Gujarat High Court
Hassam Noor Mohmed vs State Of Gujarat And Ors. on 31 January, 1996
JUDGMENT M.R. Calla, J.
1. The petitioner seeks to assail the order dated 18.6.1995 (Annexure "E") passed by the Ministry of Labour, Government of India refusing the reference under the Industrial Disputes Act, 1947 on the sole ground that, disputes was raised belatedly without furnishing adequate reasons for the same.
2. The petitioner was appointed as casual worker with the Kandla Dock Labour Board in 1979. From 18.7.1986, he was not allowed to work. He moved an application on 5.1.1987 before the authorities of the Kandla Dock Labour Board that he should be allowed to join the duty. The petitioner has stated that no response in writing was given but he was orally informed that he will be taken back for work within short time. Without giving any details or particulars of the representation with regard to the dates or the officers before whom the oral representations were made, a bald statement has been made that the petitioner made several representations orally but same were not considered and when he again made representation on 1.8.1994 and on 23.8.1994 he was informed that his belated appeal cannot be considered. After receiving this reply dated 28.8.1994, the petitioner approached the Assistant Labour Commissioner for initiating conciliation proceedings. A failure report was submitted on 15.2.1995 and on 18.6.1995 the impugned order was passed refusing the reference on the sole ground of delay. When the matter came up before the Court the Division Bench Judgment reported in 1995 (2) GLH (UJ 9) Page 15 Kheda Jilla General Mazdoor Mandal v. State of Gujarat, was cited by the learned counsel of the petitioner and on that basis notice was issued. It was also pointed out that on the basis of this Division Bench Judgment of our own High Court the petitions involving the question of refusal of the reference on the sole ground of delay have been entertained. However, Mr. Shailesh Brahmbhatt after service of the notice entered appearance on behalf of Respondent No. 3 i.e., Kandla Dock Labour Board and he has filed an affidavit-in-reply dated 14.12.1995 seeking to traverse the claim of the petitioner. In this affidavit-in-reply, it has been inter alia stated that the petitioner had approached the conciliation officer at the belated stage after a period of about seven and half years. I has also been stated that the petitioner was given wage card on 11.5.1978. This wage card was discontinued in October, 1979 when benefit of attendance allowance was extended to 350 casual workers. At the time when the demand of casual workers increased in March, 1982 he was again issued a wage card on 25.3.1982; last booking as on ATCW was obtained by the worker in May, 1983 and thereafter the petitioner did not turn up for booking at call stand. He failed to submit his photograph for issue of photo identification card. He had also failed to turn up for verification etc., and therefore, as per the orders of the then Deputy Chairman, Kandla Dock Labour Board, his name was removed from there rolls of the Additional Temporary Workers vide notice dated 16.10.1985. It has been then stated in this affidavit-in-reply under the signature of Shri R.L. Nagawadia, working as Secretary-cum-P.O. in Kandla Dock Labour Board that the Chairman, Kandla Dock Labour Board condoned the absence of the five ATCW dated 13.6.1986 received from the Deputy Chairman, Kandla Dock Labour Board with instruction to enrol them in the first pool of causal workers. But the identification mark entered in the register (A Black mole on left side of stomach) was not seen on the body of the person, who presented himself as Shri Hassam Noor Mohmed and hence as discussed with the Deputy Chairman, Kandla Dock Labour Board, the wage and of Shri Hassam Noor Mohmed was cancelled with effect from 1.8.1986. With respect to the appeal preferred by the present petitioner Hassam Noor Mohmed it has been stated that it was not considered fit at belated stage after seven and half years to entertain appeal as would appear from the memorandum dated 25.8.1994. It has been further stated that the General Secretary, Transport and Dock Workers Union, Gandhidham took up the matter vide their letter dated 18.1.1994 which was replied by the Administrative Body, Kandla Dock Labour Board vide their letter dated 1.3.1994, that there was no justification to review the case of the present petitioner at this belated stage.
3. Apart from the aforesaid factual submissions Mr. Brahmbhatt has submitted that it cannot be said that the delay is not a relevant consideration for the Government to refuse the making of reference and therefore no exception can be taken to the refusal of the reference on the ground of delay. He has submitted that apart from the fact that there was no question of making any reference and the Government cannot be said to have acted unreasonably in refusing to make the reference, his contention is that even as a question of principle of law it cannot be said that delay in approaching the conciliation officer for raising dispute cannot be a ground for refusing the reference. He a placed reliance on the following decisions :
(1) AIR 1960 SC Pg. 1223, State of Bombay v. K.P. Krishnan.
(2) AIR 1964 SC Pg. 1617, Bombay Union of Journalists v. State of Bombay.
(3) 1987 I CLR Pg. 144, V. Veerarajan & Ors. v. Government of Tamil Nadu.
(4) AIR 1969 LIC Pg. 1884, Madras District Automobile and General Employees' Union v. State of Madras & Ors.
(5) AIR 1964 SC Pg. 1617, Bombay Union of Journalists & Ors. v. The State of Bombay & Anr.
(6) AIR 1990 SC Pg. 255, Jitendra Nath Biswas v. M. S. Empire of India and Ceylone Tea Co.
4. As against its Mrs. Pahwa appearing on behalf of the petitioner has placed reliance on the aforesaid Division Bench decision of the Gujarat High Court in case of Kheda Jilla General Mazdoor Mandal v. State of Gujarat & Ors. (supra) and yet another unreported decision in Special Civil Application No. 3470 of 1995 rendered by the Single Judge of this Court on 29.9.1995. She has vehemently argued that the conciliation officers are not the courts and ultimately it is for the concerned court or the tribunal to accept or reject the reference but the Government cannot refuse the reference on the sole ground of delay and great emphasis has been laid by her on the observations made in the aforesaid decision of Kheda Jilla General Mazdoor Mandal, (supra) wherein it has been observed that appropriate Government is not a Court to which provision of Limitation Act can be made applicable, Government has committed grave error in relying upon the provisions of Limitation Act and refusing to refer the dispute to the appropriate forum. It is true that there is some delay in raising dispute, but she has argued that delay alone cannot be a ground for refusing reference. Mere lapse of time is not the relevant circumstance. It should further be shown that on account of lapse of time certain rights have accrued in favour of the other side and on account of accrual of such rights, the reliefs that may be prayed for by the petitioner are not capable of being granted without causing serious prejudice to the other side. While making these observations, the Supreme Court decision reported in AIR 1993 SC Pg. 802 and AIR 1989 SC Pg. 1565 have been relied upon.
5. I have considered the submissions made on behalf of both the sides. It is not in dispute that the services of the petitioner were finally discontinued in July, 1986 and according to the petitioner himself he has for the first time raised grievance in January, 1987 i.e., after a period of merely six months before the Dock Labour Board itself for allowing him to join duty. There is no explanation worth the name for the period 1987 to 1994 except the bald statement that oral representations were made. Thus more than seven and half years period of delay is not explained. The petitioner again wakes up from the years long slumber in August, 1994 and as it has been stated that the representation (Annexure 'B') was made on 1.8.1994 and with regard to this representation the Kandla Dock Labour Board informed the petitioner on 23.8.1994 that this request cannot be considered at this belated stage and thereafter he has approached the conciliation officer on 28.8.1994 and the Government has passed the impugned order on 18.6.1995 recording therein that the dispute was raised belatedly without furnishing adequate reasons for the same. Thus on the facts given by the petitioner himself and according to the petitioner's own case there is no reasonable explanation for the period 1987 to 1994 and thus non-furnishing of adequate reasons for the delay the impugned order (Annexure 'E') dated 18.6.1995, cannot be said to be without any basis. Now the only question remains is as to whether while considering the question of making reference under Section 10(1) read with Section 12(5) of the I.D. Act, can the appropriate Government refuse reference on the sole ground of delay and for that purpose since several cases have been cited I may deal with the same so as to see as to whether on the sole ground of delay the appropriate Government may refuse the reference or not and as to whether the delay by itself is a relevant consideration or a ground germane for the purpose of refusing the reference.
6. In A.I.R. 1960 S.C. Pg. 1223 while dealing with the similar question the Constitution Bench of Five Judges of the Apex Court in the case of State of Bombay v. K.P. Krishnan, has clearly observed that though consideration of expediency cannot be excluded when Government considers whether or not it should exercise its powers to make a reference it would not be open for the Government to introduce and to rely upon wholly irrelevant or extraneous considerations under the guise of expediency and that it may be open to the Government in considering the question of expediency to enquire whether the dispute raises a claim which is very stale or which is opposed to the provisions of the Act, or is inconsistent with any agreement between the parties and if the Government comes to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference. Thus according to this decision rendered by the Constitution Bench of the Five Judges of the Supreme Court, the claim being stale is certainly such character of infirmity on which the reference can be refused by the appropriate Government.
7. In A.I.R. 1969 LIC Pg. 1484, the Madras High Court has dealt with the matters which the Government make take into consideration while deciding the question of making reference. The Madras High Court in this case has relied upon Supreme Court decision in case of State of Bombay v. K.P. Krishnan, (supra) and another decision reported in A.I.R. 1964 S.C. Pg. 1617 and has observed in para 5 that belatedness was the reason given by the Government for declining to make reference and it could not be said that it was not satisfactory, unreasonable or perverse. In A.I.R. 1964 S.C. Pg. 1617, a decision reported in the case of Bombay Union of Journalists, (supra) it is observed in para 5 that belatedness was the reason given by the Government for declining to make reference and it could not be said that it was unreasonable or perverse. In A.I.R. 1964 S.C. Pg. 1617 on which reliance has been placed by the Madras High Court after referring to State of Bombay v. K.P. Krishnan, (1961) 1 SCR 227 : (AIR 1960 SC 1223) it has been clearly laid down that :
"When the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly on disputed question of fact, purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under S. 10(1) read with S. 12(5), or not".
8. It has been categorically laid down by the Apex Court in this decision that if the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make reference. The principle is therefore, clearly discernible that in case of clearly belated claim the appropriate Government may refuse to make reference.
9. Again in 1987 I C.L.R. 144 = A.I.R. 1987 S.C. Pg. 695 (V. Veerarajan & Ors. v. Principle is laid down as in the decision reported in A.I.R. 1964 S.C. Pg. 1617 (supra) that if the claim is clearly belated the make reference. In A.I.R. 1990 S.C. Pgs. 255 to 259 the same principle has again been reiterated. From the aforesaid decision, it become transperently clear that according to the law laid down by the Supreme Court it is open for the appropriate Government to decline to make reference under Sections 10(1) read with 12(5) of the I.D. Act, in case the claim sought to be agitated is found to be belated. In the facts of this case it has been clearly mentioned in the impugned order and it is otherwise also clear from the facts that the dispute had been raised at a highly belated stage and no adequate reason had been furnished for explaining delay.
10. So far as the cases on which the reliance has been placed by Mrs. Pahwa on behalf of the petitioner, it may straightway be observed that in none of the two decisions i.e., Division Bench judgment dated 8.4.1993 in case of Kheda Jilla General Mazdoor Mandal, and the other case that of Ahmed Miyana v. The State of Gujarat & Ors. rendered in Special Civil Application No. 3470 of 1995 decided on 29.9.1995, the view taken in several Supreme Court decision has been considered. These cases were never cited before the Division Bench and so far as the Single Judge's decision of 29.9.1995 is concerned, there is no reference even to the earlier decision rendered by the Division Bench of this Court on 8.4.1993. The unreported decision dated 29.9.1995 rendered by the learned Single Judge could be of some help to the petitioner but for the view which has been taken by the Apex Court in several decisions which have been discussed hereinabove. In the Division Bench decision dated 8.4.1993 the first question which was considered was with reference to the case of Nityanand M. Joshi & Anr. v. The Life Insurance Corporation of India & Ors. reported in A.I.R. 1970 S.C. Pg. 209 as to whether the Limitation Act applies to the proceedings under the Industrial Disputes Act. The proposition of law that the Limitation Act does not apply to the proceedings under the Industrial Disputes Act is not disputed even by the learned counsel for the otherside. Thus, there is no question of application of the Law of Limitation in the proceedings under the Industrial Disputes Act. The question is as to whether it is open for the appropriate Government to decline to make reference on the sole ground of delay in case the claim is found to be belated. While dealing with this aspect of the matter, the Division Bench has referred to the Supreme Court decision reported in A.I.R. 1993 S.C. Pg. 802 (Dehri Rohtas Light Rly Co. Ltd. v. District Court, Bojpur,) and A.I.R. 1989 S.C. Pg. 1565 (Telco Convoy Drivers Mazdoor Sangh & Anr. v. State of Bihar & Ors.) The case reported in A.I.R. 1993 S.C. Pg. 802, is not at all a case in which there was any controversy with reference to the refusal of reference by the Government on the ground of delay in case of belated claim. It was a case with regard to the demand of the cess under the Bengal Cess Act and the petition which had been filed under Article 226 was found to be belated and the claim was found to be stale and in that context the grievance was raised before the Supreme Court by Dehri Rohtas Light Rly. Co. Ltd. as an appellant. While dealing with the provisions of the Bengal Cess Act the Supreme Court has observed that :
"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts".
11. This decision therefore is not an authority in support of the proposition canvassed by the learned counsel for the petitioner. So far as the High Court's powers under Article 226 of the Constitution of India are concerned, it is the trite law that there is no upper limit or lower limit. The delay has to be decided on the facts of each case. In the facts of a given case, the High Court under Article 226 can entertain the petition at any stage if the Court is satisfied that the delay has been explained. The Division Bench has considered the question of delay and laches in the petitions under Articles 226 and 227 of the Constitution of India with reference to the decision of the Supreme Court in the case of Dehri Rohtas Light Rly. Co. (supra) but with regard to the refusal of making reference it has been made clear by the Supreme Court in more than one decision as discussed in the earlier part of this order that in case of stale claim the appropriate Government may decline to make reference while exercising its power under Sections 10(1) read with S. 12(5) of the I.D. Act. In A.I.R. 1989 S.C. Pg. 1565 (Telco Convoy Drivers Mazdoor Sangh & Anr. v. State of Bihar & Ors.) it has been held by the Supreme Court that :
"While exercising power under S. 10(1) the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, ..."
12. Thus I do not find that this decision has anything to do with the question which has been raised by the present petitioner in this case as to whether it is open for the Government to decline the making of the reference on the sole ground of delay. It is unfortunate and noted with regrets no less than surprise that the aforesaid decisions of the Supreme Court in which it has been repeatedly held that the Government may take into consideration the question of delay while refusing to make reference in cases of belated claims, were not cited either before the Division Bench or before the Single Bench but having analysed the ratio of the aforesaid cases, I am of the considered opinion that this principle appears to be clearly discernible and that in facts of a given case it is open for the Government to decline to make reference in case it is found that the claim sought to be agitated is highly belated, and, it may also be noted that if the cause of dispute or the impugned order is not challenged and the dispute about it, is not sought to be raised for five years together, it must be a relevant ground at the time of exercising powers under Section 10(1) of read with Section 12(5) of the I.D. Act, because an order which has not been able to create any threat to the industrial peace for a very long period it cannot be taken to be a reason for industrial dispute unless some subsequent events take place so as to revive the controversy and so as to be germane to the threat of the industrial peace.
13. Upshot of the aforesaid adjudication is that the impugned order dated 18.6.1995 is not found to be suffering from any infirmity and no interference is warranted. This Special Civil Application has therefore no merit, the same fails and is hereby dismissed. Notice is discharged. No order as to costs.