejected. Rule is discharged.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA Page 6 of 6 Downloaded on : Wed Mar 09 21:21:12 IST 2022

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