Karnataka High Court
Sri B Ankaraju vs Government Of India on 31 January, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 17986 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31STDAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 17986 OF 2012 (L-TER)
BETWEEN:
SRI B ANKARAJU
AGED ABOUT 50 YEARS
S/O BASAVAIAH
RESIDING AT ARAVANAPURA STREET,
MADUVANAHALLI, KOLLEGAL TALUK
CHAMARAJNAGAR DIST.
...PETITIONER
(BY SRI. S B MUKKANNAPPA.,ADVOCATE)
AND:
1. GOVERNMENT OF INDIA
MINISTRY OF LABOUR,
NEW DELHI
REPRESENTED BY ITS UNDER SECRETARY
Digitally signed 2. THE NEW INDIA ASSURANCE COMPANY LTD.,
by REGIONAL OFFICE,
NARAYANAPPA 2B, UNITY BUILDING ANNEXE,
LAKSHMAMMA P.KALINGA RAO ROAD,(MISSION ROAD),
Location: HIGH BANGALORE-560027.
COURT OF REPRESENTED BY ITS GENERAL MANAGER
KARNATAKA
...RESPONDENTS
(BY SRI. MADANAN PILLAI R, CGC FOR R1;
SRI. SHUBHAM N.M. ADVOCATE FOR
SRI. B.C. SETHARAMA RAO, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF TH CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED EENDORSMENT
BEARING NO. L-17012/26/2011-IR(M) DATED 27.4.2012 ISSUED BY
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WP No. 17986 of 2012
THE 1ST RESPONDENT VIDE ANNEXURE-E TO THE WRIT PETITION
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs;
a. Issue a writ in the nature of quashing the impugned endorsement bearing No.L-17012/26/2011-IR(M) dated 27.4.2012 issued by the 1st respondent vide Annexure-E to the Writ Petition, under the facts and circumstances of the case;
b. Issue a writ in the nature of mandamus directing the 1st respondent to refer the dispute to the jurisdictional Industrial Tribunal-cum-Labour Court for adjudication of the Order of dismissal passed by the 2nd Respondent forthwith, under the facts and circumstances of the case; and c. Issue any other appropriate order or orders or direction as this Hon'ble court may deems fit to grant by considering the facts and circumstances of the case, in the interests of justice and equity.
2. The petitioner was an employee of the respondent No.2 working as Development Officer. The petitioner was dismissed from service vide order dated 14.10.2004, this was challenged by petitioner filing an appeal before the Appellate Authority which came -3- WP No. 17986 of 2012 to be dismissed on 4.10.2006. Thereafter, on 1.2.2011 that the petitioner raised a Industrial Dispute, written statement having been filed thereto and rejoinder has been filed by the petitioner, the matter was referred to the conciliation, conciliation officer had submitted a report on 7.7.2011, that conciliation has failed the appropriate Government issued an endorsement on 27.4.2012 rejecting the request of the petitioner for reference on the ground of the dispute has been raised belatedly after more than seven years.
3. Sri. S.B.Mukkannappa., learned counsel for the petitioner would submit that the appropriate Government did not have the power to adjudicate on the delay or otherwise more so when adequate statements have been made by the workman explaining the delay. Since such an explanation has been given it should have better been left to the Labour court to decide on the matter. It is in that background he submit that the matter may be -4- WP No. 17986 of 2012 remitted to respondent No.1 for fresh the consideration and reference be made to the Labour Court.
3.1. He relied upon the decision of the Hon'ble Apex Court in Kuldeep Singh vs. Instrument Design Development & Facilities Centre1, more particularly para 19 and 21, thereof which are reproduced hereunder for easy reference:
19. We have already pointed out that there is no limitation prescribed in the Act or in any other local Act prescribing such period. We have also referred to the materials placed by the workman. By making various representations from the day when his services were terminated and till his last representation dated 16-7-1996 to the Manager, HARTON, Chandigarh the workman has proved that he was agitating his termination one way or the other with all the authorities concerned. The particulars furnished clearly show that the appellant workman was fighting for his cause before the management as well as with the State Government including the Chief Secretary and the Minister of the Department concerned. Ultimately, the State Government has made a reference on 22-11-
1999 to the Labour Court for adjudication.
21. In view of the above, law can be summarised that there is no prescribed time- limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, 12011(1) LLJ 615 -5- WP No. 17986 of 2012 if any industrial dispute exists or is apprehended, the appropriate Government "at any time" refer the dispute to a board or court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or forum for adjudication.Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along -6- WP No. 17986 of 2012 hoping that one day his grievance would be considered by the management or by the State Government.
3.2. He relied upon the decision of the Hon'ble Apex Court in Ariane Orgachem (P) Ltd. Vs. Wyeth Employees Union2, more particularly para 32 and 33 thereof which are reproduced hereunder for easy reference:
32. Further, the High Court has rightly adverted to various judgments of this Court including Bombay Union of Journalists v. State of Bombay [AIR 1964 SC 1617] wherein it was held thus:
(AIR pp. 1621-22, para 6) "6. ... it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is 22015 (7) SC 561 -7- WP No. 17986 of 2012 entitled to make in dealing with a dispute under Section 10(1)...."
33. Therefore, in the present case, the dispute raised by the respondent Union on behalf of the workmen concerned is neither patently frivolous nor is it a belated claim of the workmen concerned. The contention of the learned Senior Counsel for the appellant that the workmen are barred from raising the industrial dispute on the ground of estoppel, is also rejected by this Court in view of the fact that estoppel is a principle of equity which deals with the effect of contract and not with its cause. It does not mean that a void or voidable contract cannot be adjudicated by the Industrial Tribunal/courts merely because the workmen concerned have accepted the voluntary retirement as pleaded by them and other benefits from the appellant as per National Insurance Co. Ltd. [(2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] 3.3. He relied upon the order of this Court inH.D. Ningegowda vs. The Assistant Labour Commissioner (Central)3 more particularly para 3 and 4 thereof which are reproduced hereunder for easy reference:
3. The petitioner was engaged by respondent No.3 on13.08.1990 on daily wage basis as a peon cum sweeper and hisservices were continued up to 31.03.2011 without anyinterruption. His services were terminated on 01.04.2011. Onreceipt of order of termination, he had filed application underSection 10 read with Section 2A of the Industrial Disputes Act,1947 on 13.08.2015 before Assistant Labour Commissioner cumConciliation Officer (Central) 3WP No.51408/2016 -8- WP No. 17986 of 2012 at Bengaluru whereascommunication has been made by Assistant LabourCommissioner (Central) at Bengaluru that petitioner's applicationdated 13.08.2015 is time barred for more than four years.Hence, petitoner's application was returned. Feeling aggrieved bythe endorsement dated 17.08.2015, petitioner presented thispetition.
4. Undisputed facts are that petitioner's service wereterminated on 01.04.2011 which was subject matter before theAssistant Labour Commissioner and Conciliation Officer, (Central)at Bengaluru. There is delay of four years in presentingapplication. Assistant Labour Commissioner and ConciliationOfficer (Central) at Bengaluru is empowered to condone thedelay in respect of grievance of the petitioner. In this regard,4petitioner is permitted to file additional application forcondonation of delay. Based on such application, the AssistantLabour Commissioner cum Conciliation Officer (Central) atBengaluru is hereby directed to take note of reasons forcondonation of delay and the same shall be considered and passafresh order. Accordingly, impugned endorsement dated17.08.2015 vide Annexure-F passed by respondent No.1-TheAssistant Labour Commissioner (Central) stands set aside,Petitioner is hereby directed to file I.A. for condonation of delayin prosecuting application under Section 10 read with Section 2Aof the Industrial Disputes Act, 1947 within a period of four weeksfrom the date of receipt of this order, writ petition standsallowed.
The Assistant Labour Commissioner (Central) to passafresh orders within a period of three months from the date ofreceipt of this order. -9- WP No. 17986 of 2012
4. Learned counsel for respondent No.2 would however submit that whenever there is claim which has been lodged belatedly the appropriated Government would be liable to right to reject the reference and in this regard he relies upon the decision of the Hon'ble Apex Court in Prabhakar vs. Joint Director Sericulture Department and Ors4, more particularly para 40 and 42 thereof which are reproduced hereunder for easy reference:
40. On the basis of the 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 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 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 42015(15) SCC 1
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administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.Dispute or difference arises when one party 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 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 exists.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.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
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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.Take another example. A workman approaches the civil court by filing 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.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.
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42. 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.
5. On the basis of the above he submits that the dispute need to be live and existing on the workman ought not to have abundant his claim, there is no dispute which is live and existing since the workman as accepted the order of Appellate Authority and as such order passed by the appropriate Government rejecting the reference is proper and correct does not required any interference.
6. Sri. MadananPillai.R, adopt the submission of learned counsel for respondent No.2 and further submits that
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WP No. 17986 of 2012the appropriate Government has necessary pass to either refer or not to refer the belated case.
7. Heard Sri. S.b.Mukkannappa, leanred counsel for the petitioner and Sri. MadanaPillai.R., CGC for respondent NO.1 and Sri. Shubhanm N.M., learned counsel for respondent no.2. perused the papers.
8. Short question that would arise for the consideration of this Court is whether the appropriate Government can refuse to reference merely on the ground that the dispute raised is belated. From reading of the above said decision is clear that there is no power to vested with the appropriate Government to adjudicate as regard the limitation aspects including the belated nature of raising of the dispute. It is only in certain cases that, if there is undue and unexplained delay which may give raise to the situation or accepting the relationship between the employer and the workman that the appropriate Government can refuse a reference. The
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WP No. 17986 of 2012Prabhakar'scase relied upon by counsel for respondent No.2 was one were the workman had been dismissed from the service on 1.4.1985 and for the first time a dispute was raised in the year 199 after a period of 14 years and during this time there was no notice served on the management questioning the validity of the termination. Late on, any proceeding having been initiated on facts that the decision rendering by the Hon'ble Apex Court for the Prabhakar's case (supra) differ frompresent case, in as much as in the present case the workman was dismissed from the service on 14.10.2004 which came be challenged by him before the Appellate Authority which dismissed on 4.10.2006 and it is on the ground of financial inability of the workman that he has contented he could not raised a Industrial Dispute until February 2011. When the issue of limitation or latches was raised by the employer in his written statement, the workman in his rejoinder as also categorically stated that the this issue would
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WP No. 17986 of 2012have to be left open to the Labour Court to decide and should not be adjudicated by the appropriate Government. Despite the said submissions being on record the respondent No.1 has issued a endorsement refusing to refer the matter solely on the ground that the dispute raised belatedly. There is no reasoning given in the said order dealing with the submissions or statements made by the workman that he was unable to raise the issued on account of financial stringency and/or that the appropriate government did not have a power to refuse the reference on the ground of the dispute being belateded.
9. Considering that the workman had been prosecuting the matter from the year 2004 till the year 2006 before the Appellate Authority and thereafter raised a Industrial Disputed on 1.2.2011 which is much more favourable to the workman than that in prabhakars case, where no action was taken from 1.4.1985 till
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WP No. 17986 of 2012the year 1999 for the period of 14 years. I am of the considered opinion that the said decision would not be applicable to the present case. The Apex Court in Kuldeepsingh's case (refer to supra) as clearly held that there is no prescribed time limit for the appropriate government to establish the powers under Section 10 and if a Industrial Dispute exists the appropriate Government at any time can refer the matter to the Court for enquiry. This being so, since reference sought for cannot be denied on account of no period of limitation being prescribed under section 10 of the Act.
10. In view of the above discussion and reasoning, I am of the considered opinion that the order passed by the appropriate government does not stand the best/test of law and required to be quashed. As such I pass the following;
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WP No. 17986 of 2012ORDER i. A certiorari is issued. The endorsement bearing No. L-17012/26/2011-JR(M) dated 27.4.2012 at Annexure-E is hereby quashed.
ii. The matter is remitted to the respondent No.1 to consider the matter as fresh and pass necessary orders referring the matter to the Industrial Tribunal from the Labour Court. It is made clear that this Court has not express any opinion including the period of limitation and the Labour Court would be entitled to decide the same on the basis of submission made before the Labour Court.
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JUDGE SR List No.: 1 Sl No.: 39