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SCA/9498/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9498 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
NARAYAN
M. CHAUDHARI - Petitioner(s)
Versus
GOVERNMENT
OF INDIA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PH PATHAK for
Petitioner(s) : 1,MR RC PATHAK for Petitioner(s) : 1,
MS DAWAWALA
for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 22/08/2008
ORAL JUDGMENT
Rule.
Ms. Dawawala, learned advocate, waives service of notice of rule on
behalf of the respondents. With the consent of learned advocates
appearing on behalf of the respective parties, the matter is taken up
for final hearing today.
In
this petition, the petitioner has challenged order dated 17.9.2007
whereby, the appropriate Government i.e. respondent No.1 declined to
refer the petitioner’s dispute for adjudication on the ground that
the dispute was raised belatedly after almost 11 years.
It
is the case of the petitioner that his service came to be terminated
w.e.f. 1.11.1994 without following procedure prescribed by law.
Aggrieved by the said action, the petitioner approached the
authorities under the Industrial Dispute Act, 1947 and conciliation
proceedings resulted into failure. As per the submission of the
petitioner, the conciliation officer forwarded the failure report to
the appropriate Government pursuant to which, the appropriate
Government was expected to take decision about the request for
referring the dispute for adjudication to the labour court or
tribunal as the case may be. However, the respondent No.1 declined to
make Order of reference citing the ground of delay in raising
industrial dispute.
Mr.
Pathak appears for the petitioner and Ms. Dawawala appears for the
respondents.
Mr.
Pathak submitted that it is not within the jurisdiction of the
respondent No.1 to decide as to whether the dispute should be
rejected on the ground of delay or not inasmuch as such decision
would fall within the jurisdiction of the labour court or tribunal
and considering the facts and circumstances, the labour court or the
tribunal may instead of rejecting the reference on any ground
including the ground of delay, even appropriately mould the relief
while taking decision regarding the relief that may be prayed for by
the petitioner in reference proceedings. Mr. Pathak submitted that
the law in this regard is well settled since the judgment of the
Hon’ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh &
Another V/s. State of Bihar & Others reported in AIR 1989
SC 1565. Mr. Pathak also relied upon the judgment reported in
2006 (3) GLR 2591.
Ms.
Dawawala submitted that the petitioner has raised a stale
dispute after almost 11 years since the alleged termination
and the respondent No.1 therefore, cannot be said to have made any
error in declining to refer such stale dispute.
The
said submission of Ms. Dawawala is not in consonance with the
position settled by the judgment of the Hon’ble Apex Court and also
of this court. It may be that after considering the relevant facts
and circumstances involved in the matter, the labour court also may
take the same view or the labour court may mould the relief while
passing award in the reference but it is a matter of labour court’s
jurisdiction to take decision on this count and it is not within the
jurisdiction of the respondent No.1 to decide such issue. In this
regard, it is relevant to take note of the below mentioned
observations of the Hon’ble Apex Court :-
AIR
1989 SC 1565
?S11. It
is true that in considering the question of making a reference under
Section 10(1), the Government is entitled to form an opinion as to
whether an industrial dispute ?Sexists or is apprehended??, as
urged by Mr. Shanti Bhusan. The formation of opinion as to whether an
industrial dispute ?Sexists or is apprehended?? is not the same
thing as to adjudicate the dispute itself on its merits. In the
instant case, as already stated, the dispute is as to whether the
convoy drivers are employees or workmen of TELCO, that is to say,
whether there is relationship of employer and employees between TELCO
and the convoy drivers. In considering the question whether a
reference should be made or not, the Deputy Labour Commissioner
and/or the Government have held that the convoy drivers are not
workmen and, accordingly, no reference can be made. Thus, the dispute
has been decided by the Government which is, undoubtedly not
permissible.
12. It
is, however, submitted on behalf of TELCO that unless there is
relationship of employer and employees or, in other words, unless
those who are raising the disputes are workmen, there cannot be any
existence of industrial dispute within the meaning of the term as
defined in Section 2(k) of the Act. It is urged that in order to form
an opinion as to whether an industrial dispute exists or is
apprehended, one of the factors that has to be considered by the
Government is whether the persons who are raising the disputes are
workmen or not within the meaning of the definition as continued in
Section 2(k) of the Act.
13. Attractive
though the contention is, we regret, we are unable to accept the
same. It is now well settled that, while exercising power under
Section 10(1) of the Act, 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, which would certainly be excess
of the power conferred on it by Section 10 of the Act.??
1999
(6) SCC 82
?S10. It
follows, therefore, that the provisions of Article 137 of the
Schedule to the Limitation Act, 1963 are not applicable to the
proceedings under the Act and that the relief under it cannot be
denied to the workman merely on the ground of delay. The plea of
delay if raised by the employer is required to be proved as a matter
of fact by showing the real prejudice and not as a merely
hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone. Even in a case
where the delay is shown to be existing, the tribunal, labour court
or board, dealing with the case can appropriately mould the relief by
declinning to grant back wages to the workman till the date he raised
the demand regarding his illegal retrenchment / termination or
dismissal. The court may also in appropriate cases direct the payment
of part of the back wages instead of full back wages.??
Considering
the aforesaid aspects, the petition is partly allowed. The order
dated 17.9.2007 (Annexure ? C) is set aside and the matter is
remanded to the respondent No.1 for taking appropriate decision in
accordance with settled legal position by keeping in focus the
judgments of the Hon’ble Apex Court. It is expected that the
respondent No.1 shall take necessary decision, after hearing the
petitioner and concerned respondents, as early as possible.
With
the aforesaid observations and direction, present petition is partly
allowed. Rule made absolute to the aforesaid extent. No order as to
costs.
[K.M.Thaker,
J.]
kdc
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