Dharampur Nagarpalika vs Mahendrasinh Narsinh Padhiyar on 13 February, 2020

[Cites 33, Cited by 0]

Gujarat High Court

Dharampur Nagarpalika vs Mahendrasinh Narsinh Padhiyar on 13 February, 2020

Bench: Sonia Gokani

         C/SCA/2404/2017                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2404 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS JUSTICE SONIA GOKANI

==========================================================

1     Whether Reporters of Local Papers may be allowed to                  NO
      see the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law             NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                    DHARAMPUR NAGARPALIKA
                             Versus
             MAHENDRASINH NARSINH PADHIYAR & 1 other(s)
==========================================================
Appearance:
MR HARI PATEL WITH MR DEEPAK P SANCHELA(2696) for the
Petitioner(s) No. 1
MR.KRUTARTH K PANDYA(7092) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
==========================================================

    CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

                               Date : 13/02/2020

                               ORAL JUDGMENT

1. The petitionerMunicipality is aggrieved by the judgment and award dated 07.10.2016 passed by Page 1 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT the Labour Court, Valsad in Reference (LCV) No.35 of 2011, whereby it has directed the petitioner Municipality to reinstate the respondentworkman on his original post with continuity of service from 05.01.2004 with 100% back wages. Therefore, the challenge is made under Articles 226 and 227 of the Constitution of India with the following prayers:

"8...

           (A)     To admit this petition.


           (B)     To issue a writ of certiorari and/or any other

appropriate writ, order and/or direction in the nature of certiorari quashing and setting aside the impugned award dated 07/10/2016 passed by the learned Labour Court, Valsad in a reference LCV No.35 of 2011 annex at AnnexureA to this petition in the interest of justice.

(C) To stay the implementation, execution and operation of the impugned Award dated 07/10/2016 passed by the learned judge of the Labour Court at Valsad in reference LCV No.35/2011 annex at Annexure A to this petition, during the pendency of admission, hearing and final disposal of the petition by way of an interim relief in the interest of justice.

Page 2 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

         C/SCA/2404/2017                                                 JUDGMENT



              (D)     Be pleased to pass such other and further relief's

as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case."

2. Brief facts leading to the present petition are as follow:

2.1 The respondentworkman was working from 29.09.1981 in the Health Department. He continued to discharge his services uninterruptedly and had a unblemished record. He was promoted from the post of driver to Sanitary Inspector by a Resolution NO.76 on 01.02.1995. There was no notice nor any chargesheet nor any other memo issued to him.

2.2 According to the petitionerMunicipality, he chose not to attend the duties and therefore several communications were made and yet he never attended the same, therefore by passing Resolution No.20 of 30.07.2003 he was suspended and on 17.01.2004 he was issued the chargesheet.



2.3 It         is         the     stand              of     the        petitioner



                                      Page 3 of 49

                                                                  Downloaded on : Sun Jun 14 04:17:04 IST 2020
        C/SCA/2404/2017                                                  JUDGMENT



Municipality              that     the         respondent              voluntarily

abandoned the service. There are certain property disputes going on at Civil Court, Dharampur as also before the District Court and these litigations are going on for a long period. On 05.01.2004, he was terminated from his services without holding departmental proceedings any further after receiving the reply of the respondent.

2.4 This termination had aggrieved the respondent, who had raised the dispute and Assistant Labour Commissioner referred the dispute to the Labour Court, Valsad, which was numbered as Reference (LCV) No.35 of 2011.

2.5 Statement of claim had been submitted by the respondent where he had made a grievance of illegal termination and action on the part of the Municipality.

2.6 The petitioner had filed the written statement. The petitioner had also produced the Page 4 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT documents which ran into 19 in numbers. There are other nine documents which had been produced and the Court had framed the issue and on availing the opportunity to the parties by adducing the oral as well as documentary evidence, eventually heard both the sides and held in favour of the respondent. The Court directed the petitioner to reinstate the respondent in the service by considering his service as continuous from 05.01.2004 with 100% back wages and other consequential benefits of service. The petitionerMunicipality therefore, is aggrieved and is before this Court with the above referred prayers.

3. This Court has heard at length the learned advocate, Mr.Dipak Sanchela appearing with learned advocate, Mr.Hari Patel and has argued along the line of the memo of the petition. 3.1 It is his say that the award passed is unreasonable and has not taken into consideration the oral as well as documentary evidences which Page 5 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT are already established on the record of the Labour Court. It has erred in exercising the jurisdiction, which requires interference on the part of this Court under Article 227 of the Constitution of India. The Court has overlooked the fact that the respondent was working as a daily wager and had remained absent from the service. Thereby, he avoided his liability and therefore, the direction of reinstatement with 100% back wages was undesirable and unjustifiable. It is also his say that the Municipality by repeated communication had requested him to resume the duties however, it had fallen on deaf ears and he chose to then raise the dispute where the Court has disregarded the fact that there was no unfair labour practice and the aspect of termination or the suspension had already been considered by this Court in Special Civil Application No.16262 of 2010. It is not correct to say that the Municipality did not hold the departmental proceedings since in case of the daily wagers, it is unnecessary to hold Page 6 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT the same. The resolution of making him permanent was not confirmed by the superior authority and therefore, he could not have been presumed to have become permanent. No rules which are applicable to the permanent employee could have been applied in his case and therefore, the Court was wrong in directing the reinstatement with 100% back wages as has been done in the instant case with continuity and all consequential benefits.

3.2 Learned advocate for the petitioner has relied on the decision of the Apex Court rendered in case of State of Maharashtra vs. Reshma Ramesh Meher, reported in 2008 (8) SCC 664, wherein the Apex Court held thus:

"17.The next question for determination is whether the re spondents are entitled to the backwages for the period they were out of service?

18.It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstate ment is available to him. However, the entitlement of an em ployee to get reinstated does not necessarily result in pay Page 7 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT ment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer of backwages, factual scenario, equity and good conscious, a number of oth er factors, like the manner of selection; nature of appoint ment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract for mula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of the each case.

19. In General Manager, Haryana Roadways Vs. Rudhan Singh2 a threeJudge Bench of this Court has observed that there cannot be a strait jacket formula for awarding relief of backwages and an order of backwages should not be passed in a mechanical manner. It has been held that a host of factors, like the manner and method of selection and ap pointment; the nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character; and the length of service, which the workman had rendered with the employer are required to be taken into con sideration before passing any order for award of backwages. [See: also Haryana State Electronics Development Corpn. Ltd. Vs. Mamni3; U.P. State Brassware Corpn. Ltd. & Anr. Vs. Uday Narain Pandey4 and U.P. SRTC Vs. Mitthu Singh 5] (2005) 5 SCC 591 (2006) 9 SCC 434 (2006) 1 SCC 479 (2006) 7 SCC 180."

Page 8 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

        C/SCA/2404/2017                                          JUDGMENT



3.3      He has also relied on the decision of the

Apex   Court        rendered         in     case   of    Prabhakar              vs.

Joint Director Sericulture Department,reported in 2015 (15) SCC 1. Relevant paragraphs are reproduced as under:

"20. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.

21. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power under Section 10 of the Act, such a power could not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture.

22. As early as in 1959, this Court in the case of Shalimar Works Limited v. Workmen 1960 1 SCR 150 pointed out that there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) of the Act. At the same time, the Court also remarked that the dispute should be referred as soon as possible after they have arisen and after conciliation proceedings have failed.

Page 9 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT In that case, reference was made after four year of dispute having arisen. In these circumstances, this Court held that relief of reinstatement should not be given to the discharged workmen in such a belated and vague reference.

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 nonexistent. 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 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.

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 Page 10 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.

41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses 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 nonexistent.

C/SCA/2404/2017 JUDGMENT Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the labour authorities seeking reference or did not invoke the remedy under Section 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 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 number of years and was ultimately dismissed on the ground that 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 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 Page 13 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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 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 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 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."

4. Learned advocate, Mr.Krutarth Pandya appearing for the respondent employee has vehemently urged this Court that the role of the Court in a supervisory jurisdiction is as Page 14 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT prescribed under the law and as also detailed by the Apex Court. He has urged that once the Trial Court has acted within its bound, this Court need not sit in an appeal and reappreciate the evidence.

4.1 He has further urged that communications of joining the parties, etc. are after thought. They never have been communicated to the respondent. There is one witness namely, Saileshbhai Bhagubhai, Incharge Chief Officer of Dharampur Municipality. He had admitted that under what circumstances he was terminated from the services, he was completely unaware of nor is he aware as to what were the cases against him. He agreed that no show cause notice was given to him although BCSR Rules are applicable to the employees of Municipality. He also agreed that no departmental proceedings were conducted although the charges have been made and the reply had been given by the respondent. The superior authority of the Municipality was the Director of Page 15 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT Municipality (now the Commissioner of Municipality), who was required to be made aware of any process which might be initiated against the employee. All resolutions of the Board also are required to be sent to the Collector. This witness is unaware of the nature of litigation before the Dharampur Civil Court. He, therefore, has urged that there is not a semblance of evidence to indicate any misconduct on the part of the petitioner and yet his services came to be terminated.

4.2 He has supported his oral version with the following decisions:

1. Deepali Gundu vs.Kranti Junior Adhyapak, reported in 2013 (10) SCC 324

2. Jasmer Singh vs. State of Haryana, reported in 2015(4)SCC 458

3. Narendrakumar Vankar vs. Manager medicinal, reported in 2018 (4) GLR 3534

4. Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Ltd, reported in 2014(11) SCC 85

5. Shiv Nandan Mahto vs. State of Bihar, reported in 2013(1)SCC 626 Page 16 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT

6. Tapas Kumar Paul vs. BSNL, reported in 2014(15)SCC 313

7. Raj Kumar vs. Director of Education, reported in 2016(6) SCC 541

8. State of Uttar Pradesh vs. Charan Singh, reported in 2015(8) SCC 150.

9. Gujarat Electricity Board & 1 vs. Babubhai Barjulbhai passed in LPA No.1634 of 2006.

5. Having heard the learned advocates on both the sides and also have considered the submission on the part of the parties at length along with the oral as well as documentary evidence, this Court notices that this petition is preferred by way of the present petition under Articles 226 and 227 of the Constitution of India. The superintending jurisdiction of the Court is being invoked, therefore, the Court needs to reproduce the findings and observations made in case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil; reported in 2010 8 SCC 329:

"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution Page 17 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 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 Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the Page 18 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court Page 19 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.

In other words the jurisdiction has to be very sparingly exercised.

(I) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

Page 20 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the 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 High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

Page 21 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

6. The Court has to regard as to whether the Trial Court has acted within its bound and also to consider as to whether there is any manifest illegality in the judgment and award passed. If the Trial Court has not acceded its jurisdiction and also has not committed any illegality, this Court should be slow in exercising its jurisdiction under Article 227 of the Constitution of India.

7. This brings this Court to the question of the delay in raising the dispute. The chronology of events, if are looked at, the respondent herein was posted as a driver in the Health Department in the year 1981. The respondentworkman continued to serve from the year 1981. According to him, he was promoted to the post of tractor driver with effect from 01.08.1982. It appears Page 22 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT that a Resolution was passed on 30.01.1995 being the Resolution No.76, whereby he was given the promotion to the post of Sanitary Inspector. This was communicated to the respondent on 01.02.1995 by an outward No.101194/95 by the Administrator of Municipality stating therein that this Resolution No.76 has promoted him to the post of Sanitary Inspector and his pay scale shall be 1200301560 E.B. 402040. According to the respondent, he had taken a charge of Sanitary Inspector, however, according to the petitioner workman the charge was not taken by him. The deposition of respondentworkman is in the form of examination in chief on affidavit. He also stated that he had been made a Sanitary Inspector from the tractor driver vide Resolution No.76 and he had unblemished career, nothing comes on the record that he has been given the charge. Whereas according to the petitioner, he never took the charge and this Resolution was not approved by the superior authority. It is also not coming on the record as to whether the Municipality Page 23 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT intimated to the respondent of there being no possibility of his promotion to come into effect on account of nonapproval by the superior authority. It is quite unlikely that the employer who has conveyed through the responsible post of administrator the promotion of the respondent, would chose to take a volteface and without intimating the respondentworkman shall unilaterally declare that there was no confirmation of the Resolution. Assuming that there was no confirmation and therefore, this could not be implemented, there was always a requirement of the employer to intimate the respondent.

8. With regard to the suspension from 30.07.2003 vide Resolution No.20 it had been resolved that he would be required to be paid the suspension allowance as per the Government's Rules and the compartmental proceedings to be initiated and the report once received of the departmental proceedings, the same be intimated to the Page 24 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT Director, Municipality.

9. On 30.10.2003 the respondent had urged that he was filling quite disheartened and was without the job. He pleaded that his economic condition was quite bad. He wrote on couple of occasions and also orally requested that he should be permitted to work as a driver.

10. It appears that the respondent when wrote a letter on 30.07.2003 to the Municipality to allow him to resume his duty, the Municipality had resolved in this Resolution No.20 of 30.07.2003 to put him under the suspension and he was then served with the chargesheet on 17.01.2004.

11. A show cause notice was issued on 06.02.2004, which was replied to by the respondent on 27.02.2004.

11.1 The respondent raised an issue of his not being paid the subsistence allowance and preferred an application of recovery under Section 33 (C)(2) of the Industrial Dispute Act, Page 25 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT which was severely challenged by the petitioner and after hearing both the sides the Labour Court rejected the Recovery Application on 12.08.2010 on the ground that there was no established rights of the respondent nor could the order passed be construed as an order of suspension. 11.2 This was challenged before this Court in Special Civil Application No.16262 of 2010 and after hearing both the sides this Court also held that there was no order revealing that the respondent was suspended. Even the Resolution of the Municipality dated 30.07.2003 did not state that the respondentworkman was under suspension. The letters which were produced were revealing the absence from the duty and therefore, the Labour Court, Valsad did not accept the plea that he was suspended from 01.09.1986. Hence, the Court held that there was no question of paying any subsistence allowance and in absence of any preexisting right, there did not arise any question of grant of any subsistence allowance. Page 26 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT Accordingly, it chose not to interfere with the order of the Labour Court, Valsad. However, while so holding, the Court made it clear that the dismissal of the petition would not come in the way of the respondent to establish his right before the appropriate forum and hence, the respondent had raised the industrial dispute and Assistant Labour Commissioner had referred the same to the Labour Court, Valsad.

12. The Reference (LCV) No.35 of 2011 as mentioned hereinabove was duly adjudicated by the Trial Court. What emerges is that the person admittedly was working with the petitioner Municipality till the Resolution had been passed in the year 1995 as otherwise there was no question of granting him the promotion as was done. Even if, the letter promoting him to the post of Sanitary Inspector has not been implemented for not having been approved by the superior officer, that would not take away the conclusion that he was in a service and continue Page 27 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT to discharge his duty as was required of an employee for the Municipality to pass the Resolution of promoting him to the said post. 12.1 There is ambiguity with regard to its implementation inasmuch as in the oral deposition of the respondent before the Labour Court, there is not a whisper as to whether he has already taken the charge as a Sanitary Inspector and whether he, in fact, had performed the duties or not. On the part of the petitioner, the incharge Chief Officer had deposed during the trial that he too was unaware as to under what circumstances this was not implemented. He also clearly and unequivocally stated that the BCSR is applicable to the Municipality and if any employer is remained absent, the show cause notice is required to be given.

13. In the instant case, after the show cause notice, the departmental proceedings have been completed. Though notice was given charging him for nonattendance and for abandoning the Page 28 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT duty. This had been replied to by the other side and thereafter, no further proceedings were conducted. It was also not intimated to the Collector as was otherwise the requirement of law and also to the then Director of Municipality. There are no documents produced intimating either to the Collector or to the Director of Municipality of initiating any action against the respondentworkman. Before the Trial Court, the Chief Officer deposed he is the senior most officer of the Municipality and the only witness who deposed. He was clueless as to why the respondent was suspended and later on terminated from the service. He was unaware as to on what ground such termination had come also. This had clearly and also unfailingly established the single most fact that the action on the part of the petitioner authority as rightly held by the Labour Court, Valsad, is contrary to the settled principles of law. It was an act in complete breach of the provisions of law. This person had worked with the Municipality from 1981. He was Page 29 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT given the payscale from 1982 itself of the post of Tractor Driver. Even if, one does not consider his promotion in the year 1995 as per the Resolution No.76 passed by the General Board, he had worked from 1981 to 1995 to make it almost 14 years of the journey of his career and it is again a mystery as to under what circumstances, the petitioner had chosen to issue the notice to him in the year 2003.

13.1 A show cause notice was also given later on in the month of January, 2004 in the form of chargesheet. What happened between 1995 to 2001 is an enigma remained unclear from the record. There are couple of communications presented by the respondent however, the one which have been produced before this Court indicating the calling of the respondent have not been produced before the Labour Court. The Chief Officer also agreed of not being aware of the reasons mentioned hereinabove and it is quite unpalatable that the senior most officer who is incharge of the Page 30 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT municipality would be unaware in his deposition and that to in the cross examination as to why the person who has suspended and then later on terminated from the service that to without following any kind of procedure which is applicable to the Municipality.

13.2 It is true that after the reply to the show cause notice, when the charges were received, the respondent had raised the dispute of nongrant of subsistence allowance for the first time by way of an application under Section 33 (C) (2) in the year 2004. This culminated into this Court rejecting his request in the year 2010 and thereafter, he raised the dispute so therefore, for the period from 1995 to 2001 there appears to be a complete lull period on the part of the respondent also who has chosen to wake up from his slumber only for the year 2001 and contacted the petitioner. The Trial Court is right in holding that the petitionerMunicipality had neither conducted any departmental proceeding Page 31 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT nor had followed the law as was applicable and required therefore, by quashing and setting aside its action of dismissal, which had come without following the departmental proceeding, it has rightly granted the reinstatement to the petitioner to his original post.

14. It emerges very clearly that 1995's Resolution has not been effected for whatever reason and that has still not come on the record and therefore, he shall have to be regarded at the post of a Tractor Driver where he was made permanent. This shall take this Court to his raising the grievance before the authority where the continuity shall have to come because if illegal action on the part of the Municipality had not been committed, he could have continued on this post. Therefore, in a matter where there is delay on the part of the employee as held by the Apex Court in case of Prabhakar vs. Joint Director Sericulture Department,reported in 2015 Page 32 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT (15) SCC 1 the Court shall need to not only regard that for the purpose of considering the conduct of the employee, but, it shall also mould the relief accordingly in appropriate manner, which also requires to be done in the instant case. Relevant paragraphs are reproduced as under:

"20. At this stage, it may be pointed out that admittedly the law of limitation does not apply to industrial disputes. Limitation Act does not apply to the proceedings under the Industrial Disputes Act and under the Industrial Disputes Act no period of limitation is prescribed. This is now well settled by series of judgments of this Court.

21. On the reading of these judgments, which are discussed hereinafter, it can be discerned that in some decisions where the reference was made after a lapse of considerable period, the Court did not set aside the reference but moulded the relief by either granting reinstatement but denying back wages, fully or partially, or else granted compensation, denying reinstatement. On the other hand, in some of the decisions, the Court held that even when there was no time prescribed to exercise power under Section 10 of the Act, such a power could Page 33 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT not be exercised at any point of time to revive matters which had since been settled or had to become stale. We would like to refer to these judgments at this juncture.

22. As early as in 1959, this Court in the case of Shalimar Works Limited v. Workmen 1960 1 SCR 150 pointed out that there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) of the Act. At the same time, the Court also remarked that the dispute should be referred as soon as possible after they have arisen and after conciliation proceedings have failed.

In that case, reference was made after four year of dispute having arisen. In these circumstances, this Court held that relief of reinstatement should not be given to the discharged workmen in such a belated and vague reference.

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 nonexistent. 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 Page 34 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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".

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 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.

Page 35 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT

42. On the basis of 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 2A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an Page 36 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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 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 make a demand and other party rejects the same. It is held by this Court in 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 Page 37 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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 exist. 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 present. 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 seized to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances discloses 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 nonexistent 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 parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management Page 38 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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 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 number of years and was ultimately dismissed on the ground that 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 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 Page 39 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT 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.

44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the 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 Page 40 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT an order of reference and laws of limitation are not applicable to proceedings under the 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." 14.1 He has also relied on the decision of the Apex Court rendered in case of Deepali Gundu vs. Kranti Junir Adhyapak, reported in 2013 (10) SCC 324. Relevant paragraph is reproduced as under:

"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer Page 41 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.

14.2 The Apex Court, in case of Raj Kumar vs. Page 42 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT Director of Education, reported in 2016 (6) SCC 541 has held thus:

"36. The termination of the appellant is bad in law for noncompliance with the mandatory provisions of Section 25F of the ID Act and also Section 8(2) of the DSE Act. Further, the respondentSchool has not produced any evidence on record to show that the retrenchment of the appellant was necessary as he had become 'surplus'. The termination of the appellant was ordered in the year 2003 and he is unemployed till date. The respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.)& Ors. wherein it was held as under:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an Page 43 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

Page 44 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

C/SCA/2404/2017 JUDGMENT This decision & various decisions referred to in the same thus make it extremely clear that when the employee is restored to the position, which he had before the dismissal or removal or termination of service, the same would imply that he would be put in the same position as mentioned in case of Deepali Gundu (supra) in which he would have been but for the illegal action of the employer. The injury sustained is not measurable as his source of income is dried up and his entire family suffers on account of such action.

It is a matter of nonmaking available the food, education and other amenities of life to the family, but also is self respect and his entitlement being denied, this suffering as would continue till the adjudicatory forum finalized the legality of the action of the employment. The Court held that the reinstatement entitles the employees to claim full backwages.

15. Apt would be to look at the case of State of Maharashtra vs.Reshma Ramesh Meher, reported Page 45 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT in 2008 (8) SCC 664, the Apex Court has held that while determining the back wages for the period they were out of the service, once the order of termination of service of an employee is set aside and the relief of reinstatement is made available, the same should not result necessarily in the payment of full or partial back wages as that independent of reinstatement. While dealing with the prayer of backwages, factual scenario, equity and good conscious, a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back wages should be awarded.

16. It is to be noted that from these decisions which have been pressed into service need to regard that even if the 100% back wages Page 46 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT is not to be granted, but the Court shall require to take into consideration the fact that he has been pleading of having no job nor any economic gain to sustain himself or his family right from the year 2001 as is visible from his letters. The total period he had spent with the Municipality was almost 14 years. His appointment though initially as a daily wager later it has assumed the permanent character. This considering the length of service rendered by him and the manner in which for numbers of years the double edged sword hanging over him.

17. This Court shall need to regard, of course, the later decision which speaks of grant of back wages as if he was not illegally terminated. However, the period for which there is no initiative taken by him from the year 1995 to 2001, the same will have to be treated as dias non. It is also not possible for a driver not to be working for all these years with his skill as a Driver and therefore, according to this Court, Page 47 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT the back wages shall have to be reduced to 80% from the date of filing of the reference as dias non.

18. Resultantly, this petition is partly allowed modifying the judgment and award of the Trial Court by confirming the order of reinstatement from the date of his preferring the Reference with continuity of service, however, from 1995 till the date of preferring the communication in the year 2001, the period shall be considered as dias non. He shall be given the back wages at the rate of 80%.

19. The insistence on the part of the employer that the back wages shall not be for period from 1995 till 2011 to be treated as dias non, is not finding favour with this Court inasmuch as he was already pursuing the remedies which according to him, were the rightful remedies. He asked for the subsistence allowance under the impression and belief that the departmental proceedings shall be proceeded Page 48 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020 C/SCA/2404/2017 JUDGMENT against him, which never had adjudicated and although he had not succeeded either before the Labour Court or before this Court for there being no pre existing right and in absence of any letter of suspension, which also the petitioner Municipality chose not to issue to him despite having terminated his service, in the opinion of this Court, the only period that requires to be treated as dias non is from 1995 till the time he raised the first time dispute in the year 2001, maintaining unexplained silence from the year 1995 to 2001.

20. Since the respondentworkman has already attained the age of superannuation, let all his benefits be calculated and provided to him 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 49 of 49 Downloaded on : Sun Jun 14 04:17:04 IST 2020

Unlock Advanced Research with PRISMAI

Gujarat High Court