Gujarat High Court
State Of Gujarat vs Dhirubhai Ravatbhai Dhranga on 10 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/16935/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16935 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 9523 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 16735 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
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STATE OF GUJARAT
Versus
DHIRUBHAI RAVATBHAI DHRANGA & 1 other(s)
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Appearance:
MR NIKUNJ KANARA, ASST. GOVERNMENT PLEADER(1) for the
Petitioner(s) No. 1
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/01/2020
COMMON ORAL JUDGMENT
1. All the petitions since involve identical questions of law and facts, they are being decided by this common judgment & order, where the facts are drawn from Special Civil Page 1 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT Application No.9523 of 2015 for the purpose of adjudication.
Brief facts:
2. The petitionerState seeks to challenge the legality & validity of the judgment and award dated 15.12.2014 passed in Reference (LCR) No.126 of 2007 by the learned Presiding Officer, Labour Court, Rajkot, whereby the Court has granted the reinstatement to the workman without back wages along with the continuity of service within a period of 30 days.
2.1 The respondentworkman was engaged with the petitioner department on daily wages between 01.11.1995 to 30.10.1999. Alleging the breach of Sections 25 F, 25 G & 25 H of the Industrial Disputes Act, 1947 ("the I.D.Act" hereinafter), the respondent approached the Assistant Labour Commissioner, Rajkot, which then referred the matter to the Labour Court and accordingly the Reference No.126 of 2007 came to be lodged. The statement of claim had been presented by the Page 2 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT respondent, which had been replied to by the written statement emphasising that the the respondent had been engaged on a daily waged basis. The Labour Court allowed both the sides to adduce the evidence and eventually, granted the relief as mentioned hereinabove.
2.2 The challenge is made by the State essentially on the ground that the judgment and award is illegal and erroneous as well as perverse. It has been given without taking into account the oral as well as documentary evidence. The respondentworkman was temporarily engaged as a part time employee by the petitioner for the period between 01.11.1995 to 30.10.1999 and he has worked only for 03 hours. He has not even completed 240 days in any of the preceding years and therefore, the relief granted by the Court is impermissible. There are no sanctioned post moreover, the engagement of the employee was contrary to the well laid down law on the subject. Accordingly, the prayers sought for are Page 3 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT as follow:
"8...
(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may be pleased to issue a writ of certiorari and/or any other appropriate writ, direction or order for quashing and setting aside the impugned judgment and award dated 15.12.2014 passed in Reference (L.C.R.) No.126 of 2007 and by the Learned Presiding Officer, Labour Court, Rajkot, in the interest of justice;
(C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the implementation, execution and operation of the impugned judgment and award dated 15.12.2014 passed in Reference (LCR) No.126 of 2007 by the Learned Presiding Officer, Labour Court, Rajkot, in the interest of justice;
(D) Such other and further relief as may be just, expedient and proper in the interest of justice."
3. Affidavitinreply of respondent No.1 denying all the averments is to an effect that no interference is desirable. He has worked between Page 4 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT 01.11.1995 to 31.10.1999 as a daily wager at the Dam site. The delay of 09 years which has been raised as one of the disputes has also been answered in various matters. It is also the say of the respondent that the petitioner had been directed to produce the muster roll, salary vouchers and all other relevant materials. However, it has failed to produce the same and therefore, at this stage, no new case can be made out. It is also the say of the respondent that the adverse inference needs to be drawn against the employer in whose custody all the documents are lying and yet, has failed to produce the same. The workman has already explained the delay of 09 years in approaching the Labour Court, which also has been regarded by the Labour Court and has awarded the continuity without back wages. The case of the respondent is covered by the decision of this Court in Special Civil Application No.20706 of 2018 and other matters.
4. Affidavitinrejoinder is filed by the Deputy Page 5 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT Executive Engineer, who has not admitted any of the content of the affidavitinreply. It has also further stated that he has worked only for a span of 45 days and has raised the industrial dispute after a gross delay of 09 years. The petitioner has also furnished the necessary details qua the numbers of the day on which the respondentworkman was present. The Labour Court passed an order granting reinstatement with continuity of service, where it ought to have considered that the period of his working was merely of 45 days. The gross delay has also remained unexplained, which has not been dealt with at all by the court concerned. What has been explained by the workman that he was not aware of the legal remedies, and only when he came to know about the similarly situated workmen residing in the village getting the favourable orders and judgments, he filed the impugned proceedings, which hardly could be the ground to be held sustainable. Moreover, even for substantiating this ground nothing has come forth on the record, Page 6 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT thus it is urged that the Reference is barred by limitation.
4.1 In relation to the nonproduction of the documents pertaining to the attendance, it has been stated that the respondentworkman was provided with the details of the days for which he remained present. According to the respondent workman, each matter will have to be considered on its own strength & no generalised law can apply.
Oral Submissions:
5. This Court has heard both the sides extensively. Learned Assistant Government Pleader, Mr.Nikunj Kanara, has emphatically submitted to this Court that the delay of 09 years is a huge delay, which ought not to have been condoned by the Court below. He has further submitted that if the person has worked as a daily wager only for a short period of 45 days in three years, at the best, the trial Court could have granted the lumpsum compensation, but, grant Page 7 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT of reinstatement with continuity of service is hardly an answer to the issue raised before it. He has also urged that the engagement of the workman was for the purpose of the Dam site and that too, without following the procedure which has been well laid down for recruitment. The case of Umadevi vs. Union of India and those which are followed thereafter, very clearly directed the authority not to overreach the process by engaging someone without following the due process.
5.1 According to the learned Assistant Government Pleader, permitting any relief to the respondent would tantamount to defeat the rights of many. He has further urged that the delay of 09 years is not at all explained and the explanation which come forth is not sustainable.
5.2 Reliance is placed on the following decisions by the learned Assistant Government Pleader to substantiate his oral version: Page 8 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020
C/SCA/16935/2015 JUDGMENT (1) RASHTRASANT TUKDOJI MAHARAJ TECHNICAL
EDUCATION SANSTHA, NAGPUR VS. PRASHANT MANIKRAO KUBITKAR, reported in AIR 2017 SCC 2482 (2) STATE OF JAMMU AND KASHMIR VS. R.K.ZALPURI AND OTHERS, reported in (2015) 15 SCC 602
6. Per contra, learned advocate, Ms.Ashlesha Patel has fervently urged this Court that the delay has been well explained by the respondent. The respondentworkmen hails from the kind of socioeconomic background, where they would not be aware of the remedies under the law. She has also urged that the delay of 09 years has been not only been sufficiently explained, but also has been accepted by the Labour Court at the time of adjudicating the disputes of the parties. She has further urged that this Court in Special Civil Application No.20706 of 2018 and other matters has allowed the gross delay when it found the satisfactory explanation. She has further requested that as far as possible in a petition Page 9 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT under Articles 226 and 227 of the Constitution of India, the Court needs to interfere when the judgment and award is reflecting perversity or gross illegality. Heavy reliance is placed on the various decisions to urge that any new case if is made out at the time of approaching this Court under Articles 226 and 227 of the Constitution of India, the Court need not regard the same. It is lamented that though directed by the trial Court to the petitioner, the petitionerauthority has chosen not to adduce necessary material before the Labour Court, which could have been regarded at the relevant point of time & that itself should be the ground not to believe the version of the petitioner. It has already misused the opportunity to adduce the same at an appropriate juncture.
7. Having thus heard the learned advocates on both the sides, at the outset, the decisions sought to be relied upon by the parties deserve consideration for the purpose of adjudication. Page 10 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020
C/SCA/16935/2015 JUDGMENT Scope of Judicial Review: 8. Firstly, taking up the scope of judicial review, decision in case of ISWARLAL MOHANLAL
THAKKAR VS. PASCHIM GUJARAT VIJ COMPANY LIMITED AND ANOTHER, reported in (2014) 6 SCC 434 shall need consideration. The Apex Court while considering the scope of judicial review under Articles 226& 227 of the Constitution of India with reference to the interference with the findings of the Labour Court/Tribunal, has held that only in case of error of jurisdiction or serious error of law apparent on record or judgment not based on the evidence, the High Court would have jurisdiction, otherwise, it is not for this Court to re appreciate the evidence to form its own view and record findings on contentious issues. In a matter before the Apex Court, it found that the Labour Court's award was based on proper appreciation of evidence and cogent reasons. Relevant findings and observations of Hon'ble Supreme Court are Page 11 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT reproduced as under:
"15. . We find the judgment and award of the labour court wellreasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice.
16. It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil[1], with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that "The power of interference under Art.227 is to be Page 12 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court." It was also held that "High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it."
Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.
17. In the case of Harjinder Singh v. Punjab State Warehousing Corporation[2], this Court held that, "20......In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation."
18. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order Page 13 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors.[3], this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland[4], wherein it is stated that : "...Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed.
As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."
9. In case of SYED YAKOOB VS. K.S.RADHAKRISHNAN & OTHERS, reported in AIR (1964) 477, the Apex Page 14 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT Court held that the writ of certiorari was issued for correcting the errors of jurisdiction committed by the courts or tribunals, in cases where the trial Court exceeds its jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to the principles of natural justice. The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at by the inferior court or tribunal arc binding. An error of law apparent on the face of the record can, however, be corrected by a writ of certiorari, but not an error of fact however grave it may appear to be.
10. The Apex Court in case of R.M.YELLATI VS. THE ASST. EXECUTIVE ENGINEER has also reiterated the very mandate, where the Court held that it is Page 15 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT trite that th High Court while exercising the powers of judicial review would not interfere with the discretion of the tribunal, unless the same is found to be illegal and irrational. 10.1 Considering the ratio in these decisions, they very clearly lay down the law as to how the Court in its jurisdiction under Articles 226 and 227 shall need to act. It is made clear that this being a supervisory jurisdiction and not appellate jurisdiction unless the error of law is apparent and there is outright illegality noticed in the judgment of the tribunal or the Labour Court or when the trial court acts without jurisdiction, the power of judicial review is not to be exercised. These powers are to be exercised judiciously and to meet with the ends of justice very sparingly and curiously.
Issue of Limitation:
11. This issue has been pressed into service by Page 16 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT the petitioner emphatically relying essentially on the judgment in a case of AJAIB SINGH VS. SIRHIND COOP.MARKETINGCUMPROCESSING SERVICE SOCIETY LTD AND ANR where the service of the appellant workman was terminated by the respondentmanagement allegedly without compliance of the mandatory provisions. The dispute regarding his termination of services was referred to the Labour Court by the appropriate government. The jurisdiction of the Labour Court to entertain and adjudicate the reference was also disputed. Not pleaded with the award of the Labour Court, the management filed a writ petition in the High Court praying for quashment of the award of the Labour Court mainly on the ground of the workman approached the court for the grant of the relief after a prolonged delay.
12. The learned Single Judge held that the workman was not entitled to any relief as he was allegedly shown to have slept over the matter for 7 years and confronted with the management at a Page 17 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT belated stage when it could be difficult for the employer to prove the guilt of the workman. This had been upheld by the Division Bench in the Appeal.
12.1 When challenged before the Apex Court, the Court noticed that it is not in dispute that the service of the respondent was terminated on 16.7.1974 and he had issued the notice of demand only on 08.12.1981. No plea regarding delay appeared to have been taken by the management before the Labour Court. The Apex Court also acknowledged that Article 137 of the Limitation Act has not been specifically made applicable to the proceedings under the Act seeking reference of industrial disputes to the Labour Court. The Apex Court, in no case, has so far held that either Article 137 of the Limitation Act or the principle incorporated therein is applicable to the proceedings under the Act. The Court also had considered as to under what circumstances the act was enacted and what was the objectives sought to Page 18 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT be achieved by the said legislation. It held that the object is to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the patties. It is a piece of legislation providing and regulating the service conditions of the workers and the object of the Act is to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life. Again, by the process, the object is to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The object of the Act, therefore, is to give succour to weaker sections of the society which is a pre requisite for a welfare State. To ensure industrial peace and preempt industrial tension, the Act further aims at "enhancing the industrial production which is acknowledged to be lifeblood of a developing society. The Act provides a machinery for Page 19 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT investigation and settlement of industrial disputes ignoring the legal technicalities with a view to avoid delays, by specially authorised courts which are not supposed to deny the relief on account of the procedural wrangles. The Act contemplates realistic and effective negotiations, conciliation and adjudication as per the need of the society keeping in view the fast changing social norms of the developing country like India..." The Apex Court, therefore, held that the provision of Article 137 of the Limitation Act, 1963 would not be applicable to the proceedings under the Act and 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 the real prejudice and not as a merely hypothetical defence. The Court has held that no reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, Labour Court or board, Page 20 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT dealing with the case can appropriately mould the relief by declining to grant 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. The Court upheld the award of the Labour Court with modification.
13. In another decision of the Apex Court rendered in case of SHAHAJI VS EXECUTIVE ENGINEER, P.W.D.,reported in (2005) 12 SCC 141 was also on the ground of the delay in making the reference by the appropriate Government after several years. Reliance is placed on the decision of Ajeb Sings (supra).
14. In the matter before the Apex Court there was no ground of delay urged by the management. The Court after referring to the decision of Ajeb Sings (supra) has held that even if there was a Page 21 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT delay in making the reference to the Labour Court if it came to the conclusion that the termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of the delay.
15. In case of S.M.NILAJKAR AND ORS VS. TELECOM, DISTRICT MANAGER, the number of workers were engaged as casual labourers for the purpose of expansion of telecom facilities in the District of Belgaum during the years 198586 and 198687. The services of these workers were utilized for digging, laying cables, erecting poles drawing lines and other connected works and thereafter services of these workmen were terminated sometime during the year 1987. Several disputes were referred for adjudication to the Labour Court as to whether the termination of the services of Casual Labourers by the Management of Telecom District Manager, Belgaum is justified or not? The Court was also required to answer the delay in raising the dispute.
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C/SCA/16935/2015 JUDGMENT
15.1 The Apex Court held that as held in
Shalimar works Limited v. Their Workmen that
merely because the Industrial Disputes Act does not provide for any period of limitation for raising the dispute, it does not mean that the dispute can be raised at any time without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an 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 so, when disputes relate to discharge of workmen in wholesale.
15.2 The Court noticed that in Shalimar works Limited v. Their Workmen delay was of 4 years in raising the dispute & that too, after even re employment of the most of the old workmen & that had been was held to be fatal.
16. In Nedungadi Bank Ltd. v. K.P. Page 23 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT Madhavankutty and Ors. (supra), delay of 7 years was held to be fatal and court disentitled the workmen to any relief.
17. In Ratan chandra Sammanta and Ors. v. Union of India and Ors. (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, in the matter before the Apex Court, it did not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. The High Court though has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal, but factually the Court found that not correct. The proceedings had been initiated under the I.D.Act and the Court did not find it proper to nonsuit the workman on the Page 24 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT ground of delay without giving the relief of back wages, it directed the appellant to be reinstated.
18. This Court in Special Civil Application No.20706 of 2018, where the ground of delay had been raised by the employer has not sustained such a plea and has allowed the petition relying on the various decisions of the Apex Court.
19. In yet another decision rendered in case of STATE OF JAMMU AND KASHMIR VS. R.K.ZALPURI AND OTHERS, reported in (2015) 15 SCC 602, the Apex Court noticed that the respondent was dismissed from service in the year 1999 and he chose not to avail any departmental remedy and approached the High Court after a lapse of 05 years. The Court held that the doctrine of delay and latches had already visited his claim and the claim should not be adjudicated unless the same causes grave injustice.
19.1 Relevant findings and observations are Page 25 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT reproduced as under:
"20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala and Others, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-
"30.The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
21. In this regard reference to a passage from Karnataka Power Corpn. Ltd Through its Chairman & Managing Director & Anr Vs. K. Thangappan and Anr would be apposite:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may Page 26 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party".
After so stating the Court after referring to the authority in State of M.P. v. Nandalal Jaiswal[8] restated the principle articulated in earlier pronouncements, which is to the following effect: "9...the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third Page 27 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction".
22. In State of Maharashtra V Digambar[9] a three judge bench laid down that: "19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
23. Recently in Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu[10], it has been ruled thus: "Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to Page 28 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis".
24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of writ court to exercise the discretion. In Tukaram Kana Joshi And Ors. Vs. Maharashtra Industrial Development Corporation & Ors[11] it has been ruled that: "12...Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and Page 29 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no thirdparty interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience".
And again: "14. No hardandfast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a nondeliberate delay. The court should not harm innocent parties if their rights have in Page 30 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports, Collector (LA) v. Katiji, Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, Dayal Singh v. Union of India and Shankara Coop. Housing Society Ltd. v. M. Prabhakar.
25. Be it stated, in the said case the appellants were deprived of the legitimate dues for decades and the Maharashtra Industrial Development Corporation had handed over the possession of the property belonging to the appellant to the City Industrial Development Corporation of Maharashtra without any kind of acquisition and grant of compensation. This court granted relief reversing the decision of the High Court which had dismissed the writ petition on the ground of delay and nonavailability of certain documents. Therefore, it is clear that the principle of delay and laches would not affect the grant of relief in all types of cases.
26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and Page 31 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT it could not have been allowed to rise like a phoenix by the writ court.
27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias" - 'thanks to God'.
28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless noninterference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.
20. Reliance is also placed by the State on the decision of the Apex Court rendered in case of Prabhakar vs. Joint Director Sericulture Department and ors., reported in (2015) 15 SCC 1. Page 32 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020
C/SCA/16935/2015 JUDGMENT The reference was of belated industrial dispute by appropriate Government. The Apex Court held that the policy of industrial adjudication is to be kept in mind which is that the very stale claim should not be generally encouraged or allowed in as much as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claim after long laps 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. The Apex Court held that it is a well recognized principle of jurisprudence that the right not exercised for the long time is nonexistent. Even where no limitation period is prescribed by statute, Courts apply doctrine of delay/ latches/ acquiescence and nonsuit litigants who approach court belatedly without justifiable explanation. The doctrine of laches has its applicability in the maxim of equity that delay defeats equities. Page 33 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020
C/SCA/16935/2015 JUDGMENT The Court can refuse the relief even when the petitioner approaches the Court within a period of limitation where delay on petitioner's part prejudices respondent. In the matter before the Apex Court, the petitionerclerk was terminated in the year 1985. From 1985 to 1999, he did not approach any judicial/quasi judicial authority challenging the termination. In somewhere in the year 1999, he approached the appropriate Government alleging the illegal termination of his services in violation of Section 25F of the I.D.Act and the matter was referred to the Labour Court which found the termination invalid and reinstated without back wages. When the petition was preferred by the Management against the award, which was dismissed, the Division Bench allowed the Letters Patent Appeal preferred against the judgment of the learned single judge, which was challenged by way of an SLP before the Apex Court.
20.1 The Apex Court dismissed the SLP by Page 34 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT
holding that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. The petitioner explained that he approached the Management time and again and was given assurance that he would be taken back in service. Finding nothing on record to substantiate the plea, that explanation was also not accepted by the Labour Court, which had given emphasised on the facts that the dispute was raised after a delay of fourteen years. The Court held that when the appropriate Government makes a Reference of an industrial dispute for adjudication, it does not decide any question of facts or law. It also further held that the law of limitation does not apply to the proceedings under the I.D.Act and under the I.D.Act no period of limitation is prescribed. In some of the decisions where the reference was made belatedly and after a lapse of considerable period, the Court did not set aside the reference, but moulded the relief by denying back wages fully or partially, or else granted compensation denying Page 35 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT the reinstatement. The Apex Court held that under Section 10 of the I.D.Act, the words "at any time" used in Section 10 would support that there is no period of limitation in making the reference at the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or is it a live dispute and has not become a stale claim and if that is so, the reference can be refused. Whether the dispute is alive or it has become stale/non existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hardandfast rule regarding the time for making the order of reference. The Apex Court held that the words "at any time" used in Section 10(1) do not admit of any limitation in making the order of reference and the laws of limitation are not applicable to the proceedings under the I.D.Act, the policy of industrial adjudication is that the very stale claims should not be generally encouraged or Page 36 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claim 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. In those matters, as per the say of the Apex Court when it is found that the 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.The law on this aspect needs to be applied.
20.2 Relevant findings and observations are reproduced herein under:
"41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before Page 37 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT 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 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 sound public policy that if a person does not exercise his right for a long time then such a right is non existent.
42. On the basis of the aforesaid discussion, we summaries 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 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 Page 38 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT "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 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 Page 39 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT 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.
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 Page 40 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT the termination and demanding reinstatement. He is able to show that there were discussion 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 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 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 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 no 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 Page 41 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT 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. 42.6 In contract, 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.
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 Page 42 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT 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 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) do not admit of any limitation in making an order of refrerence and laws oflimitation 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 obvious risk to industiral 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."
21. In yet another matter before the Apex Court in case of Rashtrasant Tukdoji Maharaj Technical Education Sanstha, Nagpur vs. Prashant Manikrao Kubitkar, reported in AIR(2017)SC 2482, the Labour Court held the termination of the respondent workman to be in infraction of Section 25F and 25G of the I.D.Act and awarded Page 43 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT reinstatement with continuity of service, but, without back wages. The Apex Court noticed that the award of the Labour Court of reinstatement was after 13 years of the termination. The High Court in writ petition filed by the appellant affirmed the said order. When Appeal was made before the Apex Court, it deemed it appropriate to modify the relief by granting compensation of Rs.1 Lakh in lieu of reinstatment without back wages.
22. Worthwhile here is to refer to the decision of this Court in Special Civil Application No.16345 of 2011, which has been heavily relied upon by the learned advocate for the respondent, wherein the Labour Court had directed the petitioner to be reinstated and such conclusion had not been found faulty nor was it interfered with by this Court. When the request was made moulding the relief and award the compensation in lieu of the reinstatement, instead of directing the reinstatement of the Page 44 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT workman, the Court held that such plea was not raised before the Labour Court and if the Court did not consider the said alternative option it is difficult to find the fault with the decision of the Labour Court.
23. It is thus quite clear from the various decisions which has been discussed on the aspect of delay that if explained satisfactorily, the Court can act upon it and the Reference when is found valid the delay per se cannot be the ground for rejection of the Reference by the Labour Court. It is also to be noted that the care needs to be taken by the Assistant Labour Commissioner or the authorised officer of the office of Labour Commissioner while examining the dispute before it as to whether to make the Reference and while so doing it, it will have to consider not only the delay per se, but whether the claim is still alive and it has not become a stale claim.
24. So far as the issue of the delay is concerned, the Labour Court as well as this Court Page 45 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT merely on the count of delay cannot deny the relief, if it is well explained and the Court is satisfied on the strength of the pleadings as well as substantiating material that the claim is alive and has not come stale. Ordinarily, it is not for this Court to entertain belated claims and prejudice the rights of opposite parties and indolent as well as lethargic attitude and negligent approach are not to be encouraged. However, in absence of any prescribed period of limitation, the Court concerned shall regard factual matrix, apply law and if needed, suitably mould the reliefs to do the complete justice. In the matter on the hands, there has been a delay of 09 years. This Court notices that the explanation which has been given by the petitioner is that they are illiterate and having the restricted social interaction and considering their socio economic background were unaware of the development in the filed. Other workmen and the labourers from the village since had preferred the dispute and the Reference was made, they also approached the authority under the Labour Law.
This has been considered as one of Page 46 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT
the issues by the Labour Court on a fallacious ground has accepted that delay could not have been made a ground by the respondent. It held that the respondent did not adduce sufficient evidence to substantiate this plea of delay. In fact, there is a serious error committed by the Labour Court here, it was when the delay is made it is to be explained by the person who has committed the delay and not the respondent. After nine years the dispute was raised by the respondent, obviously the petitioner would raise the dispute of delay, but essentially the explanation shall have to come forth from the parties which commit the delay and not the respondent. Although, it a trite law that the ignorance of law is not an excuse. The fact still remains that all the respondents are hailing from the rural background and having no formal education to their credit. They worked as labourers and therefore, the nittygritty of law if is not within their knowledge and the claim is still alive, that explanation would still suffice Page 47 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT for the Court to hold that it is a sufficient explanation. The nine years of the delay could not have come in their way as no law of limitation would be applicable in case of the industrial dispute. What all is required is their satisfactory explanation and the claim to be not stale. The respondents have been honest to say that they did not know about the remedies and it is only after some people from the very village had raised the dispute that they have chosen to approach the Labour Authority, which referred the dispute to the Labour Court and the Reference was sustained condoning the delay.
On Merits:
25. Going to the merit of the matters, this Court notices that the application had been made seeking the production of the documents like muster roll, payment register and other necessary details which would reflect the engaging of the respondent as a labourer at the Dam site. It appears that under the Right to Information Act, Page 48 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT what had been provided to the respondents is a details of their having worked from 1995 to 1999 for totally 45 days. Of course, the original muster roll, the wage register have not come on the record. Neither they have been supplied to the respondents nor they have been produced by the petitionerState before the Labour Court. The deposition on the part of the one of the officers is only in relation to the total numbers of the engagement of these respondents as daily wager. The Labour Court, therefore, had rightly held that when the seniority list is not maintained, the breach under Sections 25 G & H of the I.D.Act has been held inevitable. This has been rightly held to be the infraction of both Sections 25 G and H. No interference, therefore, is necessary as not only all the relevant material which was in possession of the petitioner has been brought on the record as is required of the petitioner State as held in by the Apex Court in case of DIRECTOR, FISHERIES TERMINAL DIVISION VS. Page 49 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020
C/SCA/16935/2015 JUDGMENT BHIKUBHAI MEGHAJIBHAI CHAVDA where it has been a mandate of the Apex Court that based on the pleadings and evidence on record, the Court would conclude in relation to the service of the employees and also would decide as to whether the juniors to the labourers whether should continue after once having terminated their services. This material is required to be adduced by the State. The labourer would always have difficulty in accessing to all the official documents, muster rolls etc. in connection with his service. The burden of proof would shift to the employer to prove that he did not complete 240 days of service in the requisite period to continue the service and production of the document would always be the responsibility if once initial burden is discharged by the labourer.
26. Here also the petitioner has failed to produce the complete record and muster roll despite the direction of the Labour Court to produce the same and therefore, there is no Page 50 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT reason why the Court needs to interfere with the findings of the Labour Court so far as the breach of Sections 25G and 25H of the I.D.Act is concerned.
27. The question therefore at the end that arises for the Court's consideration is as to whether to continue the relief of granting the reinstatement with continuity without back wages or whether the lumpsum compensation is the solution to this, bearing in mind delayed claim so also the law on the subject of suitably moulding the reliefs. As discussed in detailed hereinabove the Apex Court has been categorical that in the event of acceptance of the explanation of the delay which has been caused in preferring the Reference, the Court shall have to regard as to in what manner the relief can be moulded. It could be also without the back wages, reinstatement by way of lumpsum compensation. 27.1 In the instant case, the Reference (LCR) No.5 of 1996 preferred by one Rambhai Raidhanbhai Page 51 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT is brought to the notice of this Court where there was no delay in taking recourse to the authority of the Labour Court for the dispute raised by the labourer. He was terminated on 01.01.1994 and soon thereafter within 90 days he had raised the dispute leaving aside the aspect of the delay also which even if considered to be explained sufficiently for the Court to entertain the Reference.
28. The Court also notices that in case of all the three respondents, they have their own agricultural land. One of them in the cross examination had also admitted of having five Bighas of land. According to the respondent workman, since he was unable to get sufficient produce, he has chosen to go as a labourer at the Dam site. Without entering into the merit of that aspect, suffice to note that these are the labourers, who have their own agricultural land in the very village, which is stipulated near the Dam site. As their termination has been held to Page 52 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020 C/SCA/16935/2015 JUDGMENT be illegal instead of endorsing the relief of reinstatement with continuity of service, the Court deems it appropriate to mould the relief of granting lumpsum compensation to these persons as per the decision of Prabhakar (supra) and RASHTRASANT TUKDOJI MAHARAJ TECHNICAL EDUCATION SANSTHA, NAGPUR (supra).
Operative Order:
29. Resultantly, all these petitions are partly allowed. Each of the respondents shall be paid the lumpsum compensation of the amount of Rs.4 Lakh by the State within a period of 12 weeks from the date of receipt of a copy of this judgment. Direct Service is permitted.
Sd/-
(MS SONIA GOKANI, J) M.M.MIRZA Page 53 of 53 Downloaded on : Sun Jun 14 11:07:17 IST 2020