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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Divisional Controller - Appellant
Versus
Iqbalbhai Kasambhai Mirza and Ors. - Respondents
R/Special Civil Application No. 17971 of 2013 and Civil Application No. 2 of 2022
Decided On : 21-02-2022
Constitution of India, 1950 – Article 226 - Writ of certiorari – Petitioner has submitted that impugned award is required to be quashed and set aside since industrial dispute is raised after 15 years and that too after retirement of petitioner - It is submitted that after holding departmental inquiry, order of punishment of stoppage of increments for two years with permanent effect was passed and dispute has been raised and hence, Industrial Tribunal should not have entertained reference – Held, Court has perused impugned award - It does not reflect that respondent-workman had kept dispute alive for all these years - Industrial Tribunal has misdirected itself in allowing reference since aspect with regard to delay was not appreciated in its true perspective - Industrial Tribunal should have considered that dispute has been raised after retirement of respondent-workman that too after undergoing punishment - It is also not in dispute that though first appeal filed by respondent-workman was rejected by order same has not been referred at all before Industrial Tribunal nor any reference in this regard has been made – In view of law enunciated by Apex Court as well as Division Bench of this Court, respondent-workman said to have waived his right or acquiesced since for all these years, he did not raise any grievance with regard to punishment order and only after his retirement such dispute has been raised - Writ petition succeeds.
Relevant Judgment Excerpts on Delay, Waiver, and Maintainability by Legal Heirs
"The workman having accepted the retrenchment without protest for over a decade, the dispute cannot be considered live after such prolonged inaction, rendering the reference incompetent." (!)
"No limitation is prescribed under the Act, but courts have consistently held that unexplained delay of many years defeats the purpose of industrial adjudication, as the matter ceases to be in praesenti." (!) (!)
"Where the employee remains silent post-termination and makes no demand for reinstatement or wages, it amounts to acquiescence, barring any subsequent challenge even by legal representatives." (!)
"A legal heir cannot resuscitate a stale claim ignored by the deceased workman during his lifetime; the absence of any prior pursuit extinguishes the right." (!) (!)
"Prolonged delay without justification leads to waiver of rights, and tribunals must refuse references to prevent unsettling long-settled employer-employee relations." (!)
"In cases of challenge decades after retrenchment, especially post-death of the workman without prior agitation, the claim is barred by laches and not maintainable." (!) (!)
"The principle is that industrial disputes must be raised promptly; failure to do so implies acceptance, and no relief can be granted on a 'dead' issue." (!)
"Even if delay is condoned in exceptional cases, here the total inaction for 12 years by the workman and further lapse post-death make it untenable." (!) (!)
"Acquiescence by conduct estops the claimant; legal heirs stand in the same position and cannot improve upon the deceased's lapsed rights." (!)
"Reference refused where no explanation for 40+ years' delay; such claims disrupt industrial peace and are rejected outright." (!) (!)
"No moulding of relief possible for non-existent disputes buried by time; writ intervention warranted to quash erroneous awards." (!)
JUDGMENT :
A.S. Supehia, J.
1. The present writ petition has been filed inter alia seeking following reliefs:
2. At the outset, learned advocate Mr. Hardik Rawal appearing for the petitioner has submitted that the impugned award is required to be quashed and set aside since the industrial dispute is raised after 15 years and that too after retirement of the petitioner on 31.07.2008. It is submitted that after holding the departmental inquiry, on 31.03.1992, the order of punishment of stoppage of increments for two years with permanent effect was passed and the dispute has been raised on 12.06.2009 and hence, the Industrial Tribunal should not have entertained the reference.
2.1. In support of his submissions, he has placed reliance on the judgment rendered by the Division Bench of this Court in the case of Vadodara Mahanagar Corporation Kamdar Karmachari Union v. Municipal Commissioner, 2018 (4) GLR 3531.
2.2. Learned advocate has further submitted that against the impugned order of punishment, the respondent-workman had preferred the first appeal, which was dismissed on 09.03.1994 and the same has neither been challenged before the Industrial Tribunal nor any dispute has been raised in this regard. Thus, he has submitted that the writ petition may be allowed by setting aside the impugned award.
3. In response to the aforesaid submissions, learned advocate Ms. Tejal Shah appearing for the respondent-workman has submitted that the impugned award does not require any interference since the respondent-workman was not paid the retirement benefits and hence, he was constrained to raise the industrial dispute. Thus, she has submitted that the Industrial Tribunal, after appreciating the documentary as well as oral evidence, has set aside the punishment order. Thus, she has submitted that the writ petition may be rejected.
4. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
5. The established facts from the record are that by the order dated 31.03.1992, the petitioner imposed the punishment upon the respondent-workman of stoppage of increments for two years with permanent effect. The respondent-workman retired from service on reaching the age of superannuation on 31.07.2008 and the industrial dispute has been raised in the year 2009, which culminated into the reference being Reference (IT) No. 84 of 2009. Thus, the reference has been registered for dispute, which had occurred in the year 1992, when the order of punishment was passed.
6. It is not in dispute that the petitioner, after having retired and after having undergone the punishment of stoppage of increments for two years with permanent effect, has raised the industrial dispute.
7. This Court has perused the impugned award. It does not reflect that the respondent-workman had kept the dispute alive for all these years. The Industrial Tribunal has misdirected itself in allowing the reference since the aspect with regard to delay was not appreciated in its true perspective. The Industrial Tribunal should have considered that the dispute has been raised after retirement of the respondent-workman that too after undergoing the punishment.
8. It is also not in dispute that though the first appeal filed by the respondent-workman was rejected by the order dated 09.03.1994, the same has not been referred at all before the Industrial Tribunal nor any reference in this regard has been made.
9. At this stage, it would be apposite to refer to the decision of the Division Bench in case of Vadodara Mahanagar Corporation Kamdar Karmachari Union (supra), wherein the Division Bench, after considering the decision of the Apex Court in case of Prabhakar v. Joint Director Sericulture Department,
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