The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A. No. 635 of 2022 --------- Mahadeo Gorain, aged about 54 years, Son of Late Charku Gorain, resident of Village-Bhawanipur side, Singhjhori, P.O.-Jodhadih More, P.S.- … Petitioner/Appellant Chas, District-Bokaro. Versus 1. The Union of India through the Secretary, Ministry of Labour and Employment, Sharam Shakti Bhawan, Rafi Marg, P.O. & P.S.-Rafi Marg, New Delhi-110001. 2. The Regional Labour Commissioner (Central), Office at Shram Bhawan, New Colony, P.O. & P.S.-Dhanbad, Dist.-Dhanbad. 3. Bokaro Steel Plant, Bokaro Steel City Administrative Building, Bokaro City, P.O. & P.S.-Bokaro, Dist.-Bokaro .... Respondents/Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --------- --------- For the Appellant : Mr. Sanjay Prasad, Advocate For the Union of India : Mr. Anil Kumar, ASGI Mr. Shiv Kumar Sharma, Sr. CGC : Mr. Arpan Mishra, Advocate For the Resp. No.3 --------- 7th December 2023 Per, Anubha Rawat Choudhary, J. I.A. No.10509 of 2023 This application has been filed under section 5 of the Limitation Act for condonation of delay of 438 days in filing the appeal. 2.
Legal Reasoning
Counsel for the appellant has referred to paragraph no.3 of the interlocutory application to submit that the appellant was suffering from Leprosy and has been under treatment and therefore he had no knowledge about the order dated 13.01.2021 which was passed during the period of COVID-19 pandemic and approached the conducting counsel as soon as he came to know about the impugned order without any further delay. No counter affidavit has been filed to the application for condonation of delay. However, the learned counsel for the respondents has opposed the prayer for condonation of delay. 3. After hearing the counsel for the parties and being satisfied with the cause shown by the appellant seeking condonation of delay, 2 L.P.A. No. 635 of 2022 I.A. No.10509 of 2023 is allowed. LPA No.635 of 2022 4. This appeal has been filed against the judgment dated 13.01.2021 passed in WP(L) No.3062 of 2013 whereby the writ petition filed by the appellant has been dismissed. 5. The writ petition was filed with a prayer to quash the order dated 08.05.2012 passed by the Under Secretary, Ministry of Labour, Government of India whereby reference of the industrial dispute regarding the dismissal of the appellant from service has been declined to be referred for adjudication in exercise of power under section 12(5) of the Industrial Disputes Act, 1947. 6. The writ Court has held as under: “11. The plea taken by learned counsel appearing for the petitioner does not come to his rescue as nothing has been brought on record to show that as to how the unexplained stale claim could have been ignored. 12. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, no interference is warranted in the instant writ application and the same is hereby dismissed.” 7. The learned counsel for the appellant while challenging the impugned order has submitted that the appellant was dismissed by ex parte order and the industrial dispute was raised and referred for adjudication vide order dated 26.06.2006 passed by the concerned authority of the state government, namely, Deputy Labour Commissioner, Bokaro Steel City, Bokaro. However, the appropriate authority to refer the dispute was changed and the Central Government was declared to be the appropriate government for making such reference. Consequently, a fresh application was filed before the competent authority, namely, Regional Labour Commissioner (Central), Ministry of Labour and Employment through the office of the Deputy Chief Labour Commissioner, Dhanbad on 15.07.2011 and by the order impugned before the learned writ Court the reference was declined on the ground of delay of 9 years in raising the dispute stating that the dispute was raised belatedly without any justification for delay. The learned counsel has submitted that the aforesaid aspects of the matter have not been properly considered by the learned writ Court and consequently the order impugned calls for interference by this Court. 8. The learned counsel for the respondents has opposed the 3 L.P.A. No. 635 of 2022 prayer of the appellant. However, they have submitted that the relevant records regarding the passing of the order dated 08.05.2012 have been produced before this Court under the order dated 18.09.2023. 9. After hearing the learned counsels appearing for the parties and considering the documents on the record, this Court finds that it is not in dispute that the appellant had joined SAIL/BSL on 06.02.2000 and was dismissed vide ex parte order dated 27.06.2002 on the ground of continuous absence from duty from 21.08.2001. The chargesheet was issued on 05.04.2002 and the appellant neither responded to the notices nor participated in the inquiry and was dismissed from service vide office order dated 27.06.2002. It is the specific case of the appellant that before the order of dismissal being ex parte was passed he was not issued any notice or chargesheet nor received the order of dismissal. 10. It is not in dispute that the appellant had raised the industrial dispute before the Labour Superintendent, Government of Jharkhand who vide order dated 26.06.2006 referred the dispute for adjudication. It further appears that despite the reference no proceeding could be undertaken since the competent authority to refer the dispute in connection with the appellant was Central Government. Under such circumstances, the appellant filed a fresh application for reference of the industrial dispute before the Regional Labour Commissioner (Central), Dhanbad on 15.07.2011 which has been declined by the order impugned in the writ petition. 11. As per the records of the learned writ Court, no counter- affidavit was filed in the writ proceedings. However, from the perusal of the records as filed by the respondent-Union of India in this appeal, the report of the Conciliation Officer shows that he had recommended for reference of the industrial dispute by observing as follows:- “In view of the above respective contentions of both, the management and union, from the facts submitted on record, it is ascertained that Sri Mahadev Gorai was dismissed by the management of Bokaro Steel Plant-SAIL on the charges of habitual chronic absenteeism. Though the management has claimed before dismissing Sri Mahadev Gorai that proper chargesheet was issued and also an enquiry was constituted but as Sri Gorai never responded to the notice of the Enquiry Committee and also did not respond to the chargesheet so he was dismissed for his misconduct and as he was given full opportunity by issuing notice so principle of natural justice were followed. But here, the union has raised the doubt that the workman never received any notice of chargesheet in question and he received only order of dismissal. No documents were provided wherein it could be shown or could 4 L.P.A. No. 635 of 2022 be proved that the workman concerned, Sri Mahadev Gorai received the chargesheet or notices issued by the Enquiry Committee and this is the reason why the union has alleged that the order of dismissal was Ex-parte decision and principle of natural justice was not followed. In view of the above facts and circumstances as the question of illegal termination or dismissal from service is involved and management could not provide any documents by which, it could be proved that workman received chargesheet and notices of enquiry etc. and also in view of the above facts that this industrial dispute of Sri Mahadev Gorai had also been espoused by another union earlier before the Dy. Labour Commissioner, Government of Jharkhand, B.S. City when the State, Government was the Appropriate Government under the I.D. Act and dispute was referred by the State Conciliation Officer to the Government, wherein no decision is available in respect of reference or non-reference and as in the meantime due to amendment in the I.D. Act for Appropriate Government as the Central Government, then this dispute raised, so I am of the view that this industrial dispute of alleged dismissal from service raised by the union need scrutiny under the adjudication, hence, this dispute should be referred to adjudication on the following terms:- “Whether the action of the management of Bokaro Steel Plant, SAIL in dismissing Sri Mahadev Gorai, Ex-Khalasi, Staff No.764705 without giving him sufficient opportunity to defend his case during the enquiry as alleged by the union is justified? If not, to what relief the workman is entitled to ?" 12. This Court finds that in spite of specific comments of the Conciliation Officer that the dispute should be referred for adjudication, the order impugned in the writ petition dated 08.05.2012 was passed by observing that prima facie the Ministry does not consider the dispute for adjudication on the following reasons: “The dispute has been raised belatedly after more than 9 years without any justification for the delay.” 13. The fact that the workman had raised the dispute before the authority of the State government and the management had submitted its reply has been duly recorded in the conciliation proceedings. 14. This Court finds that the sequence of events demonstrates that the appellant has raised the dispute earlier before the State authorities who had referred the dispute for adjudication by the order dated 26.06.2006 and when nothing happened and upon realizing that the competent authority had changed the appellant again raised the industrial dispute on 15.07.2011 before the competent authority and thus the order impugned in the writ petition stating that the dispute has been raised belatedly after more than 9 years without any justification for delay is perverse and cannot be sustained in the eyes of law. This Court finds that the learned writ Court has not taken into consideration the fact that the dispute was earlier raised and referred by the State authority vide order dated 26.06.2006. The said 5 L.P.A. No. 635 of 2022 order dated 26.06.2006 has been filed in the writ records through the supplementary affidavit dated 07.07.2017 but has not been considered by
Decision
the learned writ Court while dismissing the writ petition. Considering the sequence of events, the dispute raised by the appellant cannot be termed as a stale one, particularly when the order of dismissal is an ex parte order and the dispute was earlier referred for adjudication vide order dated 26.06.2006 but could not be taken up on technical reasons of jurisdiction. This Court finds that the delay, if any, is well explained and this aspect of the matter was duly considered by the Conciliation Officer who recommended for referring the dispute for adjudication but the order impugned in the writ petition was passed stating that the dispute was raised belatedly. Accordingly, the order impugned in the writ petition as well as the order of the learned writ Court dismissing the writ petition call for interference by this court. 15. Therefore, the impugned order dated 13.01.2021 is set aside. The order impugned in the writ petition dated 08.05.2012 is also set aside. Respondent no.1 is directed to refer the dispute regarding dismissal of the appellant by passing an appropriate order within a period of one month from the date of communication of this order. 16. L.P.A. No.635 of 2022 is allowed. (Shree Chandrashekhar, J.) R.K./NAFR (Anubha Rawat Choudhary, J.)