SCA/29169/2007 5/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29169 of 2007 ================================================= KANUBHAI NANAKRAM SHARMA - Petitioner Versus ASSISTANT LABOUR COMMISSIONER (CENTRAL) & 3 - Respondents ================================================= Appearance : MR JS BRAHMBHATT for Petitioner: MR AMAR D MITHANI for Respondent : 1, MR MANISH R BHATT for Respondent : 2, NOTICE UNSERVED for Respondent : 3, MR KRUNAL D. PANDYA, LD AGP for Respondent : 4, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/09/2008 ORAL ORDER
Heard learned counsels for the
parties.
The
petitioner who is claiming himself to be a workman has filed this
petition also on behalf of the other workmen listed at Annexure-A,
has assailed the order dated 17/2/2004 passed by the Assistant
Labour Commissioner (Central), Baroda, rejecting the application of
the applicant dated 6/2/2004 raising demand for reinstatement in
service on the ground that way back on 24/8/1987 such a demand was
rejected on the ground that the appropriate government in respect of
the disputed raised was the State Government and consequently as
there was no employer-employee relationship between Gujarat Refinery
and the workmen in dispute, the dispute was not maintainable against
Gujarat Refinery under the Industrial Disputes Act 1947, and
therefore the question of reference thereof did not arise.
The facts in brief deserves to be stated as under.
The petitioners who were employees of Chetna Lodging &
Boarding, a unit rendering service of lodging & boarding in the
premises of Gujarat Refinery raised industrial dispute with regard to
their service conditions and regularization. They preferred Special
Civil Application No. 2745 of 1985 with Special Civil Application No.
2746 and 2747 of 1985, wherein the Division Bench of this Court on
22/1/1986 passed an order leaving liberty to the petitioners to raise
an industrial dispute as under.
ýS (1) The petitioners should raise an industrial dispute and make
an application to the competent authority in the Central Government
for making reference to the Industrial Tribunal under section
10(1)(a) of the Industrial Disputes Act. Such a dispute to be raised
and necessary application to be made within two weeks from today.
(2) The Competent Authority in the Central Government after going
through the prescribed procedure including hearing to the parties,
shall decide for making reference to the Industrial Tribunal
concerned, if the conciliation efforts fail to produce satisfactory
result. The Competent Authority to decide this question within six
weeks from the submission of the benefit report by the contractor as
directed in (1) above. ýS
As per the say of the petitioner the concerned union in their behalf
did raise a dispute which came to be rejected by an order dated
24/8/1987. This order of rejection had not been communicated to the
workmen concerned and they came to know about this order only in the
year 2004 and therefore, approached the concerned competent
authority once again by preferring application dated 6/2/2004 which
came to be rejected by the said authority vide order dated 17/2/2004
which is impugned in the present petition.
This Court (Coram: H.K. Rathod, J) on 1-4-2008 issued notice which
was made returnable on 30/4/2008. In response to the notice learned
counsels for the respective parties appeared and contested the
matter.
Shri
Brahmbhatt, learned counsel for the petitioner(s) inter alia
submitted that the order impugned is not sustainable as the Division
Bench of this Court while disposing of the earlier set of petitions
vide its order dated 22/1/1986 granted unequivocal liberty to the
petitioners to approach the Central Government, i.e. the Appropriate
Government for referring their dispute to the Industrial Tribunal
under Section 10(1)(a) of the Industrial Disputes Act and in light
of the said liberty, the order impugned can not be said to be
sustainable as the ‘appropriate Government’ so far as the dispute
was concerned was the Central Government and not the State. The
earlier order dated 24/8/1987 where under the request for referring
the dispute was rejected, was untenable in eye of law and therefore,
the second order dated 17/2/2004 which is merely a repetition of the
earlier order dated 24/8/1987 is also required to be quashed and set
aside. Shri. Brahmbhatt further submitted that the contention taken
by the respondent no.2 for resisting this petition on account of
delay & laches also can not militate against the prayers made in
this petition, as the order impugned nowhere speaks about the delay
& laches and the rejection of the demand for raising dispute was
mainly on account of the authority being not competent authority as
envisaged. In other words the authority being not the appropriate
government and as there was no relationship between the Refinery and
the workmen and therefore, this was the only order which can not be
said to be sustainable in eye of law.
Mr.
Brahmbhatt has submitted that the dispute is genuine and since 1986
the day when they approached this Court by filing appropriate writ
petitions and prior thereto the workmen on whose behalf industrial
dispute was sought to be raised are rendered unemployed and looking
to their plight the dispute deserves to be referred for appropriate
adjudication. Shri Bhatt submitted that the observations made by
the authority with regard to no relationship of employee and
employer as recorded by the authority in the impugned order would
also come in their way in case if the workmen move State Government
being ‘appropriate authority’.
Shri
Mithani, learned counsel appearing for Respondent no.1 has submitted
that the petitioners have sought permission to join State as party
and in fact joined the State as party as it is seen from the order
dated 1-4-2008 passed by this Court (Coram: H.K. Rahtod, J). Looking
to the prayer and the averments in the petition, it appears that
even the workmen themselves have admitted that the Central
government is not the competent authority in the order impugned,
therefore can not be said to be in any way suffering from any
illegality.
Shri.
Manish Bhatt, learned counsel appearing for respondent no.2 has
submitted that the order impugned can not be said to be suffering
from any infirmity as such calling for any interference by this
Court under Article 226 & 227 of the Constitution of India. Shri
Bhatt submitted that the direction containing liberty reserved by
the Division Bench in its order dated 22/1/1986 can not be construed
to be a finding that the Central Government was the appropriate
authority as envisaged under the provisions of Industrial Disputes
Act. He, in the alternative, submitted that, assuming for the sake
of submitting that the Central Government was the appropriate
Government, then also, the order impugned needs no interference at
this stage only on account of gross delay and laches on the part of
the concerned workmen. Shri. Bhatt has extensively taken this Court
through the affidavit in reply where respondent has categorically
pleaded grave prejudice in case the reference is made at this
belated stage. He relies upon the decision of the Apex Court in case
of U.P. STATE ROAD TRANSPORT CORPN. v. BABU RAM, reported in (2006)
5 SCC 433, and the observations on page 436 in support of his
submission that such a belated reference if made would cause
tremendous prejudice to the parties.
This
Court need not go into the question with regard to ýSappropriate
governmentýý at this stage. The petition deserves to be disposed of
on the question of gross delay and laches on the part of the workmen
concerned. The question with regard to ‘appropriate government’ and
the observations made by the authority in the impugned order will
have to be actually granted in light of the direction issued by the
Division Bench of this Court in the order dated 22/1/1986 in the
earlier group of petitions. However, as it is stated herein above,
this Court is not inclined to examine the said question. Suffice it
to say here that the petition is to be disposed of as it is
suffering from gross delay and laches on the part of the workmen
concerned. It deserves to be noted that originally the group of
petitions was filed way back in the year 1986 and the Court also
passed an order on 22/1/1986. After that order it appears from the
record that there was reference to demand also raised and the demand
was rejected vide order dated 24/8/1987. Now, this order, as per the
say of the petitioner had never been communicated to them by their
respective unions and ultimately they had to move the concerned
‘appropriate government’ once again in the year 2004 reiterating the
order dated 24/8/1987. In short what is being challenged in this
petition is an order dated 24/8/1987, though that order in itself is
not sustainable in view of the earlier order, a question arise as to
whether at such a belated stage when the petitioners have not taken
any remedy available and permitted to pass the time till 2004, this
Court would be justified in interfering with it especially in view
of the observations of the Apex Court in case of U.P. State Road
Transport Corpn. (supra). The answer would be positively NO. The
delay and laches and the prayer go to squarely militate against
entertaining of the petition itself. The passage of time also goes
against the prayer made by the petitioner and the philosophy running
behind the Industrial Disputes Act would also not be in any way
permit such an interference at such a belated stage as now there can
not be said to be an industrial dispute existing. This Court is not
inclined to entertain the petition at this stage as the same
otherwise would amount to create tremendous prejudice to the
otherside. In view of this, only on account of gross delay and
laches this petition is dismissed. Notice discharged. No cost.
At this stage Shri Brahmbhatt for the petitioner submitted that the
observations made by this Court may not come in the way of the
workmen in availing the liberty, if any, before the State Government
for raising industrial dispute, and therefore makes a request for an
appropriate observation. Shri. Brahmbhatt’s request is misconceived
as this Court is dismissing the petition on account of gross delay
and laches in raising the dispute. The prayer made in this petition
go to show that said prayer can not be granted when the Court is
dismissing the petition on account of gross delay and laches in
raising the dispute itself. As the original order dated 24/8/1987
has remain unchallenged, it would not be proper for this Court to
make any other observation so as to enable the petitioner to have
the recourse. Accordingly the request is rejected.
[ S.R.
BRAHMBHATT, J ]
/vgn