Gujarat High Court
Ammedabad Municipal Corporation vs Sureshbhai G Trivedi on 10 September, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/19433/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19433 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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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 ? 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 ?
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AMMEDABAD MUNICIPAL CORPORATION
Versus
SURESHBHAI G TRIVEDI
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Appearance:
MR HS MUNSHAW(495) for the PETITIONER(s) No. 1
MR MAHENDRA U VORA(3034) for the RESPONDENT(s) No. 1
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 10/09/2018
ORAL JUDGMENT
1. Heard learned advocate for the petitioner and learned advocate for the respondent. 1
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2. By present petition, the Municipal Corporation has challenged award dated 7.7.2006 passed by learned Labour Court in Reference No.388/2009 whereby the learned Labour Court directed present petitioner to reinstate the claimant on his original post with 50% backwages.
3. So far as factual background is concerned, it has emerged that present respondent raised industrial dispute with the allegation that opponent No.2 Gram Panchayat illegally terminated his service on 16.6.2005.
3.1 Appropriate government referred the dispute for adjudication to learned Labour Court at Ahmedabad. The learned Labour Court registered the dispute as Reference (LCA) No.388/2009. 3.2 In his statement of claim before the learned Labour Court the claimant alleged that he joined service with Opponent No.2 Gram Panchayat on 1.7.2003. He also alleged that he was engaged as permanent employee and that he worked as Bore 2 C/SCA/19433/2016 JUDGMENT Operator and was paid salary at the rate of Rs.2000/. He further alleged that that the Sarpanch illegally terminated his service by oral order on 16.6.2005. The claimant alleged that the termination of his service was effected in breach of statutory provision under Section 25F, Section 25G and Section 25H and that the Sarpanch terminated his service without notice and without conducting inquiry.
3.3 In the said reference case the claimant also impleaded present corporation as one of the opponents on the ground that after his service was terminated the opponent no.2 Gram Panchayat came to be merged with the opponent Municipal Corporation. On that ground he claimed relief against the Corporation.
3.4 The opponent corporation filed reply (written statement) and opposed the reference on various grounds. The corporation opposed the maintainability of the reference on the ground of 3 C/SCA/19433/2016 JUDGMENT delay. The opponent corporation also opposed the reference on the ground that the corporation had not taken any action against the claimant and that his service was terminated, according to his own allegation, as back as in June, 2005 when the corporation was not in picture and the Gram Panchayat came to be merged with the corporation only in February, 2006 and the corporation took the charge on 15.2.2006 and that therefore the claimant is not entitled to any relief against the corporation. The Corporation also claimed that since the corporation never terminated the service of the claimant, he cannot claim any relief against the corporation. It also claimed that on the date of the notification and/ or on the date when the Gram Panchayat came to be merged with the corporation, the claimant was not an employee of the corporation and that therefore he also cannot claim any relief against the corporation. With such averment the corporation opposed the reference and the taken by the claimant.
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4. During the proceedings before the learned Labour Court both sides placed respective evidence. Upon conclusion of the evidence, learned Labour Court heard rival submission and thereafter passed impugned award with above mentioned direction.
5. Feeling aggrieved by the said award, the corporation has filed present petition.
6. During pendency of present proceedings the workmanclaimant filed affidavit opposing the petition. Subsequently, the respondent also filed affidavit and placed on record of present petition documents and other material which was available on record of Reference Case before learned Labour Court.
7. The corporation filed rejoinder affidavit.
8. In this background, Mr. Munshaw, learned advocate for the petitioner corporation reiterated the contention which were raised 5 C/SCA/19433/2016 JUDGMENT before learned Labour Court. He opposed the claim that the claimant was permanent workman. Mr. Munshaw, learned advocate for the corporation submitted that as on the date of the Notification and on the date when the corporation took charge, the name of the claimant was not in the register and the claimant was not in the employment of even Gram Panchayat. According to petitioner corporation the respondent's name was not in any register of the Gram panchayat (as on the date of notification or on the date when merger took place and corporation took charge i.e. 15.2.2006) and that therefore the direction issued by the learned Labour Court against the Corporation are unjustified and unsustainable. Mr. Munshaw also submitted that learned Labour Court failed to appreciate that the dispute which was raised after 4 years should not be entertained. Mr. Munshaw, learned advocate for the petitioner submitted that the dispute was raised as an afterthought and only with a view to seeking employment with the corporation. Learned advocate 6 C/SCA/19433/2016 JUDGMENT for the petitioner submitted that the learned Labour Court passed the award without appreciating any contentions. According to the learned advocate for the petitioner, the award is misconceived, contrary to evidence on record as well as in total disregard to the relevant facts.
9. The petition and the submissions by the petitioner are opposed by the learned advocate for the respondent. So as to oppose the petitioner's contention that the claimant was not permanent employee, the learned advocate for the respondent relied on resolution passed by the Gram Panchayat on 31.5.2004 whereby the Gram Panchayat had resolved in favour of several employees and resolved to grant status of permanent workmen and benefit of regular pay scale to all the employees whose names were mentioned in the Resolution and to recommend the case of those employees to the State Government since without approval and sanction of the Government such benefits could not have been 7 C/SCA/19433/2016 JUDGMENT granted to the said employees. Learned advocate for the respondent submitted that respondent's name appeared in the resolution No.6/1 dated 31.5.2004. Learned advocate for the respondent also relied on the Identity Card issued by the Gram Panchayat and one more resolution which is also said to have been passed by the Panchayat whereby the Panchayat engaged the respondent. Besides the said submission, learned advocate for the respondent-claimant submitted that the claimant's service was illegally terminated inasmuch as the Sarpanch terminated respondent's service on 16.5.2005 without following prescribed procedure and that therefore the claimant is entitled for reinstatement in service. Learned advocate for the respondent also submitted that the claimant had raised dispute in September, 2008 and therefore the contention on the ground of delay is unjustified. He also submitted that the learned Labour Court has dealt with the said aspect and rejected the said contention by the corporation. According to learned advocate for 8 C/SCA/19433/2016 JUDGMENT the respondent the award does not suffer from any infirmity and therefore the petition should be dismissed.
10. I have considered rival submission and material available on record of present petitioner as well as the impugned award and the reasons recorded by learned Labour Court.
11. It is not in dispute that the corporation did not terminated service of the claimant.
12. It is not in dispute that the date on which the service of the claimant came to be terminated, the claimant was not employee of the corporation but he was in employment with employee of the Gram Panchayat (which was opponent No.2 before learned Labour Court).
13. More important is the fact that the date on which the notification merging the Gram panchayat into the Corporation came to be issued and the date on which the Panchayat actually merged with 9 C/SCA/19433/2016 JUDGMENT the corporation and the corporation took the charge, the claimant was neither on the roll (i.e. he was not in the employment with) of Gram Panchayat nor the claimant had even raised dispute on the said date.
14. It is also not in dispute that appropriate government passed order of reference on 8.3.2009 in connection with the claimant's alleged termination in June, 2005.
15. Thus the reference came to be made almost 4 years after service of the claimant came to be allegedly terminated.
16. The claimant raised the dispute in 2009 ( or in 2008 as claimed by him) with the allegation that Panchayat terminated his service on and w.e.f. 16.6.2005.
17. Undisputedly the corporation was not in picture on the said date i.e. on 16.6.2005. 10
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18. It is pertinent that the claimant did not place on record order terminating his service. He, rather, claimed that his service was terminated by Sarpanch on oral order.
19. The claimant did not examine the Sarpanch as his witness.
20. Obviously since the corporation was not in picture at the relevant time it was not possible for the corporation to lead evidence with regard to the termination of claimant's service.
21. It appears that on scrutiny of record the corporation did not find any material with regard to alleged termination of the claimant's service.
22. The corporation also could not find name of the respondent in the document which were available after the corporation took the charge.
23. Though the claimant himself did not place any 11 C/SCA/19433/2016 JUDGMENT material on record with regard to his termination, the Court accepted oral submission by the claimant that his service came to be terminated on 16.6.2005.
24. Actually there was no evidence on record before learned Labour Court to assume that the claimant's service was terminated on 16.6.2005. It could have been any day before 16.6.2005.
25. The attendance register or pay register of the Gram Panchayat were not placed on record before the learned Labour Court by either side. The claimant never called upon the Corporation to place any document on record.
26. Thus, there was nothing on record before the learned Labour Court even to assume that immediately till 16.6.2005 or immediately before 16.6.2005 i.e. on 15.6.2005 or any day prior to 15.6.2005 the claimant was actually in service with the Gram Panchayat and that he had worked 12 C/SCA/19433/2016 JUDGMENT with the Gram Panchayat immediately till or before 16.5.2005.
27. So as to support his allegation about his employment with the Panchayat, the respondent tried to rely on the Identity Card allegedly issued by the Gram Panchayat. It is pertinent to note that said Identity Card is not issued by the Corporation.
28. It is also relevant to note that the Photocopy of the Identity Card which was placed on record before learned Labour Court reflected signature of 2 persons however none of the said 2 persons were examined as witness by the claimant.
29. It is also pertinent to note that the said Identity Card does not reflect the date of appointment.
30. The Column regarding details about date of joining is left blank. In light of the fact that 13 C/SCA/19433/2016 JUDGMENT identity card does not reflect the date of appointment and the person who allegedly issued the identity cared were not examined before learned Labour Court, the said document should not have been mechanically accepted by and relied on by the learned Labour Court.
31. Now, so far as another document on which the claimant placed reliance i.e. resolution dated 31.5.2004 is concerned on reading said resolution it emerges that the said document cannot be taken as proof to accept and believe that the claimant was permanent workman (employee) of the Gram Panchayat.
32. On the contrary the said document reflects that the claimant and other persons whose names are mentioned in the said resolution dated 31.5.2004 (Page65 to 67 of present petition) were not permanent and regular employees of Gram Panchayat but they were daily wagers and the Gram Panchayat had merely resolved to grant benefit of 14 C/SCA/19433/2016 JUDGMENT regular pay scale to the said employees subject to approval and sanction by the Government.
33. Any order by the State Government giving sanction to the said Resolution was not placed on record before the learned Labour Court.
34. Under the circumstances, there was no justification for learned Labour Court to assume that the government sanctioned the Resolution and granted its approval and that therefore there was no justification to assume that the claimant was permanent workman.
35. The said aspect deserves to be considered in light of another resolution which is placed at record by present respondent along with his additional affidavit dated 14.8.2018. Under the said affidavit the respondent placed on record of present petition a resolution which reflects that the claimant was employed as temporary/ casual employee on adhoc basis and fixed wage basis from 15 C/SCA/19433/2016 JUDGMENT 1.7.2003.
36. The said resolution clearly shows that the claimant was engaged as casual and temporary employee on daily wage and adhoc basis.
37. In this view of the matter coupled with the fact that any material which would establish that subsequently the service of the claimant was regularised and he was granted status of permanent workman, was not placed/ available on record of the learned Labour Court. Actually, the claimant failed to establish that he was a permanent employee of Gram Panchayat.
38. The assumption by learned Labour Court that the claimant is permanent employee is unjustified and not supported by cogent evidence and cannot be sustained.
39. In light of the material available on record, the case of the claimant should have been 16 C/SCA/19433/2016 JUDGMENT examined and tested on the premise that the service of the daily rated person engaged on adhoc and casual basis was terminated and not only from the perspective that service of the permanent workman was terminated.
40. The criteria which would apply to the case of termination of an employee engaged on adhoc and daily wage / fixed wage basis would be different from the criteria in case of termination of permanent employee.
41. Unfortunately the learned Labour Court failed to appreciate the said distinguishing factor and the Court examined the case of the claimant as if the service of permanent employee was terminated.
42. Now comes the crucial issue. According to the claimant he came to be employed by Gram Panchayat in July, 2003.
43. According to his own allegation his service 17 C/SCA/19433/2016 JUDGMENT came to be terminated on 16.6.2005. Meaning thereby the total tenure during which he worked with the Gram Panchayat is only from July, 2003 to June, 2005 i.e. about 2 years.
44. It is pertinent to note that after his service came to be allegedly terminated on 16.6.2005 he raised industrial dispute as late as in 2009 i.e. after 4 years.
45. Of course learned advocate for the claimant tried to rely on the document which appears to be the submission of the complaint before the Office of the Labour Commissioner. Even if the said document suggests that the claimant probably, approached the office of Labour Commissioner in September, 2008 i.e. after almost 3½ years.
46. More pertinent and interesting aspect is that the claimant raised dispute only after the merger of the Gram Panchayat with the corporation (in February 2006).
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47. It is necessary to note that from 16.6.2005 (i.e. the date when claimant's service was allegedly terminated) to February, 2006 (when the Gram Panchayat came to be merged with the corporation), the claimant did not raise dispute.
48. Even after February, 2006 till September, 2008 i.e. for further 2½ years the claimant did not raise any dispute.
49. He woke up only in September, 2008 and demanded relief against the corporation.
50. Now, it would be appropriate to take into account the Notification by which the Gram Panchayat came to be merged with the corporation.
51. The said Notification came to be issued on 14.2.2006. The relevant provision under the said Notification, which relates to transfer of services of employees of the Gram Panchayat to 19 C/SCA/19433/2016 JUDGMENT the Corporation i.e. the relevant clause in the Notification reads thus:
"Transfer all such employees of the specified local authorities, who were in the employment of the specified local authorities on and immediately before the 14th February, 2006 and continued to be so employed, to the said Municipal Corporation on the same terms and conditions which governed them on the 13th February, 2006. "
52. From the said provision it becomes clear that the service of only those employees " who were in the employment" of the local authority "immediately before 14.2.2006" coupled with the condition that " and continue to be so employed"
were to be transferred to the Corporation.
53. Thus, the relevant clause postulates that (a) on 14.2.2006 the employee must be in employment (of concerned Gram Panchayat) (b) he should be in service immediately before 14.2.2006 i.e. on 13.2.2006 he should be on the roll of and in the employment of the Gram Panchayat and (c) not only the employee should be on the rolls of the Panchayat immediately before 14.2.2006, but he should continue to be so employed on 14.2.2006. 20
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54. Undisputedly the respondent did not fulfill the said conditions and that therefore he did not qualify for transfer/ absorption in the Corporation since he did not "continue to be in the service of Panchayat on 14.2.2006" and he was not even in employment "immediately before 14.2.2006" (according to his allegation his service was terminated on 16.6.2005).
55. Besides this, it is also relevant to note that the said condition would be applicable only in respect of permanent employees of the local authority and not to employees who might have been engaged by the Gram Panchayat on adhoc or casual basis.
56. Even if it is assumed that a daily wager or an employee engaged on casual and adhoc basis are deemed to have been included in the said Clause then also in light of the fact that the claimant was not "in the employment of the Gram Panchayat" 21
C/SCA/19433/2016 JUDGMENT on 14.2.2006 and he was also not in employment of the Gram Panchayat immediately before 14.2.2006 and since he did not continue to be employee by the Panchayat on 14.2.2006, the claimant did not qualify for absorption and transfer.
57. Therefore, learned Labour Court is not justified in assuming that the claimant should be termed and considered employee of the corporation.
58. In this context, even if extremely lenient interpretation with regard to above quoted clause of Notification is taken into account then also it would not permit this Court to assume that the claimant was entitled for transfer/ absorption with the corporation and any relief could not have been granted against the corporation inasmuch as on 14.2.2006 the claimant had not even raised industrial dispute.
59. On 14.2.2006 any dispute before learned 22 C/SCA/19433/2016 JUDGMENT Labour Court against alleged termination of the service of the claimant was not pending before the learned Labour Court.
60. Under the circumstances, even if very lenient view in respect of the said clause of the Notification dated 14.2.2006 is taken and even if the matter is considered in light of Section 2(f) of the Industrial Disputes Act (which takes in its fold a person whose service is terminated) then also the respondent would not get any benefit inasmuch as dispute with regard to his termination was not pending before learned Labour Court on 14.2.2006.
61. On the contrary, the claimant raised dispute almost 2 years after 14.2.2006.
62. In this view of the matter, any dispute against the corporation could not have been raised.
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63. Even otherwise, any relief against the corporation could not have been passed by the learned Labour Court.
64. Besides this, it is also relevant to note that the claimant actually failed to establish that his service came to be terminated by the Panchayat and that his service came to be terminated on 16.6.2005.
65. Since any material regarding termination of his service was not available on record and even the Sarpanch was not examined as a witness by the claimant to support his allegation that his service came to be terminated on 16.6.2005, the possibility that the claimant might have abandoned the service from 16.5.2005 or even prior to that could not have been ruled out.
66. Unfortunately the learned Labour Court did not examine the claimant's case from the said perspective and mechanically believed claimant's 24 C/SCA/19433/2016 JUDGMENT version which the claimant failed to corroborate and support with any independent evidence.
67. It is necessary to note that the corporation was in a very vulnerable position inasmuch as it had not terminated service of the claimant, it had not idea what happened before 4 years and the record which it inherited from Gram Panchayat did not reflect any factual aspect.
68. In this view of the matter, the leaned Labor Court ought to have been more cautious and strict in accepting respondent's uncorroborated and unsubstantiated, bald and oral allegation.
69. In light of the said facts the learned Labour Court could not have ignored the contention that the dispute was raised after inordinate delay. The case on hand before learned Labour Court involved special and peculiar facts and circumstance wherein the delay caused by the claimant involve Special significance and it was 25 C/SCA/19433/2016 JUDGMENT more relevant aspect than in other ordinary cases where the workman belatedly raise dispute.
70. In present case the leaned Labour Court committed error in dismissing the corporation's objection. The Court committed error in rejecting the objection on the ground that the industrial dispute does not contain any provision with regard to the same. In this context the said decision and observation by learned Labour Court is contrary to the decision by Hon'ble Apex Court in case of Prabhakar vs. Joint Director, Sericulture Department [(2015) 15 SCC 1] wherein Hon'ble Apex Court observed that:
"8. From the facts narrated above, it becomes clear that for a period of fourteen years no grievance was made by the petitioner qua his alleged termination. Though it was averted that the petitioner had approached the Management time and again and was given assurance that he would be taken back in service. there is nothing on record to substantiate this. No notice was served upon the Management. There is no assurance given in writing by the Management at any point of time. Such assertions are clearly selfserving. Pertinently. even the Labour Court has not accepted the aforesaid explanation anywhere and has gone by the fact that the dispute was raised after a delay of fourteen years. Therefore, keeping in mind the aforesaid facts, we would decide the issue which has arisen, namely, whether reference of such a belated claim was appropriate.
9. It may be stated that the question is of utmost importance as it is seen that many times. as in the instant case, the workers raise dispute after a number of years of the cause of action. Whether the dispute can still be treated as surviving? Or whether it can be said that the dispute does not exist when the workmen concerned after their say termination kept quiet for a number of years and thus acquiesced into the action?
20. At this stage, it may be pointed out that admittedly the law of 26 C/SCA/19433/2016 JUDGMENT limitation does not apply to industrial disputes. The 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 a 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.
24. Again in Vazir Sultan Tobacco Co. Ltd. v. State of AR". the Andhra Pradesh High Court held that reference made nearly six years after in:
dispute amounted to being inordinate, unreasonable and unjustifiable.
25. In Nedungadi Bank Ltd. v. KP. Madhavankutt'yl4 the Court cautioned that power of reference should be exercised reasonably and in a rational manner and not in a mechanical fashion. It was specifically observed the power to make reference cannot be exercised to revive settled matters or to refer stale disputes in spite of absence of statutory limitation period. The Court not only reiterated that the courts had power of judicial review. though to limited extent, but also made the following pertinent observations on delay: (SCC pp. 460 6l. Paras 68) "6. Law does not prescribe any timelimit for the appropriate Government to exercise its powers under Section 10 of the Act.
It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subjectmatter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.
7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 27 C/SCA/19433/2016 JUDGMENT 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.
8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court, In National Engg. Industries Ltd. v. State of Rajasthan" this Court observed: (SCC 13. 393, para 24) '24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act, Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference"
29. If one examines the judgments in the aforesaid perspective, it would be easy to reconcile all the judgments. At the same time, in some cases the Court did not hold the reference to be bad in law and the delay on the part of the workman in raising the dispute became the cause for moulding the relief only. On the other hand, in some other decisions, this Court specifically held that if the matter raised is belated or stale that would be a relevant consideration on which the reference should be refused. Which parameters are to be kept in mind while taking one or the other approach needs to be discussed with some elaboration, which would include discussion on certain aspects that would be kept in mind by the courts for taking a particular view. We, thus, intend to embark on the said discussion keeping in mind the central aspect which should be the forefront, namely, whether the dispute existed at the time when the appropriate Government had to decide whether to make a reference or not or the Labour Court/Industrial Tribunal to decide the same issue coming before it.
34. To understand the meaning of the word "dispute", it would be appropriate to start with the grammatical or dictionary meaning of the term;
"Dispute'. to argue about, to contend for, to oppose by argument, to call in question to argue or debate (with, about or over) a contest with words; an argument; a debate; a quarrel;"
35. Black's Law Dictionary, 5th Edn., p. 424 defines "dispute" as under:
"DisputeA conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."
36. Thus, a dispute or difference arises when demand is made by one 28 C/SCA/19433/2016 JUDGMENT side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of the petitioner on 141985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for a number of years? Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after a lapse of several years and on making such demand dispute would come into existence at that time. It can always be pleaded by the employer in such a case that after the termination of the services when the workman did not raise any protest and did not demand his reinstatement, the employer presumed that the workman has accepted his termination and, therefore, he did not raise any dispute about his termination. It can be said that workman, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a "dispute" what had otherwise become a buried issue.
37. Let us examine the matter from another aspect viz. laches and delays and acquiescence.
38. It is now a wellrecognised 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 nonsuited 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 lnjunction appointment of Receiver, etc. These principles are also applied In the wit petitions tiled under Articles 32 and 226 of the Constitution of India In such cases, courts can still refuse relief where the delay on the petitioners part has prejudiced the respondent even though the petitioner might have 3 Come to court within the period preset abide by the Limitation Act.
40. Likewise, it a patty having a tight stands by and sees another acting in a manner inconsistent with that right and makes no objection while the ac is in progress he cannot afterwards complain This principle is based on the doctrine of acquiescence implying that In such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
41. 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 loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other c 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 d sound public policy that if a person does not exercise his right for a long time then such a right is non existent."
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71. The learned advocate for the respondent relied on the decision rendered in cases of
(i)Bhimani Khadi Gramodyog Sangh v. Jitendra Malshi Ninjar passed in SCA No.15171 of 2010 dated 19.6.2017;
(ii) State of Gujarat v.Parmar Rasikbhai Makanbhai passed in SCA No. 23361 of 2006 dated 20.01.2017;
(iii) Mahemdabad Municipality v. Rajubhai M. Sodha Parmar & 1 passed in SCA No. 417 of 2014 dated 13.12.2016;
(iv) Mahuva Nagar Palika v. Saidkhusan Alemiya passed in SCA No.14073 of 2007 dated 7.12.2016;
(v) Kutchh District Panchayat v. Jayendrasinh Dilubha Vaghela passed in SCA No.9081 of 2009 dated 22.11.2016;
(vi) Jamnagar Municipal Corporation v. R.M.Dattani passed in SCA No.11173 of 2009 dated 16.11.2016;
(vii) Dhoraji Municipality v. Badhabhai Dahyabhai Sindhav (Bharwad) passed in SCA No.149 of 2008 dated 10.11.2016.
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C/SCA/19433/2016 JUDGMENT
72. I have considered the said decisions. Each and every decision on which the learned advocate for the claimant relies, stand on different footing and they are distinguishable on facts and that therefore final conclusion or decision in cited decisions cannot be applied in present case.
73. For reason mentioned above, it has emerged that the impugned award cannot be sustained. The learned Labour Court has failed to appreciate relevant aspects and allowed itself to proceed on unsustainable presumption. Learned Labour Court has mechanically and without application of mind accepted the respondent's oral and bald allegations which are neither supported nor corroborated by independent evidence. Several relevant aspects have been misconstrued and wrongly considered and the said error led the learned Labour Court to incorrect and unjustified and unsustainable decision. Even the most important and relevant document (Notification) 31 C/SCA/19433/2016 JUDGMENT and its relevant Clause have been ignored. The direction passed by learned Labour Court are not sustainable and deserves to be quashed and set aside. Therefore following order is passed:
The impugned award is set aside. Accordingly the petition is allowed. Rule is made absolute.
(K.M.THAKER, J) saj 32