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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Bhupendrabhai Tarachand Lodha – Petitioner
Versus
Ahmedabad Municipal Corporation – Respondent
Special Civil Application No. 5617 of 2021
Decided On : 29-09-2021
Constitution of India, 1950 - Articles 32 and 226 - Industrial Disputes Act, 1947 - Section 25(F), 10(1)(c), 2-A, 10 - Doctrine of laches and delay – Remedies for enforcement of rights conferred by this part - Petitioner, on realising that corporation has engaged some workers after his termination immediately raised industrial dispute in year - Whether dispute is still existing or live dispute and has not become a stale claim - Whether dispute is alive or it has become stale/non-existent at time when workman approaches appropriate Government is an aspect which would depend upon facts and circumstances of each case and there cannot be any hard-and-fast rule regarding time for making order of reference - Whether dispute existed at time when appropriate Government had to decide whether to make a reference or not or Labour Court/Industrial Tribunal to decide same issue coming before it - Whether a reference is to be made or not, appropriate Government is not to go into merits of dispute.
Findings of the Court - After survey of various judgments on issue of delay in raising an industrial dispute, Supreme Court has held that if a workman does not raise a dispute for a long time, it can be presumed that he has acquiesced into act of the employer in terminating his services and, therefore, accepted his termination - It is also held that a right not exercised for a long time is non-existent and even when there is no limitation period prescribed by any statute relating to certain proceedings; in such cases courts have coined doctrine of laches and delay - Supreme Court has asserted that words “industrial dispute exists” are of paramount importance, unless there is an existence of an industrial dispute, no reference is to be made - Thus, it is held that an “existence or apprehension of an industrial dispute is a sine qua non for making reference.” Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record - 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 obvious risk to industrial peace from entertainment of claims after long lapse of time, it is necessary also to take into account unsettling effect which it is likely to have on employers' financial arrangement and to avoid dislocation of an industry - Workman was unable to satisfy whether he pursued his illegal termination and kept the dispute alive - Nothing is produced before Labour Court in this regard - Petitioner-workman was required to be vigilant enough to raise industrial dispute within a reasonable period - It is trite that delay comes in way of equity - Enormous delay of 15 years in raising dispute will eclipse retrenchment which was in violation of Section 25(F) of I.D. Act - Court is not expected to exercise its discretion to such indolent persons, who approach Court of law as per their leisure.
Result- Writ petition disposed of.
JUDGMENT :
A.S. SUPEHIA, J.
1. Rule. Learned advocate Mr. Munshaw waives service of notice of rule on behalf of the respondent.
Learned advocate Mr. T.R. Mishra has submitted that the petitioner, on realising that the corporation has engaged some workers after his termination immediately raised industrial dispute in the year 2014. Learned advocate Mr. Mishra has placed reliance on the decision of the Apex Court in the case of Brahmbhatt Jayesh Bhupatray vs. State of Gujarat rendered in Letters Patent Appeal No. 1554 of 2018 dated 13.03.2019, in support of his submission that the Reference cannot be rejected on the ground of delay. It is submitted that the Reference could not have been rejected on the day when violation of Section 25(F) of the Industrial Disputes Act, 1947 (for short “I.D. Act”) is proved.
2. At the outset, learned advocate Mr. Munshaw has submitted that the industrial dispute raised after a delay of 14 years and hence, the Labour Court has precisely rejected the reference. He has submitted that even as per the statement of claim made by the petitioner workman, he was orally terminated on 03.10.1999, whereas the reference has been filed in the year 2014. In support of his submissions, learned advocate Mr. Munshaw has placed reliance on the decision of the Apex Court rendered in the in the case of Prabhakar vs. Joint Director, Sericulture Department and Another, 2018 (15) SCC 1.
3. It is the case of the petitioner that he was engaged by the respondent corporation in the year 1997 and his service was illegally terminated on 03.10.1999. The petitioner, thereafter, raised industrial dispute and a copy of Form under section 10(1)(c) of Industrial Disputes Act, 1947, along with application of condonation of delay was filed. The appropriate Government has referred the dispute to the Labour Court, Ahmedabad and the same was registered as Reference (LCA) No. 290 of 2014. The petitioner accordingly filed the statement of claim before the Labour Court, Ahmedabad, and the respondent corporation also filed a written statement. It appears that during the proceedings, the respondent corporation has examined one Vikarambhai Bhanabhai Patel, who was working as an Assistant Manager (P&A) in the Garden Department. The Labour Court, Ahmedabad thereafter, passed the impugned award dated 26.06.2019 rejecting the reference on the ground of delay.
4. This court has perused the award. As the facts narrated above, the same would suggest that the dispute has been raised after a period of 15 years and there is nothing in defence either oral or documentary evidence produced by the petitioner before the Labour Court indicating that the workman has kept the dispute alive by approaching the respondent corporation with regard to alleged illegal termination. The Labour Court, though has held that the termination of the workman was in violation of Section 25(F) of the I.D. Act.
5. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Prabhakar (supra), the Supreme Court while analyzing the aspect of delay in reference and its impact on industrial dispute, has held thus:
28.1. The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.
28.2. The words “at any time” used in Section 10 would support that there is no period of limitation in making an order of reference.
28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.
28.4. Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference.
29. If one examines the judgments in the aforesaid p
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