KARNATAKA STATE ROAD v. MARUTHI

(PER: HON'BLE MS. JUSTICE JYOTI MULIMANI) Smt.H.R.Renuka., learned counsel for petitioner has appeared in person. Sri.K.B.Naveen Kumar., learned counsel for respondents 1(A & B) has appeared through video conferencing.

2. The short facts are these: The respondent was a Conductor in the establishment of the Corporation. He remained absent unauthorizedly from duty from 20.02.2003 without prior permission from the authority concerned. A report was submitted by the Depot Manager with regard to his unauthorized absence. He was issued with a Call letter calling upon him to report to duty. Articles of charge were issued alleging his unauthorized absence. The respondent neither reported to duty nor replied to the articles of charge. Hence, he was subjected to disciplinary proceedings. The inquiry officer conducted a detailed inquiry and submitted his findings holding that the charges are proved. The respondent - 3 - NC: 2024:KHC:28939 WP No. 56297 of 2017 was issued with a show cause notice along with the findings of the inquiry officer. The respondent did not submit his reply to the show cause notice. The disciplinary authority vide order dated:08.04.2004, dismissed the respondent from the services. As the matter stood thus, after a lapse of almost nine years, the respondent filed an appeal before the Appellate Authority as against the order of dismissal and also raised a dispute and the same came to be referred to the Labour Court, Hubballi in Reference No.27/2013 for adjudication. The appeal filed by the workman before the Appellate Authority came to be dismissed on the grounds of delay and laches. The Labour Court held that the domestic inquiry conducted by the Corporation was not fair and proper. The parties led evidence on the merits of the case. The Labour Court vide award dated:27.02.2017 set-aside the order of dismissal. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.

3. Learned counsel for the respective parties have urged several contentions. - 4 - NC: 2024:KHC:28939 WP No. 56297 of 2017 Smt.H.R.Renuka., learned counsel appearing on behalf of the Corporation in presenting her arguments strenuously urged that there is an inordinate delay of almost nine years in raising the dispute. She relied upon the decision of the Hon'ble Apex Court in PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in (2015) 15 SCC 1 to contend that the Hon'ble Apex Court has settled the law regarding delay and laches. By way of reply to this contention, learned counsel Sri.K.B.Naveen Kumar., justified the award of the Labour Court. He submits that the Writ Petition is devoid of merits and the same may be dismissed. Counsel placed reliance on the following decisions:

1. SHAHAJI VS. EXECUTIVE ENGINEER, P.W.D - 2005 III LLJ 522.

2. KARAN SINGH VS. M/S. EXECUTIVE ENGINEER HARYANA STATE MARKETING BOARD - 2007 (7) SC 629. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers with utmost care.

4. The following points would arise for consideration: - 5 - NC: 2024:KHC:28939 WP No. 56297 of 2017

1. Whether the Labor Court justified concluding that there is no delay and the dispute is not stale?

2. Whether the award of the Labor Court requires interference by this Court?

5. The facts are sufficiently stated and do not require reiteration. Suffice it to note that, the respondent came under a disciplinary inquiry proceedings and was visited with an order of punishment back in the year 2004 i.e., on 08.04.2004. Strangely, he raised the dispute after a lapse of almost nine years.

6. The issue revolves around the delay and laches. It is not in dispute that the delinquent came under a disciplinary inquiry on account of misconduct and was visited with an order of minor punishment back in the year 2004 i.e., on 08.04.2004. Strangely, he raised the dispute in the year 2013. The Corporation filed objections and sought for dismissal of the reference on the grounds of delay and laches. However, the Labor Court placed reliance on KULDEEP SINGH VS. G.M.INSTRUMENT DESIGN DEVELOPMENT & FACILITIES - 6 - NC: 2024:KHC:28939 WP No. 56297 of 2017 CENTRE & ANOTHER reported in 2011 LAB.I.C 645 (S.C) and KARAN SINGH VS. EXECUTIVE ENGINEER, HARYANA STATE MARKETING BOARD reported in 2008 - I-LLJ-289 and concludes that since the Government has made a reference for adjudication of the dispute and there is no prescribed time limit for raising a dispute, condoned the delay. The findings recorded by the Labor Court on the delay and laches is incorrect. The reason is apparent. The Labor Court ought to have considered whether sufficient reasons were accorded by the workman to condone the delay. Furthermore, the reasons accorded to condone the delay are contrary to the law laid down by the Apex Court in PRABHAKAR's case. It is pivotal to note that the Apex Court in PRABHAKAR V/S. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in (2015) 15 SCC page 1 has laid down the law about delay and laches. In paragraphs 42.1 to 42.6 and 44, the Apex Court has held as under: "42.1. 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 2-A of the Act. Reference is made - 7 - NC: 2024:KHC:28939 WP No. 56297 of 2017 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 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 follows would confine existence of an industrial dispute.

42.2. Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. 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 - 8 - NC: 2024:KHC:28939 WP No. 56297 of 2017 reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.

42.3. Since there is no period of limitation, it gives right to the workman to raise the dispute even 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 cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose 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.

42.4. 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 - 9 - NC: 2024:KHC:28939 WP No. 56297 of 2017 approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing 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 Management of his demand contained in the notice and thereafter he sleeps over the matter for a 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.

42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the 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 the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.

42.6. 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 - 10 - NC: 2024:KHC:28939 WP No. 56297 of 2017 refuse to refer. In the alternative, the Labour Court/ Industrial Court 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.

44. To summarize, although is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID 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 ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed in as much as unless there is a satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."

7. Reverting to the facts of the case, it is not in dispute that the order of punishment was passed on

08.04.2004. However, the respondent chose to challenge the order of punishment after a lapse of almost nine years. There is an inordinate delay in raising the dispute. The dispute had become stale as of the date of the adjudication. The Labor - 11 - NC: 2024:KHC:28939 WP No. 56297 of 2017 Court has over-looked this aspect of the matter and erroneously proceeded and condoned the delay. The Labor Court ought to have rejected the dispute on the grounds of delay and laches.

8. Counsel for the respondent placed reliance on the decisions referred to supra. Perused the same with utmost care. The decision of SHAHAJI VS. EXECUTIVE ENGINEER, P.W.D reported in 2005 III LLJ 522 is not applicable to the facts and circumstances of the present case. The reason is apparent. In SHAHAJI's case, the Management did not take the grounds of delay and laches. But in the present case, there is a specific contention regarding delay and laches. In KARAN SINGH's case, there is no delay. Hence, they do not apply to the facts and circumstances of the present case. On the merits of the case, the Labour Court has held that the charge is proved. When the charge is proved and the act of misconduct is upheld; what is required to be considered is victimization. In the present case, there is no victimization. Taking note of the material evidence on record, the disciplinary authority imposed the order of punishment i.e., dismissal from - 12 - NC: 2024:KHC:28939 WP No. 56297 of 2017 service. The Labor Court has overlooked this aspect of the matter. I may venture to say that the Labor Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the Labor Court is unsustainable in law. In any view of the matter, the award of the Labor Court cannot be sustained. Therefore, the award of the Labor Court is liable to be set aside. Accordingly, it is set aside.

9. The Writ of Certiorari is ordered. The award dated:27.02.2017 passed by the Labor Court, Hubballi in Reference No.27/2013 vide Annexure-B is quashed. The order of punishment dated:08.04.2004 is confirmed.

10. Resultantly, the Writ Petition is allowed. Because of confirmation of order of dismissal, the interim order granted if any stands discharged and the pending interlocutory applications if any are disposed of. Sd/- (JYOTI MULIMANI) JUDGE MRP List No.: 1 Sl No.: 11