Bombay High Court

Shri Prakash Anand Nerlekar vs M/S. S. J Iron And Steel Pvt. Ltd on 25 April, 2019

Author:
M. S. Karnik

Bench:
M. S. Karnik

This Order is modified/corrected by Speaking to Minutes Order dated 04/06/2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.11078 OF 2015

Sadashiv Yashwant Kumbhar ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2257 OF 2017

Vasant Rangrao Powar ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2258 OF 2017

Tukaram Sadashiv Madiwal ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2259 OF 2017

Mohan Dattatray Chougule ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2260 OF 2017

Sunil Rangrao Lohar ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent
ALONG WITH
WRIT PETITION NO.2261 OF 2017

Sarjerao Kundalik Patil ... Petitioner

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Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2264 OF 2017

Vishnu Yashwant Patil ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2265 OF 2017

Prakash Anand Nerlekar ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2266 OF 2017

Rajendra Shivaji Mali ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2267 OF 2017

Sanjay Shamrao Patil ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent
ALONG WITH
WRIT PETITION NO.2268 OF 2017
Jaypal Pirappa Goture ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2269 OF 2017

Bhanudas Shripati Kadam ... Petitioner

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Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2270 OF 2017

Dastgir Balaso Mulla ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2615 OF 2017
Bajirao Baburao Atigre ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.2616 OF 2017

Ramesh Ganapati Kapase ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.10588 OF 2017

Shivaji Ramchandra Shinde ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION NO.11076 OF 2015

Hambirrao Rangrao Raut ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent
ALONG WITH
WRIT PETITION NO.11079 OF 2015
Sanjay Dattu Patil ... Petitioner
Versus

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M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent

ALONG WITH
WRIT PETITION ST. NO.29547 OF 2015

Shrikant Bhivase ... Petitioner
Versus
M/s. S.J. Iron and Steel Pvt. Ltd. ... Respondent
.....
Shri R.M. Haridas I/b. Shri D.B. Shinde for petitioners in all
Petitions.
Shri M.S. Topkar for respondents in all Petitions.
.....
CORAM : M. S. KARNIK, J.

DATE : 25th APRIL, 2019.

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith by consent of

the parties and heard finally.

2. Since the issue involved is common, all these Petitions

can be disposed of by a common order.

3. By these Petitions filed under
Articles 226
and
of

the Constitution of India, the petitioners are challenging the

judgment and order passed by the Presiding Officer, Labour Court

No.1, Kolhapur, dated 20th March, 2015 in Reference (IDA) No.6

of 2009.

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4. For convenience, the facts in Writ Petition No. 11076

of 2015 are referred.

5. The petitioner was working as a Core Maker from

26/7/1983 with the respondents on monthly wages of Rs.3500/-.

It is petitioner's case that he was made to forcibly resign with

effect from 1/12/2002. Terminal dues were calculated in wrong

manner and petitioner was illegally terminated from the services.

According to petitioner, the said termination was effected on false

pretext that the Company is going to close down. The petitioner's

signature was obtained without explaining the terms, conditions

and all that was written on the resignation letter. The petitioner

also disputed the calculation of the amount of gratuity. According

to petitioner, 15% illegal deduction was made from the amount

that was paid to the petitioner as and by way of final settlement.

The petitioner therefore approached the Conciliation Officer under

Industrial Disputes Act, 1947
(hereinafter referred to as 'the said

Act of 1947' for short) sometime in the year 2007. The

Conciliation Officer referred the dispute to the Labour Court

under
Section 10(1)(c)
read with
Section 12 (5)
and
of the

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said Act of 1947 for adjudication of dispute. The Labour Court by

the impugned award dated 20th March, 2015 was pleased to reject

the Reference on the ground that there is a delay of five years in

approaching the authorities. The Reference is also rejected on

merits in as much as according to the Labour Court, there was a

settlement dated 12/7/2004 entered into by recognised Union

under which all the employees had received benefits towards full

and final settlement of their claims.

6. Learned Counsel for the petitioners firstly urged that

under
Section 10(1)
of the Act of 1947, an employee can

approach the authorities under the Act of 1947 any time. No

limitation is stipulated. He would submit that the resignations

were obtained forcibly in the year 2002. Thereafter the settlement

which is not binding on the petitioner was entered into by

recognised Union on 12/7/2004. According to him, the Labour

Court has wrongly considered the delay to be of five years. He

submitted that the Labour Court has adopted a hyper technical

approach while refusing to condone delay. Relying on the decision

of the Apex Court in the case of
Raghubir Singh vs. General

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Manager, Haryana Roadways, Hissar reported in (2014) 10

SCC 301, learned Counsel would submit that the delay need not

come in the way of the employees as in any case the ultimate

reliefs can be moulded suitably. He would further submit that the

settlement is not binding as the same is not in accordance with

law. Learned Counsel, relying upon the judgment and order of the

Industrial Court in respect of similar situate employees, would

contend that the Labour Court having allowed the claim of similar

situate employees in Reference (IDA) Nos.89 to 95, 97 to 122, 146

and 148 of 2003, even these applications deserve to be allowed.

7. In the course of challenge raised by Management to

the exparte award of Labour Court in respect of similar situated

employees in this Court, it is pointed out that the Management

entered in out of Court settlement with similar situate employees

and paid the employees 50% of the back-wages as awarded by the

Labour Court. He would therefore submit that even the petitioners

are entitled to similar reliefs.

8. Learned Counsel for respondents on the other hand

would submit that the claim of the petitioners is hit by delay and

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laches. He would invite my attention to the statement of claim

where the petitioner has come with the case that he resigned in

the year 2002. Furthermore the settlement of the year 2004 is not

a subject matter of the reference and therefore, according to him,

the Labour Court is justified in calculating the delay from the year

2002 onwards. He would submit that no doubt, limitation is not

prescribed for making a claim, but nonetheless the employee

concerned has to approach for redressal of his grievance within a

reasonable time. Learned Counsel would rely upon the decision of

the Apex Court in the case of
Prabhakar vs. Joint Director,

Secriculture Department
& anr. reported in 2016 (1) ALL MR

486 (S.C.), to contend the parameters to be kept in mind while

considering the aspect of delay.

9. Learned Counsel would also rely upon the decision of

the Apex Court in the case of State of Uttar Pradesh & ors. vs.

Arvind Kumar Srivastava & ors. reported in (2015) 1 SCC 347

in support of his submission that the petitioners have to be treated

as fence-sitters, as they approached the Labour Court only after

their counterparts succeeded in the efforts in a claim made by

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them before the Labour Court. According to learned Counsel, the

present is a fit case where laches and delays, and/or the

acquiescence, would be a valid ground to dismiss their claim. He

would moreover submit that the evidence on record would clearly

indicate that the petitioners have even received the provident fund

dues on the premise that the petitioners have tendered

resignations.

10. I have heard learned Counsel for the parties. I have

gone through the Memo of Petition, annexures to the Petition and

the impugned order.

11. It is the case of the petitioner that he tendered his

resignation in December 2002. Thereafter, recognised Union

entered into settlement in the year 2004 in terms of which the

terminal dues of all the employees were settled. Some of the

similar situate employees had approached the Labour Court in the

year 2003 itself by filing Reference IDA Nos.89 to 95, 97 to 122,

146 and 148 of 2003 for the similar reliefs as claimed by the

petitioners. By a common award dated 28/2/2006 the claim of

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those workmen was allowed and the similar situate workmen

were directed to be reinstated with continuity of service and with

full back-wages. This according to the Management was an

exparte award. The respondent - Company filed Miscellaneous

Application for setting aside the exparte award. The same came to

be rejected by the Labour Court on 27/2/2007. Thereafter, the

Management filed Writ Petition No. 1708 of 2007 in this Court

challenging the exparte order. In this Court a settlement was

arrived at between the Management and the workers in the said

Writ Petition No. 1708 of 2007 where the company agreed to pay

50% back-wages awarded by the Labour Court.

12. It is thus apparent that it is only after the similar

situate workers succeeded in the Reference before the Labour

Court and after the application for setting aside the exparte order

was rejected by the Labour Court, that the petitioners approached

the Conciliation Officer only in the year 2007. In this view of the

matter, this case would stand squarely covered by the decision of

the Apex Court in the case of State of Uttar Pradesh & ors.

(supra). In paragraph 22.2, their Lordships observed thus :

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22.2. However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as acquiescence.

Those persons who did not challenge the wrongful action in their
cases and acquiesced into the same and woke up after long delay only
because of the reason that their counterparts who had approached the
Court earlier in time succeeded in their efforts, then such employees
cannot claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would be treated
as fence-sitters and laches and delays, and/or the acquiescence, would
be a valid ground to dismiss their claim.

13. The petitioners in the statement of claim clearly made

out a case that they resigned with effect from 2002. According to

them, the resignation is forced. In my opinion, the fact that the

petitioners approached the Labour Court raising the demand only

after their counterparts succeeded in their efforts compels me to

come to a conclusion that the reference suffered laches and delay

which was valid ground to dismiss the petitioners' claim. It would

also be pertinent to mention that though no limitation is

prescribed for making a claim under the Act of 1947, this is a fit

case to dismiss the claim raised by the petitioners on the ground

of delay. The petitioners by not challenging the wrongful claim in

their cases and having acquiesced into the same, woke up after

long delay only because of the reason that their counterparts

succeeded in their efforts, then these petitioners cannot claim the

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benefit of the judgment rendered in the case of similarly situated

persons be extended to them.

14. A profitable reference can be made to the observations

of the Apex Court in the case of
Prabhakar
(supra) in paragraph

26 which reads thus :-

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."

15. It would also be material to refer to paragraph 38 of

the said decision
which reads thus :

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."

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16. In my opinion the view of the Labour Court in

rejecting the claim on the ground of delay, laches and

acquiescence cannot be said to be perverse or erroneous.

17. Though learned Counsel for the petitioners would

contend that the Labour Court was not justified in calculating the

delay from 2002 onwards as the settlement is of the year 2004, I

find from the statement of claim that the petitioners themselves

have made a claim for reinstatement on the basis of the

resignation which is submitted in December, 2002 which

according to the petitioners was obtained by force and

misrepresentation. In the statement of claim there is no challenge

to the settlement of the year 2004 nor is the Reference made on

the basis of the settlement of 2004.

18. In this view of the matter, I do not find any reason to

interfere with the impugned order.

19. Even before the matter was heard I had put it to the

learned Counsel for the respondents if some ex-gratia amount

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could be offered to each of the petitioner in view of the fact that

they had entered into a settlement with the petitioners'

counterparts. Learned Counsel for respondents, on instructions,

stated that the respondents are willing to pay an ex-gratia amount

of Rs.25,000/- to each of the petitioner. Learned Counsel for the

petitioners then rejected this offer and proceeded to argue on

merits.

20. After the order was dictated, learned Counsel for the

petitioners, on instructions, pleaded that they are willing to settle

the matter and that they would accept Rs.50,000/- each towards

full and final settlement of their claim. Learned Counsel for the

respondents in all fairness submits that despite dismissal of these

Petitions, he is still willing to stand by his earlier offer of

Rs.25,000/-. Learned Counsel for the respondents in his usual

fairness submitted that though he has no instructions to increase

the offer, he would leave it to this Court to determine the ex-

gratia amount payable to the petitioners which he assures the

respondents would abide by. In the interest of justice I am inclined

to accept the proposal made by the learned Counsel for the

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petitioners. As agreed by learned Counsel for petitioners, this ex-

gratia amount of Rs.50,000/- payable to each of the petitioner by

the respondents is towards full and final settlement of their claim.

The respondents to pay the ex-gratia amount of Rs.50,000/- to

each of the petitioners within a period of 8 weeks from today.

21. The Writ Petitions are dismissed.

22. Subject to above Rule is discharged with no order as to

costs.

( M. S. KARNIK, J. )

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