SCA/9498/2008 1/8 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. SCA/9498/2008 2/8 JUDGMENT 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. SCA/9498/2008 3/8 JUDGMENT 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 SCA/9498/2008 4/8 JUDGMENT 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 “11. It is true that in considering the question of making a reference under Section 10(1), the Government is SCA/9498/2008 5/8 JUDGMENT entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute “exists 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. SCA/9498/2008 6/8 JUDGMENT 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 “10. It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are SCA/9498/2008 7/8 JUDGMENT 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 SCA/9498/2008 8/8 JUDGMENT 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