Gujarat High Court
Vadodara Mahanagar Corporation vs Municiapl Commissioner on 21 June, 2018
Equivalent citations: AIRONLINE 2018 GUJ 139
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/430/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 430 of 2018
In
SPECIAL CIVIL APPLICATION NO. 13753 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VADODARA MAHANAGAR CORPORATION KAMDAR KARMACHARI
UNION
Versus
MUNICIPAL COMMISSIONER
================================================================
Appearance:
MR RD RAVAL(716) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2
MR NILESH A PANDYA(549) for the RESPONDENT(s) No. 1
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C/LPA/430/2018 JUDGMENT
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 21/06/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal is directed against the order dated 14.08.2017 passed by the learned Single Judge whereby, the challenge to the award passed by the Industrial Tribunal, Vadodara dated 17.02.2017 in Reference (IT) No.240 of 2014 has been negatived. The learned Single Judge has rejected the petition by observing that the dispute has been raised belatedly after a delay of 14 years.
2. The facts in brief are as under;
The appellantUnion raised an industrial dispute in the year 2014 and vide order dated 07.07.2014 the appropriate Government referred the same to the Industrial Tribunal. The case of the workman was that he was appointed on a Class IV post as a Sepoy vide order dated 12.06.1999 instead of being appointed on a ClassIII post as a Junior Clerk. The Industrial Tribunal, after examining the issue in detail, rejected the Page 2 of 20 C/LPA/430/2018 JUDGMENT Reference, vide order dated 17.02.2017 by observing that the dispute had been raised belatedly after a delay of 14 years. The same was further challenged in the writ petition and by order dated 14.08.2017, the petition is rejected by the learned single Judge by placing reliance on the judgment of the Apex Court rendered in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota V/s. Mohan Lal, reported in (2013) 14 SCC 543.
3. Learned advocate Mr. R.D. Raval appearing on behalf of the appellantUnion has vehemently argued that the learned Single Judge has failed to appreciate the correct position of law. He has stated that the law of limitation does not apply in the same manner as it applies to the civil matters. He has submitted that the Industrial Disputes Act, 1947 ("the Act", for short) does not provide for dismissal of a dispute on the ground of delay and that in a situation where a reference has been made, proper decision on merits has to be given by the Labour Court/Industrial Tribunal. He has asserted that both the Industrial Tribunal as well as the learned Single Judge have wrongly applied the principle of delay and laches since the application was one filed u/s.10(1)(c) of the Act. He has further submitted that the learned Page 3 of 20 C/LPA/430/2018 JUDGMENT Single Judge has not properly appreciated the judgment rendered in the case of Sapan Kumar Pandit V/s. U.P. State Electricity Board and others, reported in (2001) 6 SCC 222 and has incorrectly applied the decision rendered by the Apex Court in the case of Mohan Lal (supra).
3.1 Learned advocate Mr. Raval has further submitted that the respondentCorporation had never resisted the making of reference on the ground of delay at the initial stage. Hence, it was not open for the respondentCorporation to raise such an issue at a subsequent stage. Mr. Raval has also contended that the matter should have been decided on merits and that the workman should have been granted relief by moulding it since he was working as a Junior Clerk and his Department had been taking clerical work from him. He has stated that the workman was appointed as a Junior Clerk on 30.12.2015 after following proper procedure.
3.2 Mr. Raval further contended that the judgment relied upon by the learned Single Judge is with regard to termination and therefore, it would not apply to the case of the workman as the dispute pertains to appointment. Hence, the relief could have been suitably moulded by granting him notional benefits and denying the actual Page 4 of 20 C/LPA/430/2018 JUDGMENT benefits. He has further submitted that the workman was entitled to be appointed on the ClassIII post of Junior Clerk as he was H.S.C. Pass with 62% marks. He has drawn attention of this Court to the Circular dated 23.09.1985 issued by the respondentCorporation laying down the policy for compassionate appointment. He has submitted that the respondentCorporation is mixing up the issue of appointment of the workman on compassionate ground and appointment on direct recruitment basis on the post of Junior Clerk. He has submitted that as per the Circular dated 23.09.1985, the requisite criteria laid down by the respondentCorporation for appointment to the said post is S.S.C. Pass with minimum 58% marks with relaxation up to 40%. He has also stated that it is an undisputed fact that the workman has passed H.S.C. with 62% marks and hence, he would be entitled for appointment to the Class III post of Junior Clerk in the respondent Corporation.
4. In support of the aforesaid contentions raised by learned advocate Mr. Raval, reliance has been placed on the order dated 01.05.2018 passed in Misc. Civil Application No.01 of 2017 in Letters Patent Appeal No.906 of 2016. He has submitted that, as observed by the Division Bench, reference cannot be rejected on the ground Page 5 of 20 C/LPA/430/2018 JUDGMENT of delay and hence, appropriate relief is required to be granted in case there is some delay in raising the dispute by the workman.
5. Reliance is also placed by Mr. Raval on the judgment rendered by the Apex Court in the case of U.P. State Electricity Board v. Rajesh Kumar, reported in (2003) 12 SCC 548 for the proposition of law that the validity of reference cannot be questioned at a later stage, if the same is not objected by the respondent at the initial stage. Mr. Raval has also drawn attention of this Court to the judgment rendered by the Apex Court in the case of Sapan Kumar Pandit (supra) for the proposition of law that a long delay for making reference could be considered by the adjudicating authorities by moulding the reliefs.
6. Lastly, it is submitted by Mr. Raval that the present matter may be remanded to the learned Single Judge or to the Industrial Tribunal for deciding the issue on merits since neither the learned Single Judge nor the Industrial Tribunal has dealt with the merits of the case. Hence, the matter may be remanded for the grant of appropriate relief by moulding the same. No further contention has been raised.
7. Learned advocate Mr. Nilesh Pandya appearing Page 6 of 20 C/LPA/430/2018 JUDGMENT on behalf of the respondentCorporation has submitted that the father of the appellant, who was working as a Sepoy with the respondent Corporation, was declared medically unfit and in his place, the workman was appointed on a Class IV post after examining his qualification. He has submitted that appointment to the post of Junior Clerk, which is a ClassIII post, is done through direct recruitment after undergoing regular selection process. He has also submitted that in the year 1999, the workman had accepted his appointment to the post of Sepoy in place of his father. He also submitted that the workman had never approached the respondentCorporation seeking appointment to the post of Junior Clerk and no demand was raised for 14 years. He has also submitted that no explanation was offered by the workman before the Industrial Tribunal regarding the delay and hence, the Industrial Tribunal was justified in rejecting the reference. Mr. Pandya has submitted that the judgment cited by Mr. Raval in Rajesh Kumar's case (supra) has been subsequently considered by the Apex Court in the case of Krishi Utpadan Manid Samity, Manglor V/s. Pahalsinh, reported in (2007) 12 SCC 193, in which it is held that delay defeats equity. He has, thus, submitted that the order of the learned Single Judge affirming the award of the Industrial Tribunal does not require Page 7 of 20 C/LPA/430/2018 JUDGMENT interference at the hands of this Court.
8. We have heard the learned counsel for the respective parties at length and have also perused the award passed by the Industrial Tribunal as well as the order of the learned Single Judge.
9. The entire controversy raised in the present appeal as well as the issue before the Industrial Tribunal and the learned Single Judge rests only on one issue - whether the Industrial Tribunal as well as the learned Single Judge were justified in rejecting the demand raised by the workman only on the ground of delay. The secondary issue is that even if there was a delay in raising the dispute, whether the relief prayed for by the workman could have been granted by moulding the reliefs.
10. In the recent decision rendered in the case of Prabhakar V/s. Joint Director, Sericulture Department and Another reported in (2015) 15 SCC 01, the Supreme Court after a detailed scrutiny and examination of various judgments on the aspect of delay and limitation in making reference, as well as moulding the reliefs in such cases, has observed thus:
Page 8 of 20C/LPA/430/2018 JUDGMENT "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.
36. Thus, a dispute or difference arises when demand is made by one 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 01.04.1985, 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 Page 9 of 20 C/LPA/430/2018 JUDGMENT 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.
40. Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right 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 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.
42.2 Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and / or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.
42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has Page 10 of 20 C/LPA/430/2018 JUDGMENT to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are latches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, it the workman is able to give satisfactory explanation for these latches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be nonexistent dispute which cannot be referred.
44. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."
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11. The Apex Court, in paragraph44 of the above decision, has summarized the entire case law and has observed that the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is a 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.
12. The observations made by the Apex Court in the preceding paragraphs spells out that the dispute arises when one party makes a demand and the other party rejects it and if he does not make the demand and / or raise the issue thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists and the workman has to give satisfactory explanation for these laches and delays and demonstrate that the dispute is still alive and 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 Page 12 of 20 C/LPA/430/2018 JUDGMENT existent dispute which cannot be referred. In the present case, it is an admitted fact that the workman was appointed on the ClassIV post of Sepoy vide order dated 22.06.1999 after due verification of his educational qualifications. He was appointed on compassionate ground on the post of his father, who was also serving as a Sepoy at the time of his death. It is not disputed that the post of Sepoy was a ClassIV post. After 14 years of his appointment on the post of Sepoy, the workman raised a dispute seeking appointment on the ClassIII post of Junior Clerk with retrospective effect. It is to be noted that at the relevant time i.e. in the year 1999, the workman had accepted his appointment on the post of Sepoy without any demur and he continued to work as such till the year 2014. Even if it is considered that the workman was working on the post of Junior Clerk, after being regularly appointed in the year 2015, as averred in the Letters Patent Appeal, then it would be a worst case for him since it appears that he raised the dispute on a misconceived notion that he is eligible for the said post right from his inception in service in 2014 before he was regularly selected in 2015. Thus, after 14 years, without raising any demand or making any application before the respondent authorities requesting to consider his case for Page 13 of 20 C/LPA/430/2018 JUDGMENT appointment to the post of Junior Clerk, he has raised an industrial dispute. No explanation for such long delay has been given by the workman either before the Labour Court or before the learned Single Judge. Thus, it can be safely concluded that the dispute raised by the workman can be treated as dead. It is also not disputed that the post of Junior Clerk is a ClassIII post. The said post is required to be filledin through direct recruitment. However, we are not entering into the merits of the case since the issue before us is squarely covered by the judgment rendered by the apex Court in the case of Prabhakar (supra). However, the fact remains that the dispute has been raised after a delay of 14 years and hence, as per the law enunciated by the Apex Court in the aforesaid case, no relief can be granted to the respondentworkman.
13. Another aspect which necessitates response is that whether the workman is entitled to any of the reliefs by moulding the same on the ground of delay. As observed by the Apex Court in the case of Prabhakar (supra), if there is no agitation by the workman 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 the same and the same cannot be termed as an "existing dispute". In such a situation, Page 14 of 20 C/LPA/430/2018 JUDGMENT the "appropriate Government" can refuse to make reference. In the alternative, the Industrial Tribunal / Labour 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. It is also further observed 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. As observed by us, in the present case, no dispute can be said to be in existence since the appellant had acquiesced his rights of being appointed to the post of Junior Clerk, as he had accepted his compassionate appointment to the ClassIV post without any protest and had continued on the same for 14 years.
14. Learned advocate Mr. Raval has endeavored to differentiate the issue by suggesting that in case of a dispute raised under Section 10(1)(c) of the Act where some relief is granted by the Industrial Tribunal, a burden is cast upon the employer whereas, in the present case, the workman is seeking appointment on a ClassIII post and therefore, the case of the workman stands on a better footing in comparison to a dispute raised under Section 10(1)(c) of the Act, which pertains to termination of the workman and Page 15 of 20 C/LPA/430/2018 JUDGMENT hence, reliance placed on the decision in Mohanlal (supra) by the learned Single Judge is misconceived. In our considered opinion, the aforesaid submission is misconceived. Section 10(1)(c) of the Act speaks of reference of dispute to a Labour Court which relates to a matter specified in the Second Schedule whereas, Section 10(1)(d) of the Act speaks of reference of dispute to an Industrial Tribunal specified in the Second or the Third Schedule. In the present case, the demand raised by the workman was referred by the appropriate Government to the Industrial Tribunal, Vadodara. Item II of the Third Schedule mentions "Any other matter that may be prescribed". Thus, it will be devastating to acknowledge that the bar of delay and laches can only be applied to the issues raised under the First Schedule of Section 10(1)(c) of the Act and not to other matters or disputes mentioned under both the first as well as the second schedule. The quintessential feature is the examination of the 'existence' of the industrial dispute and the delay in raising the same. The issue raised in the present proceedings pertains to the belatedly raising an industrial dispute, existence of dispute and the power of appropriate Government in making the reference. The definition provided in Section 2(k) of the Act defining "industrial dispute" encompasses the Page 16 of 20 C/LPA/430/2018 JUDGMENT present dispute which inter alia provides any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour of any person. Thus, it cannot be said that reliance placed by the learned Single Judge on the judgment of the Apex Court in the case of Mohan Lal (supra) is misconceived.
15. Thus, when the workman had accepted his appointment on the ClassIV post of Sepoy in place of his father in the year 1999, he had acquiesced with such appointment and had waived his right of being appointed on the ClassIII post of Junior Clerk and therefore, the workman cannot raise dispute seeking appointment on a ClassIII post with retrospective effect after a period of 14 years without offering any explanation of such delay. Significantly, prior to raising an industrial dispute by the appellant Union, the workman has never approached the employer seeking appointment to the post of Junior Clerk. Therefore, the contention raised by learned advocate Mr. Raval to suitably mould the reliefs in the present case does not merit acceptance and the same is rejected.
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16. The other contention raised by learned advocate Mr. Raval that the Industrial Tribunal as well as the learned Single Judge ought to have decided the dispute raised by the workman on merits and that it could not have been rejected solely on the ground of delay also does not merit acceptance since it was not necessary for the Industrial Tribunal as well as the learned Single Judge to dwell upon the merits once they came to the conclusion that the demand raised by the workman was barred by delay and laches.
17. As regards the contention raised by the learned advocate for the appellant that since the respondent had not resisted the reference at the relevant point of time, it would not be open for the respondent to raise the issue of delay at this stage is concerned, in our opinion, the same deserves to be rejected in view of the observations made by the Apex Court in the case of Prabhakar (supra) wherein it is held that "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 in to the act of termination and therefore, at the time when the dispute is raised it had become stale and was not an "existing Page 18 of 20 C/LPA/430/2018 JUDGMENT dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court / Industrial Tribunal 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. Thus, there is no bar on the Labour Court / Industrial Tribunal in examining whether there is an industrial dispute in existence even if the employer fails to challenge the reference at the relevant time. The issue of raising an industrial dispute by the workman and the reference by the appropriate Government on a stale or a nonexistence dispute can always be scrutinized and examined by the Labour Court / Industrial Tribunal and the same is amenable to judicial review. Thus, in the opinion of this Court, in the present case, the Labour Court and the learned Single Judge have not committed any illegality or indiscretion by rejecting the reference on the ground of delay and laches. In light of the law enunciated by the Apex Court in the case of Prabhakar (supra), we are not inclined to deal with the judgments cited at the bar.
18. In view of the aforesaid analysis and observations, we do not find any infirmity or illegality in the order dated 14.08.2017 passed Page 19 of 20 C/LPA/430/2018 JUDGMENT by the learned Single Judge. Consequently, the appeal, being meritless, is accordingly, dismissed. The Civil Application also stands disposed of.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) PRAVIN KARUNAN Page 20 of 20