The High Court dismissed a writ petition challenging a departmental dismissal order and the Ministry of Labour's refusal to refer an industrial dispute. The Court held the delay was excessive and the facts involved impersonation, negating the relief sought.
The Petition fails and is dismissed. Rule is discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1939 OF 2011
Shri Jyotiram Tukaram Gore @ Ramchandra Kundalik Anekar … Petitioner Vs. Food Corporation of India and others ... Respondents
Mr. N. M. Ganguli for the Petitioner. Mr. R. V. Govilkar for Respondent No.1. Mr. Riyaz Chagla for Respondent No.2.
CORAM : S. A. BOBDE & R. G. KETKAR, JJ.
Reserved on: 24th September, 2012 Pronounced on: 9th October, 2012
ORDER: (Per R. G. Ketkar, J.)
Heard Mr. Ganguli, learned Counsel for the petitioner, Mr. Govilkar, learned Counsel for respondent No.1 and Mr. Chagla for respondent No.2 at length.
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of Labour considered the failure of conciliation report dated 09.12.2010 and did not consider the dispute between the Management of Food Corporation of India, Mumbai (for short 'F.C.I.') and the petitioner herein fit for adjudication on the ground that the dispute of alleged illegal non-payment of terminal dues to the petitioner has been raised belatedly after nine years and nine months without justification for such delay. The petitioner has also challenged the order dated 25.07.1995 passed by the F.C.I. dismissing the petitioner from the pool of the list of F.C.I. workers from the date of his absence, that is, from 21.03.1995 without any benefits due to grave misconduct and misbehaviour. The relevant and material facts that are necessary for the disposal of the Petition, briefly stated, are as under:
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No.1. The said arrangement was made out of sheer helplessness and to earn a living by honest work. Though the petitioner had given his real name, that is, Jyotiram Gore, the appointment letter was issued in the name of Ramchandra Kundalik Anekar. The petitioner worked in the office of respondent No.1 till the year 1995. On 04.04.1995, the petitioner was issued a charge-sheet on the ground that the petitioner has impersonated by pretending to be said Ramchandra and thereby committed breach of Clause Nos.XVIII and XXIII of the Certified Standing Order 15 (for short 'CSO 15'). The petitioner gave reply on 28.06.1995. After considering the explanation to the show cause notice, the District Manager (DKS/LAB) of respondent No.1, by order dated 25.07.1995, dismissed the petitioner from the pool of F.C.I. workers from the date of his absence i.e. from 21.03.1995 without any benefits due to grave misconduct and misbehaviour falling under Clauses XVIII and XXIII of the CSO 15.
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correspondence was exchanged between the petitioner and respondent No.1. The petitioner's case was taken up by Food Corporation of India Retired Employees Association (for short 'Union') by letter dated 16.08.2009. The conciliation proceedings were held in respect of the demand raised by the petitioner and a failure report dated 09.12.2010 was sent by the Conciliation Officer. By the impugned decision dated 20.04.2011, the Ministry of Labour informed the petitioner that the dispute raised by the petitioner, after nine years and nine months without any justification for such delay, was not fit for adjudication. The petitioner has challenged the order of dismissal dated 25.07.1995 and the decision dated 20.04.2011 of the Ministry of Labour in the present Petition.
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deserve to be quashed and set aside and respondent No.1 be directed to release his legal dues.
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petitioner i.e. Jyotiram Tukaram Gore. It is equally not in dispute that the petitioner joined the services of respondent No.1 in June 1976 and worked till 1995. On 04.04.1995, a charge-sheet was issued to the petitioner for committing misconduct covered by Clauses XVIII and XXIII of CSO 15. Clauses XVIII and XXIII of CSO 15 read as under:
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of the petitioner by letter dated 16.08.2009 again nearly after six years from 25.08.2003. The conciliation proceedings were held in respect of the demand raised by the petitioner and the failure report was submitted by the Conciliation Officer under the Industrial Disputes Act, 1947 (for short 'Act') and Assistant Labour Commissioner (Central) Mumbai to the Ministry of Labour on 09.12.2010. By the impugned decision dated 20.04.2011, the Ministry of Labour refused to refer the dispute for adjudication.
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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 services 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.
13. In S. M. Nilajkar and others Vs. Telecom District Manager , (2003) I LLJ 359 , the position was reiterated as follows:
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. v. Their Workmen (supra) ( AIR 1959 SC 1217 ), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even reemployment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their Workmen (supra) (AIR 1959 SC 1217), In Nedungadi Bank Ltd. v. K.P. Madhavankutty and others (supra) AIR 2000 SC 839 , a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others v. Union of India and others (supra) ( 1993 AIR SCW 2214) , it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a
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delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees Under P&T Department v. Union of India (supra) (AIR 1987 SC 2342), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal cum-Labour Court. We do not think that the appellants deserve to be non suited on the ground of delay."
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conciliation proceedings have failed. In Shalimar Works Ltd.'s case (supra), a delay of four years in raising the dispute after even reemployment of most of the old workmen was held to be fatal. In Nedungadi Bank Ltd.'s case (supra), a delay of seven years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta's case (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. As noted earlier, the petitioner was dismissed from the services on 25.07.1995. He raised demand for the first time on 25.08.2003, which was nearly after eighteen years from the date of dismissal. Even thereafter, the Union raised the dispute on behalf of the petitioner by letter dated 16.08.2009 that is nearly after six years from 25.08.2003. In the facts and circumstances of the present case, we are, therefore, of the opinion that delay in the case has been so culpable as to dis-entitle the petitioner to any relief.
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issued appointment letter in favour of the said Ramchandra and the petitioner was not issued appointment letter by respondent No.1 Even in the present Petition, the petitioner has styled himself as Jyotiram Tukaram Gore alias Ramchandra Kundalik Anekar. In view thereof, in the facts and circumstances of the present case, we do not consider this to be a fit case for exercising extra-ordinary powers under Article 226 of the Constitution of India.
(R. G. KETKAR, J.)
(S. A. BOBDE, J.)
Minal Parab
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2 issues framed by the court
Whether the High Court can exercise writ jurisdiction under Article 226 to quash a dismissal order accepted by the petitioner eighteen years prior.
Whether a delay of eighteen years in raising a dispute and six years for industrial reference is culpable enough to disentitle the petitioner to relief.
Colour shows how this judgement treated each authority
Karan Singh Vs. Executive Engineer, Haryana State Marketing BoardReferred¶39
(2008) I LLJ 289
National Engineering Industries Limited Vs. State of Rajasthan and othersReferred¶39
(2000) I LLJ 247
Nedungadi Bank Ltd. Vs. K. P. Madhavankutty and othersDistinguished¶40
(2000) I LLJ 561
S. M. Nilajkar and others Vs. Telecom District ManagerDistinguished¶45
(2003) I LLJ 359
M/s. Shalimar Works Ltd. v. Their WorkmenDistinguished¶46
AIR 1959 SC 1217 · Who else cites this
Nedungadi Bank Ltd. v. K.P. Madhavankutty and othersDistinguished¶46
AIR 2000 SC 839 · Who else cites this
Haryana Land Reclamation and Development Corporation Limited Vs. Nirmal KumarReferred¶50
(2008) 2 SCC 366 · Who else cites this
3 provisions across 3 enactments
Shri Jyotiram Tukaram Gore
Food Corporation of India
Ministry of Labour
S. A. Bobde
R. G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
