Gujarat High Court
Kunwarjibhai Hudiyabhai Gamit vs Range Forest Officer on 27 January, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/11495/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11495 of 2015
With
SPECIAL CIVIL APPLICATION NO. 13516 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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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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KUNWARJIBHAI HUDIYABHAI GAMIT....Petitioner(s)
Versus
RANGE FOREST OFFICER....Respondent(s)
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Appearance:
MR UT MISHRA, ADVOCATE for the Petitioner(s) No. 1
MR. BIPIN BHATT, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 27/01/2017 & 1/2/2017
ORAL JUDGMENT
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1. In Special Civil Application No. 13516 of 2016 Rule returnable forthwith. By consent of the parties, the matters are taken up for final hearing.
2 These petitions arise out of judgement and award dated 12.5.2015 passed by the Labour Court, Surat, in Reference (LCS) No. 127 of 2005 whereby one Kunwarjibhai Hudiyabhai Gamit (for convenience referred to as "the workman") was ordered to be reinstated with continuity of service and backwages of 20% after setting aside the termination of the workman's employment on 15.8.2001 as illegal for breach of section 25F of the Industrial Disputes Act ("the Act" for short). While the workman seeks reinstatement as also full backwages; the Range Forest Officer, Songad (for convenience referred to as "the employer") questions the said judgement and award, principally on two grounds being (i) want of evidence as regards continuous service of the workman within the meaning of section 25B of the Act; (ii) maintainability of delayed reference by 5 years of the so-called termination.
3 Briefly stated, the relevant facts of the case are that the workman claimed to be in service with the employer since 1.6.1992 as daily wager. He asserted having completed 240 days in each calendar year preceding the date of termination i.e. 15.8.2001. The workman raised industrial dispute by making a complaint before the Assistant Labour Commissioner on 23.9.2004. On failure of conciliation, the said complaint eventually culminated into reference wherein the workman filed statement of claim before the Labour Court. Notice came to be issued but the employer did not appear to oppose the Page 2 of 30 HC-NIC Page 2 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT reference/claim of the workman. Affidavit by the workman was filed in support of his oral evidence and the matter proceeded in absence of the employer.
4 In the Labour Court, reliance was placed upon the oral evidence of the workman stating that he was employed as per the details mentioned above and was illegally terminated on 15.8.2001 on which date he had completed 240 days as defined in section 25B of the Act. The documents which constituted evidence were in the nature of statement of claim; its service upon the employer; service of the oral evidence of the workman upon the employer; and the closure pursis having been tendered by the workman. Along with the said evidence, numerous judicial pronouncements were relied upon and the finding was recorded that the employer was an industry and the workman was employed by the employer herein and that oral termination without notice pay or compensation was illegal. The claim, as regards backwages, was partly answered in affirmative awarding 20% to the workman. 5 For recording above conclusions, the oral evidence of the workman formed principal consideration. Additionally, lack of oral and documentary evidence on the part of the employer formed the basis for drawing adverse inference against the employer. It was also noticed by the Labour Court that the workman had not produced any evidence establishing his employment with the employer.
6 As regards backwages, the principle of law that the backwages would not be automatic on reinstatement was taken into consideration by the Labour Court along with qualification of the workman, possibility of work being available, lack of dedicated efforts by the workman and the financial condition of the employer. A presumption was also Page 3 of 30 HC-NIC Page 3 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT raised about the possibility of the workman generating income on the ground that for a long time during the pendency of the reference, the workman could not have been without job. 7 In the light of the above facts and circumstances and judicial pronouncements cited at the Bar, the contentions raised by the respective learned counsel for the parties are required to be appreciated.
8 The first contention requiring resolution is regarding existence of live industrial dispute on the date of reference. It would be apt to refer to one of the judicial pronouncements to appreciate the said contention. In Prabhakar v. Joint Director, Sericulture Department & Another (2015) 15 SCC 1, relied upon by the learned Assistant Government Pleader. Various principles in regard to delay, laches, acquiescence, waiver and existence of the dispute and satisfaction of the appropriate Government regarding such existence of live dispute and the definition of the `industrial dispute' and the `dispute' have been elaborately explained. The relevant principles of law as summarized in paras 42.1 to 42.6 are thus:
"42.1 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 Page 4 of 30 HC-NIC Page 4 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT 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.
42.2 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 Page 5 of 30 HC-NIC Page 5 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT still exist.
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 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 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.
42.4 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 Page 6 of 30 HC-NIC Page 6 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT 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.
42.5 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.
42.6 In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and Page 7 of 30 HC-NIC Page 7 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT 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."
9 It can be noticed from Prabhakar (supra) that the Apex Court in placitum (g) and (h) made it clear that it was considering the case where the dispute was raised after a long period, and it is only in such cases that the question of existence of dispute may have to be gone into.
10. There can be no difficulty in cases where the period of limitation is provided in the statute. The difficulty may arise only when no period of limitation is statutorily provided. The question then would arise as to what could be considered to be a reasonable period for brining an action in such cases. One may argue that in absence of the statutory period of limitation, it would be permissible to bring an action at any point of time. This exactly was answered in Prabhakar (supra). It has been inter alia held that the action brought after unreasonable delay sans explanation is not entertainable. The case does not lay down a proposition as to what could be a reasonable period for an action under the statute where no period of limitation is provided. The question which arises for consideration in the instant case as to whether a period of little over three years is Page 8 of 30 HC-NIC Page 8 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT unreasonable for disputing the cessation of employment of the workman. In the context of the said facts what is required to be examined in the instant case is whether there should be a demarcating line between `reasonable delay' and `unreasonable delay'. In other words it is required to be examined as to whether the action brought within a reasonable period can be said to be suffering from delay at all. As indicated in Prabhakar (supra) explanation would be necessary for sustaining the action suffering from unreasonable delay. As a necessary corollary no explanation would be necessitated for an action brought within a reasonable period. It would be unreasonable and absurd to say that `unreasonable delay' would start running from the very day of the cause of action exposing the disputant to an explanation for sustaining an action. Necessarily `unreasonable period' would start on expiry of a `reasonable period.' Therefore depending upon the facts and circumstances of each case a line demarcating `reasonable' and `unreasonable period' will have to be drawn more particularly when no statutory period of limitation is provided. In such cases judicial discretion will have to be exercised after taking into consideration the facts and circumstances of each case; the purpose of legislation; the prejudice caused to the person objecting to the maintainability of the action and other similar relevant circumstances. If the court finds that a reasonable period has been consumed for an action registered before it, it would not seek any explanation for its sustenance.
11. In the facts of the present case it is found that the petitioner is a labourer belonging to the economically weaker section of the society and the legislation with which this court Page 9 of 30 HC-NIC Page 9 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT is concerned is a legislation beneficial to the workman. Except stating that the action brought by the workman after a period of three years suffers from unreasonable delay, it is not pointed out as to how the respondent concerned is prejudiced. It would not be out of place to mention at this stage that after the petitioner's action against his employer, two amendments in Section 2A(1) of the I.D. Act under which the right came to be conferred upon the individual workman to raise an industrial dispute were effected providing for limitation of three years and one year respectively for raising a dispute referred to in the said Section. Although such amendments being prospective in nature cannot be applied to the facts of the present case wherein the cause of action arose on 15.8.2001 when the service of the workman were terminated in respect of which industrial dispute was raised on 23.9.2004 by lodging a complaint with the conciliating officer; relevant it would be to note the legislative intent of providing for above statutory period of limitation at one point of time. Thus at one point of time a period of three years of limitation was considered to be reasonable for which no explanation was necessary. Being a beneficial legislation to the workman and its purpose and object, and in absence of the argument that the industrial dispute if permitted to be raised within the aforementioned period would have an unsettling effect upon the industrial peace or financial capacity of the employer; in the opinion of this court the industrial dispute raised a little over a period of three years in the facts of the case cannot be said to be suffering from an unreasonable delay requiring explanation from the workman.
13. Another limb of argument advanced by the learned AGP that in absence of demand, or expression of the Page 10 of 30 HC-NIC Page 10 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT difference of opinion before the employer by the employee, there existed no industrial dispute, needs consideration at this stage. The said contention is raised principally relying upon the use of the expression "industrial dispute cannot be said to exist until and unless the demand is made by the workman and it has been rejected by the employer" in Prabhakar (supra). The learned Assistant Government Pleader also placed reliance upon Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat & others (AIR 1968 SC 529).
13.1 As is evident from the foregoing discussion as also on perusal of Prabhakar (supra) and Sindhu Resettlement Corporation Ltd. (supra), none of the cases appear to be an authority on the proposition of law as to the manner and the stage of raising industrial dispute. In Prabhakar (supra) the Apex Court was principally concerned with the question as to whether industrial dispute raised after unreasonably long lapse can be said to be a live industrial dispute at the time of its reference. While answering the said question, the definition of `dispute' and `industrial dispute' were explained and in that process the above quoted expression came to be applied; no question of the manner and the stage of raising of the industrial dispute fell for consideration in Prabhakar (supra). In fact, as can be noticed in the following discussion, such a question was left open. Similarly, in Sindhu Resettlement Corporation Ltd. (supra) the following question was raised in the context of the argument that the industrial dispute raised before the management being confined to retrenchment compensation and not seeking reinstatement, appropriate Government had no jurisdiction to make reference for reinstatement: (para 2) Page 11 of 30 HC-NIC Page 11 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT "that the dispute that was raised by respondent No. 3 as well as respondent No. 2 with the management of the appellant was confined to compensation for retrenchment and did not relate to the validity of the retrenchment or reinstatement,so that the Government of Gujarat had no jurisdiction to refer the dispute to the Industrial Tribunal which it did."
13.2 It would, thus, be noticed that the focus was on the nature of the dispute and the question whether a dispute must be raised before the employer or management so as to constitute an industrial dispute was not in contemplation therein. In the light of the question posed, it was observed in paragraph No. 4 thus:
"The second ground urged on behalf of the appellant is that in this case no. dispute relating relating to reinstatement was' actually raised either by respondent No. 2 or respondent No. 3 before. the reference was made to the Industrial Tribunal by the Government of Gujarat and,. consequently. that reference itself was , without jurisdiction. When Mr. A. K. Sen, counsel for the. appellant, raised this ground, it Was urged by" Mt. Gopalakrishnan on behalf of the respondents that this ground was being taken for the first time in this Court and had not been raised at any earlier stage, so that it should not be allowed to be taken in this Court. It, however,appears that the question of jurisdiction of the State Government to refer the demand for reinstatement for adjudication to the Tribunal was specifically urged in the High Court and the High Court actually dealt with it in its judgment, dismissing the petition filed on behalf of the Page 12 of 30 HC-NIC Page 12 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT appellant. The High Court clearly mentions that the counsel for the appellant contended that the Industrial Tribunal had no jurisdiction as the question referred to it and which it was called upon to adjudicate relating to reinstatement of respondent No. 3 in the service of the Corporation would not fall within the scope of item 3 in the Second Schedule to the Industrial Disputes Act, 1947. It was further urged that, since the third respondent was neither discharged nor dismissed by the appellant, the question of relief of reinstatement would not arise under that item and, there being no item under which the demand would fall, the State Government had no jurisdiction to refer such a demand for adjudication to the Tribunal. These points urged before the High Court would cover the ground now urged by Mr. Sen before us. It is true that the form in which it was urged before the High Court was slightly different. There, the point raised was that a demand for reinstatement, when there had been retrenchment only and no discharge or dismissal, could not be held to constitute an industrial dispute. On the facts of the case as they appeared from the material before the Tribunal, it is now urged that, in fact, the demand, which was being pressed with the management by both the respondents, was in respect of retrenchment compensation and not reinstatement. The demand for reinstatement seems to have been given up, because the respondents realised that the services of respondent No. 3 had not been terminated by discharge or dismissal, but by retrenchment only, and that retrenchment not being. the result of any unfair Page 13 of 30 HC-NIC Page 13 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT labour practice or victimization, respondent No. 3 could only claim retrenchment compensation. In the evidence given before the Tribunal, there were included two letters written by the two respondents containing the demand for retrenchment compensation. We have already referred to one of these letters which was sen on 7th March, 1958 by respondent. No. 3 to the Administrative Officer of the. appellant. The other letter was sent on 10th July 1959 by the General Secretary of respondent No. 2 in which again it was stated that Sindhu Hotchief had paid retrenchment dues to respondent No. 3 in respect of the services he had rendered in than Company, but the appellant Corporation was responsible for his retrenchment dues for the service which had been rendered by respondent No. 3 in the, appellant Corpn., The prayer was that, as the appellant had refused him re-employment, arrangement should be made to pay his retrenchment dues according to section 25F of the Industrial Disputes Act, 1947. Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a, question of rein- statement as 'an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment Page 14 of 30 HC-NIC Page 14 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under sub-section (4) of section 12 of the Industrial Disputes Act, in respect of the dispute between the,appellant and workmen employed under it over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from 21st February, 1958. It was urged, by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is being examined-is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958, but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their Page 15 of 30 HC-NIC Page 15 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with 523 their employer cannot become an industrial dispute Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the Tribunal, had ever existed between the appellant Corpn. and the respondents and the State Government in making a reference, obviously committed an error in basing its opinion 'on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958, respondent No. 3 and respondent No. 2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents."
13.3 Having regard to the settled legal position that the precedent must be read for what it decides and not what Page 16 of 30 HC-NIC Page 16 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT appears to be from the language used by the court, and having regard to the fact that neither in Sindhu Resettlement Corporation Ltd. nor Prabhakar both (supra) the question on hand has been decided, in the opinion of this court reliance upon the said cases by the learned Assistant Government Pleader is misconceived.
13.4 In Shambu Nath Goyal v. Bank of Baroda (1978) 2 SCC 353 the concern of the court is indicated in paragraph No. 1 thus:
"This appeal by special leave arises out of an award made by Industrial Tribunal, Chandigarh in Reference No. 3/C of 1970 between S.N. Goyal, workman and the management of the Bank of Baroda, by which the industrial dispute raised by the workman complaining about his illegal dismissal from service and seeking reinstatement was rejected holding that in the absence of any demand having been made by the concerned workman on the respondent bank and consequently no industrial dispute having come into existence the Government was not competent to refer the dispute to the Tribunal for adjudication."
(emphasis supplied) 13.5 Thus a direct question as to whether demand must be made with the employer by the workman so as to constitute an industrial dispute was posed in Shambu Nath Goyal (supra) and the observations in paragraph No. 5 in this context are thus:
"A bare perusal of the definition would show that where there is a dispute or difference between the Page 17 of 30 HC-NIC Page 17 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT parties contemplated by the definition and the disputes or difference is connected with the employment or non-employment or the terms of employment or, with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute Would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine ,qua non, unless of course in the case of public utility service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are 'dispute' or 'difference'. What is the connotation of these two words. In Beetham v. Trinidad Cement Ltd.(1). Lord Denning while examining the definition of expression 'Trade dispute' in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
"by definition a 'trade dispute' exists whenever a 'difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening". " (emphasis supplied) 13.6 In paragraph No. 6 it was observed thus:
"Thus the term 'industrial dispute' connotes a real and Substantial ,difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the Page 18 of 30 HC-NIC Page 18 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non- employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tentamount to re-writing the section.
(emphasis supplied) 13.7 It is worthwhile to note at this stage that when it comes to sub-section (1) of section 10 of the Act, the appropriate Government is called upon to form an opinion on the question whether industrial dispute exists or is apprehended? As indicated in Prabhakar (supra) it is at this juncture that the appropriate Government would be finally expressing its opinion about existence or non-existence or apprehension of industrial dispute.
14. It may be recapitulated that the Act is silent in regard to the manner and stage of raising `industrial dispute'. For the purpose of taking measures for securing and preserving amity and relations between the employer and the workman and with a view to endeavour to compose any material opinion in respect of the matters of common interest of the employer and employee and for the purpose of conciliation and inquiring into any matter connected with or relevant to an industrial dispute as also for the purpose of adjudication of the industrial dispute various authorities like Works Committee; Joint Management Committee (so far as the State of Gujarat is concerned), Conciliation Officers, Board of Page 19 of 30 HC-NIC Page 19 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT Conciliation, Court of Inquiry, Labour Courts, Tribunals and National Tribunals are contemplated under the Act. However, the manner and stage of raising of industrial dispute has not been contemplated anywhere in the Act and there is no obligation upon the disputant under the Act to make a demand of a right so as to constitute an industrial dispute. This court is not concerned with the demand reference i.e. the reference where the workman may through representative or bodies contemplated under section 36 of the Act, raise certain demands in connection with their service conditions. The court is concerned with the reference in regard to cessation of service of individual workman.
15. As noticed in Prabhakar (supra) the existence of an industrial dispute at the time of reference is a sine-qua-non to justify the reference. A reference may have been sought in regard to the stale demand, but still it should be an industrial dispute. As to what would constitute the dispute and industrial dispute, has been elaborated in Prabhakar (supra) keeping in view the said elaboration, the facts of the case are required to be appreciated.
16. On receipt of the complaint by the Conciliation Officer, certain rights / obligations are cast upon him under sections 11 and 12 of the Act. The Conciliation Officer is empowered to enter into the premises occupied by establishment to which the dispute relates, after giving a reasonable notice of such entry. He is also empowered to enforce attendance of any person for his examination as also to call for and inspect any document relevant to the industrial dispute in order to verify the implementation of any award or carrying out any other duty imposed upon him under the Act and for that purpose the Conciliation Officer is vested with the same powers as the civil Page 20 of 30 HC-NIC Page 20 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT court under the Code of Civil Procedure. Similarly, he is empowered to investigate the dispute and all matters affecting the merits for the purpose of bringing about settlement under sections 12 of the Act. A conjoint reading of sections 11 and 12 of the Act would thus indicate that to prima facie ascertain existence or apprehension of industrial dispute, the Conciliation Officer is empowered to exercise powers under sub-sections (2) and (4) of section 11 of the Act and for the purpose of settling the dispute the Conciliation Officer is empowered to exercise powers under section 12 of the Act. 16.1 Dismissal, discharge, retrenchment or otherwise termination of services of the workman by the employer is nothing but assertion of his right to do so and seeking conciliation under sections 11 and 12 of the Act by the workman is nothing but expression of difference of opinion within the meaning of section 2(k) of the Act as explained in Prabhakar (supra), in absence of any specific provision casting an obligation upon the disputant to express the difference of opinion in any other manner. When the disputant makes an assertion under sub-section 11 and (1) of Section 12 of the Act, the disputant in the opinion of this Court, enters into an argument or raises a contention or enters into the debate or a quarrel or comes into conflict or raises controversy against the action of the opposite party or conflicts a claim or right or asserts a claim, demand contrary to the claim of his opponent that his employment is illegally brought to an end. It is a matter for which a conciliation is sought and upon which issue may be joined by his opponent. When the disputant makes a grievance about wrongful act, in relation to his employment with the conciliation officer, it cannot be disputed that such an act of his is connected with his employment or Page 21 of 30 HC-NIC Page 21 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT non-employment.
17. Thus, having regard to the above discussion, the contention that the workman must first make a written demand with the employer for constitution of disputes or industrial dispute must fail.
18. This brings this court to the last contention with regard to the nature and the extent of the burden to be discharged by the workman to establish continuous service within the meaning of section 25B of the Industrial Disputes Act so as to successfully assail the action of retrenchment under section 25F of the Industrial Disputes Act. Indisputedly, the petitioner did not participate in the proceedings at all and the nature of evidence available to the Labour Court for rendering the decision on the above point principally was the statement of the workman on the affidavit. Whether that was sufficient for inferring continuity of service is a question to be answered in the light of the following decisions cited at the Bar:
18.1 In Manager, Reserve Bank of India, Bangalore v. S. Mani & ors. (2005) 5 SCC 100, similar question was answered in paragraphs No. 28 to 33 thus:
"28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the Appellant on the premise that they have failed to prove their plea of abandonment of service stating:
"It is admitted case of the parties that all the 1st parties under the references CR No. 1/92 to 11/92 Page 22 of 30 HC-NIC Page 22 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT have been appointed by the 2nd party as ticca mazdoors. As per the 1st parties, they had worked continuously from April, 1980 to December, 1982. But the 2nd party had denied the above said claim of continuous service of the 1st parties on the ground that the 1st parties has not been appointed as regular workmen but they were working only as temporary part time workers as ticca mazdoor and their services were required whenever necessary arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the 1st party, since the 2nd party had denied the above said claim of continuous period of service, it is for the 2nd party to prove through the records available with them as the relevant records could be available only with the 2nd party."
29. The Tribunal, therefore, accepted that the Appellant had denied the Respondents' claim as regard their continuous service.
30. In Range Forest Officer Vs. S.T. Hadimani [(2002) 3 SCC 25], it was stated: (SCC p. 26 para 3) "3..... In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show Page 23 of 30 HC-NIC Page 23 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.
[See also Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400]
31. In Siri Niwas (supra), this Court held: (SCC pp. 197-98, para 13) "13. The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment :
Page 24 of 30HC-NIC Page 24 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT
(i) one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months."
It was further observed: (SCC p. 198, para 14) "14. As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case."
32. Yet again in Hariram (supra), it was opined:
(SCC p. 250, para 10) "10. We cannot but bear in mind the fact that Page 25 of 30 HC-NIC Page 25 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants.
33. Mr. Phadke placed strong reliance on H.D. Singh (supra) to contend that adverse inference was drawn therein for non-production of certain documents. H.D. Singh (supra) was rendered on its own fact. In that case, a Special Leave Petition was entertained by this Court directly from the Award passed by the Industrial Tribunal. Before this Court, both the parties filed affidavits and several documents. The workmen therein categorically disclosed the number of days they had worked in each year. In that case the name of the workman was struck off as he had allegedly concealed his educational qualification; purportedly on the basis of a confidential circular issued by the bank on June 27, 1976 to the effect that the matriculates will not be retained in the list. As the workman therein in reply to the letter of the Bank stated that he was not a matriculate in 1974 and he passed the examination only in 1975, he was not given any work even after July, 1976 without issuing any written notice terminating his services. Holding that the workman had been retrenched from service, as noticed hereinbefore, affidavits of the parties were filed and, thus, some evidence had been adduced. The number of actual days worked by the workman therein was also brought on records by the Respondent. The said decision, thus, having been rendered in the fact Page 26 of 30 HC-NIC Page 26 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT situation obtaining therein does not constitute a binding precedent.
18.2 In Surendranagar District Panchayat v. Dahyabhai Amarsinh (2005) 8 SCC 750, the law in this regard was indicated in paragraphs No. 16 to 18 thus:
"16. In Range Forest Officer vs. S.T. Hadimani, (2002) 3 S.C.C. 25 - (SCC at p. 26, para
3), this Court held that:
"In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan & Another, (2004) 8 S.C.C. 161, Municipal Page 27 of 30 HC-NIC Page 27 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT Corporation, Faridabad vs. Siri Niwas, (2004) 8 S.C.C. 195 and M.P. Electricity Board vs. Hariram, (2004) 8 S.C.C. 246, this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.
18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have Page 28 of 30 HC-NIC Page 28 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact & situation and in the light of the law on the subject, we find that the workman- respondent is not entitled for the protection or compliance of Section 25F of the Act before his service was terminated by the employer. As regards non- compliance of Sections 25G and 25H suffice is to say that Witness Vinod Mishra examined by the appellant has stated that no seniority list was maintained by the department of daily wagers. In the absence of regular employment of the workman, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so called seniority no relief could be given to him for non- compliance of provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is Page 29 of 30 HC-NIC Page 29 of 30 Created On Sat Aug 12 06:07:45 IST 2017 C/SCA/11495/2015 JUDGMENT in existence and could have be proved."
19. In the instant case, it is true that the employer did not appear and contest the proceedings; at the same time the workman also did not requisition from the employer the relevant material to substantiate his bare statement of being in continuous service. Therefore, in the light of the ratio discerned from the above authorities, the Labour Court was not justified in drawing adverse inference and shifting the burden on the employer, of establishing the continuous service of the workman.
20. In the light of the above discussion, Special Civil Application No. 11495 of 2015 instituted by the workman must fail and is accordingly dismissed. Rule is discharged. Special Civil Application No. 13516 of 2016 filed by the employer must succeed and is accordingly allowed. The impugned judgement and award dated 12.5.2015 passed by the Labour Court, is quashed and set aside. Rule is made absolute with no order as to costs.
(G.R.UDHWANI, J.) (pkn) Page 30 of 30 HC-NIC Page 30 of 30 Created On Sat Aug 12 06:07:45 IST 2017