Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2015
(ARISING OUT OF SLP (C) NO...CC 16129 OF 2015)
PRABHAKAR .....PETITIONER
VERSUS
JOINT DIRECTOR
SERICULTURE DEPARTMENT & ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Delay condoned.
This special leave petition arises from the judgment dated June 06,
2011 passed by the High Court of Karnataka, Circuit Bench at Dharwad,
whereby writ appeal of the respondents (hereinafter referred to as the
'Management') herein was allowed resulting in setting aside the award of
the Labour Court directing reinstatement of the petitioner herein in
service without back wages and other benefits, even when the said order
was upheld by the Single Judge of the said High Court in the writ petition
Signature Not Verified
filed by the Management challenging the award.
Digitally signed by
ASHWANI KUMAR
Date: 2015.09.18
13:19:44 IST
Reason:
2
2) We may state at the outset that the main factor with which the High
Court has been influenced is that the petitioner, whose services were
terminated on April 01, 1985, raised the industrial dispute only in the
year 1999, i.e. after a period of more than fourteen years. On the facts
of this case, the High Court has held that there was no 'live' dispute and
even when no period of limitation is provided for raising the disputes
under the Industrial Disputes Act, 1947 (hereinafter referred to as the
'Act') and provisions of the Limitation Act, 1963 are not applicable, there
could not have been a reference at such a belated stage, inasmuch as,
after a lapse of such abnormal time, the dispute ceases to exist and,
therefore, the appropriate Government had no jurisdiction or power to
make a reference of a non-existent dispute. The petitioner has
questioned the appropriateness of this view taken by the High Court.
3) Primary submission of the learned counsel appearing for the petitioner is
that once it is accepted that the law of limitation does not apply, the
Government could make the reference even if the dispute was raised
belatedly and in such circumstances power of the Labour Court is to
mould the relief. In support of this contention, learned counsel referred
to the judgment of this Court in Raghubir Singh v. General Manager,
1
Haryana Roadways, Hissar . In order to appreciate the aforesaid
1 (2014) 10 SCC 301
3
contention, we scan through the basic facts of the present case.
4) The petitioner was appointed as a Clerk in the Sericulture Department,
Government of Karnataka, Belgaum on April 01, 1984. His services
were terminated on April 01, 1985. During the period April 01, 1985 till
1999, the petitioner did not approach any judicial/quasi-judicial authority
challenging the said termination. In fact, not even a notice or legal notice
was served upon the Management questioning the validity of the said
termination. However, some time in the year 1999, the petitioner
approached the appropriate Government alleging that his services were
terminated illegally and in violation of the provisions of Section 25F of
the Act. Insofar as delay is concerned, in the claim made by the
petitioner, only explanation given was that he had approached the
Management on several occasions with request to reinstate him in
service and pay back wages and other consequential benefits. He also
alleged that though the Management initially assured that they would
reinstate him, but dragged on the matter on one pretext or the other and
when they ultimately told him that they would not reinstate him into
service, he had no alternative but to raise the industrial dispute. The
conciliation proceedings have started, which ended in failure.
Thereafter, the appropriate Government referred the matter regarding
validity of termination of the petitioner for adjudication.
4
5) The Management had taken a specific plea in the conciliation
proceedings as well as before the Labour Court that such a reference
was not competent and the petitioner was not entitled to any relief when
he had raised the dispute after fourteen years of his termination. On
merits it was pleaded that the Management had not terminated the
services and, in fact, it is the petitioner who left the services. Various
issues were framed by the Labour Court, which included a specific issue
as to whether any relief could be given when the dispute was raised after
fourteen years of alleged termination. After the evidence was led, the
Labour Court passed the award holding that the petitioner had worked
for more than 240 days and his services were terminated by the
Management without complying with the provisions of Section 25F of the
Act. The termination was, thus, held to be invalid. The contention of the
Management that the petitioner had left the service of his own was
negatived by the Labour Court with the reason that no person would give
up the work easily without any cause and as the petitioner had not got
any alternate employment anywhere, the question of leaving his job by
himself did not arise. Insofar as the issue of raising the dispute belatedly
is concerned, the Labour Court held that even if there was a delay of
fourteen years, only relief was required to be moulded because of that
reason. Thus, the Labour Court ordered reinstatement, but denied back
5
wages or other benefits. For this purpose, the Labour Court referred to
the judgment of this Court in Sapan Kumar Pandit v. U.P. State
2
Electricity Board & Ors.
6) As pointed out above, the writ petition preferred by the Management
against this award was dismissed by the Single Judge of the High Court.
Against the order of dismissal passed by the learned Single Judge, the
Management preferred writ appeal, which has been allowed by the
Division Bench vide impugned judgment dated June 06, 2011. This
special leave petition is preferred challenging the said judgment and
there is also a delay of 1438 days in filing the same.
7) From the facts narrated above, it becomes clear that for a period of
fourteen years no grievance was made by the petitioner qua his alleged
termination. Though it was averred that the petitioner had approached
the Management time and again and was given assurance that he would
be taken back in service, there is nothing on record to substantiate this.
No notice was served upon the Management. There is no assurance
given in writing by the Management at any point of time. Such
assertions are clearly self-serving. Pertinently, even the Labour Court
has not accepted the aforesaid explanation anywhere and has gone by
the fact that the dispute was raised after a delay of fourteen years.
2 (2001) 6 SCC 222
6
Therefore, keeping in mind the aforesaid facts, we would decide the
issue which has arisen, namely, whether reference of such a belated
claim was appropriate.
8) It may be stated that the question is of utmost importance as it is seen
that many times, as in the instant case, the workers raise dispute after
number of years of the cause of action. Whether the dispute can still be
treated as surviving? Or whether it can be said that dispute does not
exist when the concerned workmen after his say termination kept quiet
for number of years and thus acquiesced into the action?
9) Before we proceed to deal with the aforesaid questions, it would be
proper to discuss the power of 'appropriate Government' under Section
10 of the Act in referring or refusing to refer the dispute for adjudication.
It is a peculiar position provided under the Act that an aggrieved
workman cannot approach the Labour Court or Industrial Tribunal
directly for adjudication of 'industrial dispute'. Except those cases falling
under Section 2A of the Act, he has to seek reference of dispute to
Labour Court/Industrial Tribunal under Section 10 of the Act.
'Appropriate Government', as defined under Section 2(a) of the Act, is
empowered to refer the dispute. Section 10(1) stipulates that
'appropriate Government' may, at any time, by order in writing, refer the
7
dispute to a Board, Labour Court or Industrial Tribunal where 'it is of the
opinion that any industrial dispute exists or is apprehended' . Interpreting
this Section, way back in the year 1953, this Court in the case of State
3
of Madras v. C.P. Sarathy & Anr. stated the following propositions:
“(i) The Government should satisfy itself, on the facts and
circumstances brought to its notice, in its subjective
opinion that an 'industrial dispute' exists or is
'apprehended';
(ii) the factual existence of a dispute or its apprehension
and the expediency of making reference are matters
entirely for the Government to decide;
(iii) the order making a reference is an administrative act
and it is not a judicial or a quasi-judicial act; and
(iv) the order of reference passed by the Government
cannot be examined by the High Court in its jurisdiction
under Art. 226 of the Constitution to see if the Government
had material before it to support the conclusion that the
dispute existed or was apprehended.”
These propositions were based on unamended Act which did not contain
the words 'where the appropriate Government is of the opinion'.
10) In Western India Match Company Ltd. v. The Western India Match
4 5
Co. Workers Union & Ors. , this Court took support of C.P. Sarathy's
case to hold that function of the appropriate Government to make
reference under Section 10(1) is an administrative function. This view
(1953) 4 SCR 334
3
4 (1970) 1 SCC 225
5 Note 3 above
8
that the appropriate Government is performing an administrative act and
not judicial or quasi-judicial act while making reference is found in
various judicial pronouncements made by this Court even thereafter.
11) The satisfaction of the existence of an industrial dispute or the
satisfaction that an industrial dispute is apprehended is 'a condition
precedent to the order of reference' . An order of reference cannot be
made mechanically without forming an opinion. For formation of the
necessary opinion, the 'appropriate Government' must also be satisfied
that a person whose dispute is being referred for adjudication is a
'workman'. If the dispute is not between an employer and his workman, it
is not an 'industrial dispute' and the Government can justifiably refuse to
refer the dispute. From the material placed before it, the Government
reaches an administrative decision whether there exists an existing or
apprehended industrial dispute. In either event, it can exercise the power
under this Section.
12) The adequacy or the sufficiency of the material on which the opinion was
formed is beyond the pale of judicial scrutiny. If the action of the
Government in making the reference is impugned by a party, it would be
open to such a party to show that what was referred was not an
industrial dispute and that the Tribunal had no jurisdiction to make the
9
award. But if the dispute was an industrial dispute, its factual existence
and the expediency of making a reference in the circumstances of a
particular case are matters entirely for the Government to decide upon
and it will not be competent for the Court to hold the reference bad and
quash the proceedings for want of jurisdiction merely because there
was, in its opinion, no material before the Government on which it could
have come to an affirmative conclusion on those matters.
13) When the 'appropriate Government' makes a reference of an industrial
dispute for adjudication, it does not decide any question of fact or law.
The only condition, which the exercise of that power should satisfy, is
that there should be the existence or apprehension of an industrial
dispute. When once the Government is satisfied about this question, it
acquires jurisdiction to refer the dispute for adjudication. However, the
condition precedent to the formation of such opinion, that there should
be an existing or apprehended 'industrial dispute', is imperative and the
recitals of the existence or apprehension of the industrial dispute cannot
preclude the Court to exercise its power of judicial review and to
determine whether, in fact, there was any material before the
'appropriate Government' and if there was; whether the Government
applied its mind in coming to the conclusion that an industrial dispute
was in existence or was apprehended and it was expedient to make the
10
reference. Therefore, an order of reference is open to judicial review if it
is shown that the appropriate Government had no material before it or it
has not applied its mind to the material before it or has not taken into
consideration certain vital facts which it ought to have taken into
consideration.
14) Likewise, when the appropriate Government refuses to make reference,
it is also amenable to judicial review if it is shown that the appropriate
Government did not take into consideration the relevant material which
could show existence or apprehension of industrial dispute or if it is
shown that the reasons for refusing to make reference are irrelevant or
not germane to the formation of opinion.
15) It has been held in catena of judgments that while performing this
administrative function, the Government would not decide the dispute
between the parties which may be termed as judicial function and such
judicial function is to be discharged by the Labour Court/Industrial
Tribunal only. In Ram Avtar Sharma & Ors. v. State of Haryana &
6
Anr. , this Court held that if the Government, while refusing to make
reference delves into the merits of the dispute, it is not permissible under
law and the appropriate course to make reference and such dispute are
6 (1985) 3 SCC 189
11
to be settled/decided by the Labour Court/Industrial Tribunal as an
adjudicatory authority. Following observations of the Court are worth
noting:
“Therefore the view that while exercising power under
Section 10(1) the functions performed by the appropriate
Government is ans administrative function and not a
judicial or quasi-judicial function is beyond the pale of
controversy.
Now if the Government performs an administrative act
while either making or refusing to make a reference under
Section 10(1), it cannot delve into the merits of the dispute
and take upon itself the determination of lis. That would
certainly be in excess of the power conferred by Section
10. Section 10 requires the appropriate Government to be
satisfied that the industrial dispute exists or is
apprehended. This may permit the appropriate
Government to determine prima facie whether an industrial
dispute exists or claim is frivolous or bogus or put forth
extraneous and relevant reasons not for justice of
industrial peace and harmony. Every administrative
determination must be based on ground relevant and
germane to the exercise of power. If the administrative
determination is based on the relevant, extraneous or
grounds not germane to the exercise of power, it is liable
to be questioned in exercise of the power of judicial
review."
16) From the aforesaid discussion, it clearly follows that even when making
a reference by the appropriate Government is an administrative act,
before making such a reference it has to form an opinion as to whether
any industrial dispute exists or is apprehended. While forming this
opinion, the appropriate Government is supposed to take all relevant
facts into consideration touching upon this aspect. If the power is not
12
exercised properly, it is amenable to judicial review. Thus, where an
industrial dispute exists or his apprehended, but the appropriate
Government refuses to make reference, such a refusal can be
challenged in the court of law. Conversely, which is equally true, if the
reference is made even when no dispute exists or is apprehended, such
a reference will also be subject to judicial review.
17) We may refer to the judgment in the case of The Secretary, Indian Tea
7
Association v. Ajit Kumar Barat & Ors. In that case, the "appropriate
Government" refused to make a reference on the ground that the
concerned employee who had raised the dispute was not 'workman'
within the meaning of Section 2(s) of the Act. While doing so, the
Government considered the salary and allowances drawn by the
employee as well as the nature of work performed by him, including his
power to sanction expenses incurred by his Office. The concerned
employee (respondent in the said case) filed a writ petition against the
order of the appropriate Government refusing to make reference and the
High Court in that writ petition directed the Government to make the
reference as to whether he was a workman. Appeal filed by the appellant
therein was also dismissed and in these circumstances the appellant
preferred Special Leave Petition and that is how the matter came up for
7 (2000) 3 SCC 93
13
consideration before this Court. Granting leave and ultimately allowing
the appeal of the appellant, this Court set aside the judgment of the High
Court and upheld the order of the Government refusing to make
8
reference. Relying upon its earlier judgment in the case of C.P. Sarathy ,
9
Prem Kakar v. State of Haryana & Anr. , and Sultan Singh v. State of
10
Haryana & Anr. , the Court observed that the order under Section 10 of
the Act was an administrative order and the Government was entitled to
go into the question whether industrial dispute exists or is apprehended
and it will be only subjective satisfaction on the basis of material on
records and being an administrative order no lis is involved. The position
in law was summarised as under:
(i) the appropriate Government would not be justified in making a reference
under Section 10 of the Act without satisfying itself on the facts and
circumstances brought to its notice that an industrial dispute exists or
apprehended and if such a reference is made it is desirable, wherever
possible, for the Government to indicate the nature of dispute in the
order of reference;
(ii) the order of the appropriate Government making a reference under
Section 10 of the Act is an administrative order and not a judicial or
quasi-judicial one and the Court, therefore, cannot canvass the order of
Note 3 above.
8
9 (1976) 3 SCC 433
10 (1996) 2 SCC 66
14
the reference closely to see if there was any material before the
Government to support its conclusion, as if it was a judicial or
quasi-judicial order;
(iii) an order made by the appropriate Government under Section 10 of the
Act being an administrative order no lis is involved, as such an order is
made on the subjective satisfaction of the Government;
(iv) if it appears from the reasons given that the appropriate Government took
into account any consideration irrelevant or foreign material, the Court
may in a given case consider the case for a writ of mandamus and;
(v) it would, however, be open to a party to show that what was referred by
the Government was not an industrial dispute within the meaning of the
Act.
18) At this stage, it may be pointed out that admittedly the law of limitation
does not apply to industrial disputes. Limitation Act does not apply to the
proceedings under the Industrial Disputes Act and under the Industrial
Disputes Act no period of limitation is prescribed. This is now well
settled by series of judgments of this Court.
19)
On the reading of these judgments, which are discussed hereinafter, it
can be discerned that in some decisions where the reference was made
after a lapse of considerable period, the Court did not set aside the
15
reference but moulded the relief by either granting reinstatement but
denying back wages, fully or partially, or else granted compensation,
denying reinstatement. On the other hand, in some of the decisions, the
Court held that even when there was no time prescribed to exercise
power under Section 10 of the Act, such a power could not be exercised
at any point of time to revive matters which had since been settled or
had to become stale. We would like to refer to these judgments at this
juncture.
20) As early as in 1959, this Court in the case of Shalimar Works Ltd. v.
11
Their Workmen pointed out that there is no limitation prescribed in
making a reference of disputes to Industrial Tribunal under Section 10(1)
of the Act. At the same time, the Court also remarked that the dispute
should be referred as soon as possible after they have arisen and after
conciliation proceedings have failed. In that case, reference was made
after four year of dispute having arisen. In these circumstances, this
Court held that relief of reinstatement should not be given to the
discharged workmen in such a belated and vague reference.
12
21)
Again, in Western India Match Company Ltd. , though upholding the
reference of dispute made nearly six years after the previous refusal to
11 (1960) 1 SCR 150
12 Note 4 above
16
make the reference, the Court observed that in exercising its discretion
to make reference, the Government will take into consideration the time
which had lapsed between its earlier decision and the date when it
decides to reconsider it in the interest of justice and industrial peace.
Following observations from this judgment need to be noticed for the
purposes of the present case:
“8. From the words used in Section 4(k) of the Act there
can be no doubt that the Legislature has left the question
of making or refusing to make a reference for adjudication
to the discretion of the Government. But the discretion is
neither unfettered nor arbitrary for the section clearly
provides that there must exist an industrial dispute as
defined by the Act or such a dispute must be apprehended
when the Government decides to refer it for adjudication.
No reference thus can be made unless at the time when
the Government decides to make it an industrial dispute
between the employer and his employees either exists or
is apprehended. Therefore, the expression “at any time”,
though seemingly without any limits, is governed by the
context in which it appears. Ordinarily, the question of
making a reference would arise after conciliation
proceedings have been gone through and the conciliation
officer has made a failure report. But the Government
need not wait until such a procedure has been completed.
In an urgent case, it can “at any time”, i.e., even when
such proceedings have not begun or are still pending,
decide to refer the dispute for adjudication. The
expression “at any time” thus takes in such cases as
where the Government decides to make a reference
without waiting for conciliation proceedings to begin or to
be completed. As already stated, the expression “at any
time” in the context in which it is used postulates that a
reference can only be made if an industrial dispute exists
or is apprehended. No reference is contemplated by the
section when the dispute is not an industrial dispute, or
even if it is so, it no longer exists or is not apprehended,
for instance, where it is already adjudicated or in respect of
which there is an agreement or a settlement between the
parties or where the industry in question is no longer in
17
existence.
xx xx xx
13. It is true that where a Government reconsiders its
previous decision and decides to make the reference, such
a decision might cause inconvenience to the employer
because the employer in the meantime might have acted
on the belief that there would be no proceedings by way of
adjudication of the dispute between him and his workmen.
Such a consideration would, we should think, be taken into
account by the Government whenever, in exercise of its
discretion, it decides to reopen its previous decision as
also the time which has lapsed between its earlier decision
and the date when it decides to reconsider it. These are
matters which the Government would have to take into
account while deciding whether it should reopen its former
decision in the interest of justice and industrial peace but
have nothing to do with its jurisdiction under Section 4(k)
of the Act. Whether the intervening period may be short or
long would necessarily depend upon the facts and
circumstances of each case, and therefore, in construing
the expression “at any time” in Section 4(k) it would be
impossible to lay down any limits to it.”
22) Again in Vazir Sultan Tobacco Company v. State of Andhra
13
Pradesh , the Andhra Pradesh High Court held that reference made
nearly six years after the dispute amounted to inordinate, unreasonable
and unjustifiable.
14
23) In Nedungadi Bank Ltd. v. K.P. Madhavankutty & Ors. , the Court
cautioned that power of reference should be exercised reasonably and in
a rational manner and not in a mechanical fashion. It was specifically
observed that power to make reference cannot be exercised to revive
13 (1964) 1 LLJ 622
14 (2000) 2 SCC 455
18
settled matters or to refer stale disputes in spite of absence of statutory
limitation period. The Court not only reiterated that the courts had power
of judicial review, though to limited extent, but also made following
pertinent observations on delay:
“6. Law does not prescribe any time-limit for the
appropriate Government to exercise its powers under
Section 10 of the Act. It is not that this power can be
exercised at any point of time and to revive matters which
had since been settled. Power is to be exercised
reasonably and in a rational manner. There appears to us
to be no rational basis on which the Central Government
has exercised powers in this case after a lapse of about
seven years of the order dismissing the respondent from
service. At the time reference was made no industrial
dispute existed or could be even said to have been
apprehended. A dispute which is stale could not be the
subject-matter of reference under Section 10 of the Act. As
to when a dispute can be said to be stale would depend on
the facts and circumstances of each case. When the
matter has become final, it appears to us to be rather
incongruous that the reference be made under Section 10
of the Act in the circumstances like the present one. In fact
it could be said that there was no dispute pending at the
time when the reference In question was made. The only
ground advanced by the respondent was that two other
employees who were dismissed from service were
reinstated. Under what circumstances they were dismissed
and subsequently reinstated is nowhere mentioned.
Demand raised by the respondent for raising an industrial
dispute was ex facie bad and incompetent.
7. In the present appeal it is not the case of the
respondent that the disciplinary proceedings, which
resulted in his dismissal, were in any way illegal or there
was even any irregularity. He availed his remedy of appeal
under the rules governing his conditions of service. It could
not be said that in the circumstances an industrial dispute
did arise or was even apprehended after a lapse of about
seven years of the dismissal of the respondent. Whenever
a workman raises some dispute it does not become an
industrial dispute and the appropriate Government cannot
19
in a mechanical fashion make the reference of the alleged
dispute terming it as an industrial dispute. The Central
Government lacked power to make reference both on the
ground of delay in invoking the power under Section 10 of
the Act and there being no industrial dispute existing or
even apprehended. The purpose of reference is to keep
industrial peace in an establishment. The present
reference is destructive to the industrial peace and defeats
the very object and purpose of the Act. The Bank was
justified in thus moving the High Court seeking an order to
quash the reference in question.
8. It was submitted by the respondent that once a
reference has been made under Section 10 of the Act a
Labour Court has to decide the same and the High Court
in writ jurisdiction cannot interfere in the proceedings of the
Labour Court. That is not a correct proposition to state. An
administrative order which does not take into consideration
statutory requirements or travels outside that is certainly
subject to judicial review, limited though it might be. The
High Court can exercise its powers under Article 226 of the
Constitution to consider the question of the very
jurisdiction of the Labour Court. In National Engg.
Industries Ltd. v. State of Rajasthan {(2000) 1 SCC 371}
this Court observed:
“ 24. It will be thus seen that High Court has
jurisdiction to entertain a writ petition when there is an
allegation that there is no industrial dispute and none
apprehended which could be the subject matter of
reference for adjudication to the Industrial Tribunal
under Section 10 of the Act. Here it is a question of
jurisdiction of the Industrial Tribunal, which could be
examined by the High Court in Its writ jurisdiction. It is
the existence of the Industrial Tribunal ( sic dispute)
which would clothe the appropriate Government with
power to make the reference and the Industrial
Tribunal to adjudicate it. If there is no industrial
dispute in existence or apprehended the appropriate
Government lacks power to make any reference.”
15
24) Even in Sapan Kumar Pandit , the Court emphasized that limitation
15 Note 2 above
20
period for making the reference is co-extensive with the existence of
dispute, meaning thereby that the dispute should be alive on the day
when the decision was taken to make a reference or to refuse to make
reference. In the facts of that case, the Court found that dispute
remained alive and, therefore, reference was legally made. What is
significant is that the Court in that judgment interpreted the words 'at any
time' occurring in Section 10 of the Act and clarified that though these
words, prima facie , indicate that there is no time limit for making the
reference, but such a meaning cannot be assigned to these words and
the real test is the existence of a dispute on the date of reference for
adjudication. We would like to reproduce paras 8 and 9 elaborating this
principle:
“8. The above section is almost in tune with Section 10 of
the Industrial Disputes Act, 1947, and the difference
between these two provisions does not relate to the points
at issue in this case. Though no time limit is fixed for
making the reference for a dispute for adjudication, could
any State Government revive a dispute which had
submerged in stupor by long lapse of time and rekindled
by making a reference of it to adjudication? The words "at
any time" as used in the section are prima facie indicator
to a period without boundary. But such an interpretation
making the power unending would be pedantic. There is
inherent evidence in this sub-section itself to indicate that
the time has some circumscription. The words "where the
Government is of opinion that any industrial dispute exists
or is apprehended" have to be read in conjunction with the
words "at any time". They are, in a way, complimentary to
each other. The Government's power to refer an industrial
dispute for adjudication has thus one limitation of time and
that is, it can be done only so long as the dispute exists. In
other words, the period envisaged by the enduring
21
expression "at any time" terminates with the eclipse of the
industrial dispute. It, therefore, means that if the dispute
existed on the day when the reference was made by the
Government, it is idle ( sic – ideal) to ascertain the number
of years which elapsed since the commencement of the
dispute to determine whether the delay would have
extinguished the power of the Government to make the
reference.
9. Hence the real test is, was the industrial dispute in
existence on the date of reference for adjudication? If the
answer is in the negative then the Government's power to
make a reference would have extinguished. On the other
hand, if the answer is in positive terms the Government
could have exercised the power whatever be the range of
the period which lapsed since the inception of the dispute.
That apart, a decision of the Government in this regard
cannot be listed ( sic ) on the possibility of what another
party would think, whether any dispute existed or not. The
section indicates that if in the opinion of the Government
the dispute existed then the Government could make the
reference. The only authority which can form such an
opinion is the Government. If the Government decides to
make the reference, there is a presumption that in the
opinion of the Government, there existed such a dispute.”
16
25) In Raghubir Singh v. General Manager, Haryana Roadways, Hissar ,
this Court scanned through most of the available case law on the subject
and emphasized that the words 'at any time' occurring in Section 10 of
the Act would imply that law of limitation did not apply. On facts, the
Court held that the State Government had rightly exercised its power
and referred the dispute to Labour Court within reasonable time
considering circumstances in which the appellant therein was placed. In
fact, the Court accepted the explanation for delay given by the workman
16 (2014) 10 SCC 301
22
in raising the dispute. In that case, it was found that there was a criminal
case pending against the workman and further the Management had
assured him that he would be reinstated on his acquittal. It was also
noticed that even despite delay, there was no loss or unavailability of
evidence due to the said delay.
26) The aforesaid case law depicts the following:
(a) Law of limitation does not apply to the proceedings under the Industrial
Disputes Act, 1947.
(b) The words 'at any time' used in Section 10 would support that there is no
period of limitation in making an order of reference.
(c) 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.
(d) 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.
27) If one examines the judgments in the aforesaid perspective, it would be
easy to reconcile all the judgments. At the same time, in some cases the
Court did not hold the reference to be bad in law and the delay on the
23
part of the workman in raising the dispute became the cause for
moulding the relief only. On the other hand, in some other decisions,
this Court specifically held that if the matter raised is belated or stale that
would be a relevant consideration on which the reference should be
refused. Which parameters are to be kept in mind while taking one or
the other approach needs to be discussed with some elaboration, which
would include discussion on certain aspects that would be kept in mind
by the courts for taking a particular view. We, thus, intend to embark on
the said discussion keeping in mind the central aspect which should be
the forefront, namely, whether the dispute existed at the time when the
appropriate Government had to decide whether to make a reference or
not or the Labour Court/ Industrial Tribunal to decide the same issue
coming before it.
28) In this process, let us first examine as to what would constitute 'industrial
dispute' because of the simple reason that the appropriate Government
has power to refer what is known as an 'industrial dispute' and likewise
the Labour Court/Industrial Tribunal has jurisdiction to decide if there is
an industrial dispute. We are not going into the entire gamut of what
constitutes 'industrial dispute' within the meaning of Section 2(k) of the
Act. Our focus is only on the aspect that what can be referred should be
the dispute which is existing and in praesenti when the reference is
24
sought. To put it otherwise, if it no longer remains an industrial dispute
or industrial dispute 'does not exist' at that time, there would not be any
question on making reference or adjudicating the matter as it is not an
industrial dispute.
29) Section 2(k) of the IDA defines 'industrial dispute' and it reads as under:
“'industrial dispute' means any dispute or difference
between employers and employers, or between employers
and workmen, or between workmen and workmen, which
is connected with the employment or non-employment or
the terms of employment or with the conditions of labour,
of any persons;”
30) As per Section 2A dispute relating to discharge, dismissal, retrenchment
or termination of an individual are also deemed as industrial dispute and,
therefore, an individual is given right to raise these disputes.
31)
The term 'industrial dispute' connotes a real and substantial difference
having some element of persistency, and likely, if not adjusted, to
endanger the industrial peace of the community. The expression 'dispute
or difference' as used in the definition, therefore, means a controversy
fairly definite and of real substance, connected with the employment or
non-employment or with the terms of employment or the conditions of
labour of any person, and is one in which the contesting parties are
directly interested in maintaining the respective contentions.
25
32) To understand the meaning of the word 'dispute', it would be appropriate
to start with the grammatical or dictionary meaning of the term:
'Dispute': "to argue about, to contend for, to oppose by
argument' to call in question - to argue or debate (with
about or over), - a contest with words; an argument; a
debate; a quarrel;
33) Blacks law dictionary, 5th Edition, page 424 defines 'dispute' as under:
“ A conflict or controversy; a conflict of claims or rights; an
assertion of a right, claim or demand on one side, met by
contrary claims or allegations on the other. The subject of
litigation; the matter for which a suit is brought and upon
which issue is joined, and in relation to which jurors are
called and witnesses examined.”
34) Thus, a dispute or difference arises when demand is made by one side
(i.e. workmen) and rejected by the other side (i.e. the employer) and vice
versa . Hence an 'industrial dispute' cannot be said to exist until and
unless the demand is made by the workmen and it has been rejected by
the employer. How such demand should be raised and at what stage
may also be relevant but we are not concerned with this aspect in the
instant case. Therefore, what would happen if no demand is made at all
at the time when the cause of action arises? In other words, like in the
instant case, what would be the consequence if after the termination of
the services of petitioner on April 01, 1985, the petitioner does not
dispute his termination as wrongful and does not make any demand for
reinstatement for number of years? Can it still be said that there is a
26
dispute? Or can it be said that workmen can make such demand after
lapse of several years and on making such demand dispute would come
into existence at that time. It can always be pleaded by the employer in
such a case that after the termination of the services when the workmen
did not raise any protest and did not demand his reinstatement, the
employer presumed that the workmen has accepted his termination and,
therefore, he did not raise any dispute about his termination. It can be
said that workmen, in such a case, acquiesced into the act of the
employer in terminating his services and, therefore, accepted his
termination. He cannot after a lapse of several years make a demand
and then convert it into a 'dispute' what had otherwise become a buried
issue.
35) Let us examine the matter from another aspect, viz. laches and delays
and acquiescence.
36) It is now a well recognised principle of jurisprudence that a right not
exercised for a long time is non-existent. Even when there is no
limitation period prescribed by any statute relating to certain
proceedings, in such cases Courts have coined the doctrine of laches
and delays as well as doctrine of acquiescence and non-suited the
litigants who approached the Court belatedly without any justifiable
explanation for bringing the action after unreasonable delay. Doctrine of
27
laches is in fact an application of maxim of equity "delay defeats
equities".
37) This principle is applied in those cases where discretionary orders of the
Court are claimed, such as specific performance, permanent or
temporary injunction, appointment of receiver etc. These principles are
also applied in the writ petitions filed under Articles 32 and 226 of
Constitution of India. In such cases, Courts can still refuse relief where
the delay on the petitioner's part has prejudiced the respondent even
though the petitioner might have come to Court within the period
prescribed by the Limitation Act.
38) Likewise, if a party having a right stands by and sees another acting in a
manner inconsistent with that right and makes no objection while the act
is in progress he cannot afterwards complain. This principle is based on
the doctrine of acquiescence implying that in such a case party who did
not make any objection acquiesced into the alleged wrongful act of the
other party and, therefore, has no right to complain against that alleged
wrong.
39)
Thus, in those cases where period of limitation is prescribed within which
the action is to be brought before the Court, if the action is not brought
within that prescribed period the aggrieved party looses remedy and
28
cannot enforce his legal right after the period of limitation is over.
Likewise, in other cases even where no limitation is prescribed, but for a
long period the aggrieved party does not approach the machinery
provided under the law for redressal of his grievance, it can be
presumed that relief can be denied on the ground of unexplained delay
and laches and/or on the presumption that such person has waived his
right or acquiesced into the act of other. As mentioned above, these
principles as part of equity are based on principles relatable to sound
public policy that if a person does not exercise his right for a long time
then such a right is non-existent.
40) On the basis of aforesaid discussion, we summarise the legal position as
under:
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 is
29
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. 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 still exist. Since there is no period of
limitation, it gives right to the workman to raise the dispute even
30
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. 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
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
31
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. 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. In contrast, in those cases
where there was no agitation by the workman against his termination
and the dispute is raised belatedly and 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
32
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.
41) We may hasten to clarify that in those cases where the Court finds that
dispute still existed, though raised belatedly, it is always permissible for
the Court to take the aspect of delay into consideration and mould the
relief. In such cases, it is still open for the Court to either grant
reinstatement without back wages or lesser back wages or grant
compensation instead of reinstatement. We are of the opinion that the
law on this issue has to be applied in the aforesaid perspective in such
matters.
42) To summarise, although there is no limitation prescribed under the Act
for making a reference under Section 10(1) of the Act, yet it is for the
'appropriate Government' to consider whether it is expedient or not to
make the reference. The words 'at any time' used in Section 10(1) do not
admit of any limitation in making an order of reference and laws of
limitation are not applicable to proceedings under the Act. However, the
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 the obvious risk to
industrial peace from the entertainment of claims after long lapse of time,
it is necessary also to take into account the unsettling effect which it is
33
likely to have on the employers' financial arrangement and to avoid
dislocation of an industry.
43) On the application of the aforesaid principle to the facts of the present
case, we are of the view that High Court correctly decided the issue
holding that the reference at such a belated stage i.e. after fourteen
years of termination without any justifiable explanation for delay, the
appropriate Government had not jurisdiction or power to make reference
of a non-existing dispute.
44) This special leave petition is, therefore, dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ROHINTON FALI NARIMAN)
NEW DELHI;
SEPTEMBER 07, 2015.
34
ITEM NO.20 COURT NO.14 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C)......CC No(s).
16129/2015
(Arising out of impugned final judgment and order dated 06/06/2011
in WA No. 6145/2009 passed by the High Court Of Karnataka Circuit
Bench At Dharwad)
SRI. PRABHAKAR Petitioner(s)
VERSUS
JOINT DIRECTOR SERICULTURE DEPARTMENT AND ANR. Respondent(s)
(with appln. (s) for c/delay in filing slp)
Date : 07/09/2015 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. Sharanagouda Patil, Adv.
Ms. Supreeta Patil, Adv.
For M/s S-legal Associates
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
The special leave petition is dismissed in terms of the signed
reportable judgment.
(Ashwani Thakur) (Renu Diwan)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)