Gujarat High Court
Mansinghbhai Chhaganbhai Bhojaviya vs The Deputy Executive Engineer on 11 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/20207/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20207 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20198 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20199 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20202 of 2019
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MANSINGHBHAI CHHAGANBHAI BHOJAVIYA
Versus
THE DEPUTY EXECUTIVE ENGINEER
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Appearance:
DIPESH D CHHAYA(8075) for the Petitioner(s) No. 1
KHUSHBU D CHHAYA(8093) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 11/02/2020
ORAL ORDER
1. Since, all these petitions, filed under Articles 226 and 227 of the Constitution of India, involve common question of law and facts, they are heard together and being disposed off by this common order.
2. The facts are drawn from Special Civil Application No. 20207 of 2019, which runs as under.
2.1 The petitioner, herein, was working with the respondent No.1 and was, uninterruptedly, doing the work of regular and permanent nature, as a dailywager. Respondent No.1 is engaged in port activities, which are undertaken by the State of Gujarat.
2.2 According to the petitioner, respondent No.1-establishment is an 'Industry', as defined under Section 2(J) of the Industrial Disputes Act, 1947 (in brief, 'the ID Act'), and therefore, the petitioner is a workman, as defined under Section 2(S) of the ID Act. It is, further, urged that, in Page 1 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER wake of the above, they are amenable to the provisions of the ID Act.
2.3 Being aggrieved with his illegal termination from service, the petitioner raised an industrial dispute under Section 10(1) of the ID Act, by filing Reference (LCR) No. 35 of 2007, where, the question before the Labour Court, Rajkot, was, as to whether, the petitioner is entitled to reinstatement with all other benefits or not.
2.4 The petitioner filed his Statement of Claim, stating, therein, that he was working with respondent No.1, since, 01.10.1981 as a Khalasi / labourer, continuously, and he was being paid Rs.54/- per day. According to him, in February, 1993, his services came to be terminated by respondent No.1 by adopting unfair labour practice and while so doing, he was neither issued notice nor was paid notice pay or the retrenchment compensation, and therefore, it was urged that there is clear violation of the provisions of Section 25(F) of the ID Act. It was, further, alleged that, while terminating his services, no seniority list was maintained, which is in breach of Section 81 of the ID Act. It was also lamented that after ending his services, several new workers were employed and thereby, respondent No.1 has committed the breach of the provisions of Section 2(H) of the ID Act.
2.5 Respondent No.1 also filed a detailed reply.
2.6 After availing opportunity to both the sides, the Labour Court decided the reference against the petitioner, herein, and in favour of respondent No.1, vide judgment and award dated 20.06.2019, which has aggrieved the petitioner. He is, therefore, before this Court, seeking following reliefs:
"(8). ...
Page 2 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER(a) This Hon'ble Court may kindly be pleased to issue a writ of certiorari, mandamus, prohibition or any other writ order and be further pleased to;
(b) To quash and set aside the order and award passed by the Labour Court in Ref. (LCR) 35/2007 dated 20.06.2019 by declaring the same as illegal.
(c) To pass an order against respondent No.1 to re- instate the petitioner with continuity of service and other benefits on his original post or to grant lump-sum compensation of Rs.5/- lacs and admissible legal dues."
3. It is the grievance on the part of the petitioners that merely delay and latches have been made the basis by the Labour Court to deny them the benefit, disregarding the fact that the petitioners had worked for more than five years. It is also urged that, while terminating their services, no procedure had been followed by respondent No.1. Moreover, when a request was made to supply the additional documentary evidence, the same were not furnished.
4. This Court has heard the learned Advocate, Ms. Chhaya, for the petitioners, herein, who has fervently argued before this Court, seeking to rely on the order of this Court, Dated: 01.05.2018, passed in Misc. Civil Application No.1 of 2017 in Letters Patent Appeal No. 906 of 2016. It is her say that, since, the Reference has not been challenged by the respondents, now, it cannot question the delay in preferring the Reference. She, further, has urged that, even if, there is delay of 19 years, the Labour Court ought not to have held the same against the petitioners and instead, it ought to have molded the reliefs, accordingly. She has sought to rely on the decision of the Apex Court in 'S.M. NILAJKAR AND OTHERS VS. TELECOM DISTRICT MANAGER', AIR 2003 SC 3553, where, the Apex Court has held that considering the delay, the Labour Court ought to have molded the relief, accordingly, Page 3 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER rather than non-suiting the petitioner on the ground of delay.
5. Having, thus, heard and also having considered, carefully, the judgment of this Court rendered in Special Civil Application No. 20706 of 2016 and the allied matters, Dated: 24.10.2019, it is true that, in that case, this Court has allowed the reference, which was made after the delay of 19 years. It is to be noted that in the case of 'UP STATE ELECTRICITY BOARD VS. RAJESH KUMAR', (2003) 12 SCC 548, the Apex Court was considering the question of validity and correctness of the common award passed by the Labour Court, U.P., Varanasi, under which the respondent workmen were held to be entitled to reinstatement with continuity of service along with backwages for the period between 26.07.1997 to 29.07.1997.
5.1 In the matter before the Apex Court, on the basis of the evidence the Labour Court had recorded the finding of fact that the respondent- workman did work for 240 days. This was based on the evidence of the workman and the attested copy of the list showing names of the respondents. The correctness of the list was never challenged before the Labour Court by the Management by producing the contra-evidence or the original records, which it had in its possession. Further, the Executive Engineer, who had been examined for and on behalf of the appellant-Board, being not in service on the date of termination of the services of the workmen, it was held that non-consideration of his evidence by the Labour Court shall not affect the case in any manner, and therefore, the Labour Court hold that the order terminating the services of the workmen was illegal.
5.2 It was also contended before the High Court that the reference was made after delay of 19 years, and therefore, the same could not have been entertained by the Labour Court. However, the High Court Page 4 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER did not accept such a contention and upheld the order of the Labour Court. Therefore, the challenge was taken before the Apex Court, where, it has held that on facts, the question need not be considered by it, more particularly, when the appellant failed to challenge the order of reference made in the year 1997, and thereby, dismissed the appeal filed by the Electricity Board.
5.3 'S.M. NILAJKAR AND OTHERS' (Supra), where, the Apex Court observed that it is common knowledge that the Government as a welfare State floats several schemes and projects generating employment opportunities, though they are short-lived. The objective is to meet the need of the moment. The benefits of such schemes and projects is that for the duration they exist, they provide employment and livelihood to such persons as would not have been able to secure the same but for such schemes or projects. The Apex Court, further, held that, if, the workmen employed for fulfilling the need of such passing- phase-projects or schemes were to become a liability on the employer- State by too liberally interpreting the labour laws in favour of the workmen, then, the same may well act as a disincentive to the State for floating such schemes and the State may opt to keep away from initiating such schemes and projects even in times of dire need, because it may feel that by opening the gates of welfare it would be letting-in onerous obligations entailed upon it by extended application of the labour laws. Sub-clause (bb) in the definition of retrenchment was introduced to take care of such like-situations by Industrial Disputes (Amendment) Act, 1984 with effect from 18.08.1984.
5.3.1 The Apex Court, further, held that termination must fall within one of the four exceptions carved out, viz.
(i) that the workman was employed in a project or Page 5 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily- wager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract.
(iv) the workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment.
5..3.2 In the very decision, the Apex Court held that the delay would, certainly, be fatal, if, it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, in the matter before the Apex Court, the delay was not found to be very huge or of such nature or so culpable as to disentitle the appellants for any relief. The Apex Court, further, held that, at the best, there can be modification of reliefs in such cases, if, the Court finds that the delay is not fatal to the case.
5.4 In 'PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT & ANOTHER', (2015) 15 SCC 1, the Apex Court, observed and held as under:
"20. At this stage, it may be pointed out that admittedly Page 6 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER 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. 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.
XXX XXX XXX
37. Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
38. It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Page 7 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER 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 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 non-existent.
Page 8 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER42. 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 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 pre-condition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still 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 Page 9 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute 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 non-existent dispute which cannot be referred. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the 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 Page 10 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an 'existing dispute'. In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.
43. We may hasten to clarify that in those cases where the Court finds that dispute still existed, though raised belatedly, it is always permissible for the Court to take the aspect of delay into consideration and mould the relief. In such cases, it is still open for the Court to either grant reinstatement without back wages or lesser back wages or grant compensation instead of reinstatement. We are of the opinion that the law on this issue has to be 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."
5.5 In the case of 'SHAHAJI V. EXECUTIVE ENGINEER, PWD', 2007 (115) FLR 674, the reference was made after about 16 years from the date of termination of service of the workman, and therefore, the Page 11 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER Labour Court did not entertain the same, on the ground of delay, where, the Hon'ble Supreme Court observed that, even if, there was delay in making the reference to the Labour Court, if, it came to the conclusion that the termination was illegal, it could have suitably molded the reliefs to be granted to the workman in view of the delay.
5.5.1 This decision also has been referred to by the Division Bench of this Court in Misc. Civil Application No.1 of 2017 in LPA No. 906 of 2016.
5.6 In the instant case, as can be noticed from the facts, which have emerged on record, the services of the petitioners came to be terminated in the year 1993. It, further, appears that, pending reference, a request was made on the part of the petitioners to produce additional documentary evidence. However, the same was rejected by the Labour Court vide order dated 25.02.2014 and there is nor challenge to the same. During the course of hearing also, no document was produced, indicating continuous, uninterrupted services rendered by the petitioners with respondent No.1 from 1981 to 1993.
5.7 The Labour Court also noted the bifurcation given of the total number of days that the petitioners had worked with respondent No.1 and it indicated that in none of the years from 1981 to 1993, the petitioners had completed 240 days work in any year. Therefore, even if, there was no notice given at the time of termination of services of the petitioners, the fact remains that there was no challenge to the same for the period of 15 years. Therefore, in absence of any documentary evidence or seniority list, when, a request was made to produce additional documentary evidence and when, the same was rejected by Page 12 of 13 Downloaded on : Sun Jun 14 15:54:56 IST 2020 C/SCA/20207/2019 ORDER the Labour Court, there is no challenge to the same also. Under the circumstances, there was no possibility for the Labour Court to hold in favour of the petitioners and because of such delay, the reliefs has been negated. Otherwise, going by the decision of the Apex Court in 'PRABHAKAR' (Supra), and also noticing very carefully, the Statement of Claim, which also does not have a whisper as to why there is such a huge delay, the request of the petitioners cannot be acceded to. Further, even, on the oath, before this Court, the petitioners have not stated as to why they remained silent for so many years. Thus, the Labour Court having acted within its bounds, this Court finds no reason to interfere with the same.
6. Resultantly, all these petitions fail and are DISMISSED. No order as to costs.
(SONIA GOKANI, J) UMESH/-
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