Abbott Healthcare Private Limited through Shailendra Singh Pawar Vs Dipankar Jha

W.P.(L) No.1299 of 2023

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No.1299 of 2023

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Abbott Healthcare Private Limited, a company registered under the Laws of India and having its office at 4, Corporate Part, Sion, Trombay Road, P.O. & P.S. Sion, District Mumbai, (Maharashtra) PIN-400071, through Shailendra Singh Pawar, aged about 50 years, Son of Shri O. S. Pawar, working as Senior Manager (HR), Abbott Healthcare Private Limited and resident of 24C Sapphire-1, Cosmos Jewels, Kavesar, P.O. & P.S. Kasarvadavali, District Thane, (Maharashtra), PIN-400615 … Petitioner

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Versus

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Dipankar Jha, Son of Shankar Jha, resident of Quarter no.498, Sector 1/B, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro, … (Jharkhand) PIN: 827001 Respondent

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For the Petitioner : Mr. Alok Kr. Sinha, Advocate Mr. Nipun Bakshi, Advocate Mr. Shubham Sinha, Advocate Mr. Mrinal Singh, Advocate For the Respondent : Mr. Uday Choudhary, Advocate ------ P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Writ Petition has been filed under Article 226 of the Constitution of India inter alia with a prayer for issuance of a Writ of Certiorari or any other appropriate writ/order/direction for quashing and/or setting aside the industrial award dated 10.09.2022, the copy of which has been kept at Annexure-8 of this Writ Petition passed by the learned Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017 whereby and where under the learned Presiding Officer, Labour Court, Bokaro has directed the petitioner-

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company to reinstate the applicant-workman (respondent herein) with continuity of service and 30% of total back wages only from the date of his dismissal till his reinstatement overlooking the fact that Section 2 A (3) of the Industrial Disputes Act, 1947 confers jurisdiction upon the industrial adjudicator to entertain only those cases relating to termination of service of an individual workman which has been raised within a period of three years from the date of such termination and not otherwise.

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The undisputed fact is that the petitioner-company dismissed the respondent from services of the company with effect from 25.02.2013 by its communication dated 20.02.2013, the copy of which has been kept at Annexure-1 of this Writ Petition. The undisputed fact remains that the respondent filed an application invoking the jurisdiction of learned Presiding Officer, Labour Court, Bokaro under Section 2 A (2) of the Industrial Disputes Act, 1947 as amended by the Industrial Dispute (Amendment) Act, 2010 on 12.04.2017. The petitioner who was the opposite party-employer before the Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017, took a specific plea in paragraph-2 of its written-statement filed before the Labour Court, Bokaro that the application is filed by the applicant who is the respondent of this Writ Petition, is not maintainable; the same having been filed beyond the period of three years from the date of dismissal of the applicant before the Presiding Officer, Labour Court, Bokaro. In the impugned award, the learned Presiding Officer, Labour Court, Bokaro also recorded these pleadings as well as the submission of the Writ Petitioner who was the opposite party before it in paragraph-3 of the impugned award but did not frame any issue in respect of the maintainability of the application being barred

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by limitation, filed under Section 2 A (2) of the Industrial Disputes Act, 1947 nor dealt with the said pleadings as well as the arguments of the writ petitioner that the application filed by the respondent of this Writ Petition is barred by Section 2 A (3) of the Industrial Disputes Act, 1947.

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Learned counsel for the petitioner relies upon the judgment of a Division Bench of this Court in the case of Jafir Khan vs. General Manager, Jamadoba Colliery, M/s Tata Steel Limited & Another reported in 2020 SCC OnLine Jhar 1773 paragraphs-21 and 22 of which reads as under:-

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“21. Sub section 3 of Section 2-A provides that the application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).

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22. In the case in hand, the petitioner was separated from service w.e.f. 31.03.2003 but the application was filed after lapse of 12 years and Section 2-A of the Act, 1947, which is for expeditious disposal of the dispute and under sub section 3, it has been provided to file “an application mandatorily within three years before the Labour Court or Tribunal from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in subsection (1)” but admittedly the application was filed after lapse of 12 years, in our considered view, in view of specific bar as provided under sub section 3 to Section 2-A, such application was not fit to be entertained by the Labour Court or Tribunal.”

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and submits that the Hon’ble Division Bench of this Court has held that

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the Industrial Adjudicator cannot entertain an application under Section 2 A (2) of the Industrial Disputes Act, 1947 beyond a period of three years from the date of discharge/dismissal/retrenchment or otherwise termination of the services of the workman concerned, as the case may be.

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In support of his contention, learned counsel for the petitioner also relies

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upon the judgment of the Hon’ble Patna High Court in the case of Uco Bank vs. Union of India passed in Civil Writ Jurisdiction Case No.2367 of 2016 dated 08.01.2018 paragraphs-14 and 15 of which reads as under:-

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“14. On perusal of sub-section (3) of Section 2-A, it would be manifest that an application under sub-section (2) of Section 2-A after expiry of three years from the date of dismissal is not permissible.

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15. Hence, in view of the statutory provision prescribed under subsection (3) of Section 2-A reference to the Industrial Tribunal, Patna itself was patently bad.”

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and submits that the Hon’ble Patna High Court is of the same view as that of the Hon’ble Division Bench of this Court in the case of Jafir Khan vs. General Manager, Jamadoba Colliery, M/s Tata Steel Limited & Another (supra).

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To buttress, his submissions, learned counsel for the petitioner also relies upon the judgment of Hon’ble High Court of Karnataka in the case of M/s. ITC Infotech India Ltd., Bangalore vs. Mr. Venkataramana Uppada reported in

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2016 SCC OnLine Kar 538 paragraphs-26 and 27 of which reads as under:-

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“26. In view of the fact that sub-Section (3) of Section 2A having been held as mandatory and the said provision clearly indicating that in case of dismissal, discharge, retrenchment or termination, an application referred to in sub-Section (2) of Section 2 A to be made before the expiry of three years, i.e., on or before 10.02.2012 and same having not been made, respondent — employee cannot be heard to contend that delay is to be condoned. At the cost of repetition, it is to be held that on the expiry of three years period from the date of discharge, dismissal etc., the right to invoke Section 2A would stand extinguished.

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27. In view of the aforestated discussion, this Court is of the considered view that Point Nos. (i) & (ii) has to be answered in the negative namely, Labour Court cannot entertain a claim petition filed under Section 2A(2) of the I.D. Act after three years from the date of discharge, dismissal, retrenchment or termination and Labour Court was not justified in condoning the delay of 730 days in filing the claim petition.”

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and submits that on the expiry of three years from the date of discharge/dismissal/retrenchment etc., the right to invoke Section 2 A (2) of the Industrial Disputes Act, 1947 stands extinguished unlike the reference under Section 10 (1) of the Industrial Disputes Act, 1947 for which, of course,

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no limitation has been prescribed. Hence, it is submitted that the impugned award being the industrial award dated 10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017, having been passed in violation of the settled principle of law and without jurisdiction being more than 3 years of the termination of the respondent-workman, the same be quashed and set aside.

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Learned counsel for the respondent, on the other hand, relies upon the judgment of Hon’ble Supreme Court of India in the case of Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301 in which in the facts of that case when a reference was made under Section 10 (1) (C) of the Industrial Disputes Act, 1947, the Hon’ble Supreme Court of India reiterated the principle of law settled in the case of Ajaib Singh vs. The Sirhind Co-operative Marketing Cum- Processing Service Society Limited & Another reported in (1999) 6 SCC 82 to the effect that no reference to the Labour Court can be generally questioned on the ground of delay alone.

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Learned counsel for the respondent next relies upon the judgment of Hon’ble Rajasthan High Court in the case of M/s. Glenmark Pharmaceuticals Limited vs. The Judge, Labour Court and Industrial Tribunal, Bhilwara & Another passed in D.B. Civil Special Appeal (W) No.801 of 2014 dated 27.08.2015 again in a case of reference made by the appropriate Government obviously under Section 10 (1) of the Industrial Disputes Act, 1947, when the award was passed by the learned Presiding Officer, Labour Court ex-parte and the management filed an application to set aside the ex-parte award but the labour court dismissed the application of the management to set aside the exparte award, as the same having not been filed within a period of thirty days

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from the date of the award. The High Court dismissed the application of the management and both the single judge as well as the Division Bench of the Hon’ble Rajasthan High Court dismissed the application and appeal respectively and the Hon’ble Supreme Court of India in S.L.P. (C) CC No.22895 of 2015 also dismissed the Special Leave Petition.

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Learned counsel for the respondent next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota vs. Mohan Lal passed in Civil Appeal No.6795 of 2013 (Arising out of SLP (C) No.11305 of 2006) dated 16.08.2013 wherein in the facts of that case the Hon’ble Supreme Court of India has held that though limitation Act, 1963 is not applicable to the reference made under I.D. Act but delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side and submits that on the ground of delay the relief cannot be denied to a workman, if he is otherwise entitled to the relief.

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Learned counsel for the respondent next relies upon the judgment of Hon’ble High Court of Judicature at Madras passed in the case of Management of Hyundai Motor India Ltd. vs. T. Sudhakar passed in W.P. No.739 of 2021 wherein in the facts of that case, keeping in view of the amendment made to Section 2 A in the State of Tamil Nadu, in the facts of that case where the industrial dispute raised under Section 2 A of the Industrial Disputes Act, 1947 before the labour court, was dismissed for default and the labour court condoned the delay in filing the petition for restoration of the industrial dispute, the Hon’ble High Court of Judicature at Madras held that in view of

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Rule 48 (1) of the Tamil Nadu Industrial Disputes Rule, the Hon’ble High Court of Judicature at Madras did not find any infirmity or illegality in the order passed by the labour court, learned counsel for the respondent submits that the Industrial Dispute Act being a welfare labour legislation, certainly the technical plea that the application under Section 2 A of the Industrial Disputes Act, 1947 was barred by limitation, cannot be entertained.

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Learned counsel for the respondent next relies upon the judgment of Hon’ble Patna High Court in the case of Sun Pharmaceutical Industries Limited vs. The State of Bihar & Another passed in Civil Writ Jurisdiction Case No.17797 of 2022 wherein the Hon’ble Patna High Court allowed the interlocutory application filed by the workman under Section 17 (B) of the Industrial Disputes Act, 1947.

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Learned counsel for the respondent next relies upon the judgment of Hon’ble Delhi High Court in the case of North Delhi Municipal Corporation vs. Bal Kishan & Another reported in 2021 SCC OnLine Del 5543 as well as in the case of Indra Perfumery Co. vs. Presiding Officer & Others reported in 109 (2004) DLT 927 in which the application under Section 17 (B) was allowed and submits that as the respondent has filed an Interlocutory Application for granting the relief under Section 17 (B) of the Industrial Disputes Act, 1947, hence, it is submitted that the petitioner be directed to pay the respondentworkman full wages last drawn by him including of maintenance allowance admissible to him.

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It is lastly submitted by the learned counsel for the respondent that there being no illegality in the impugned award being the industrial award dated 10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in

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I.D. Case No.01 of 2017, this Writ Petition, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the sole question to be answered in this Writ Petition is:-

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“Whether an industrial dispute under Section 2 A of the Industrial Disputes Act, 1947 as amended by Industrial Dispute (Amendment) Act, 2010 can be entertained by the Industrial Adjudicator beyond the period of expiry of three years from the date of discharge/dismissal/retrenchment or otherwise termination of the service of the workman concerned?”

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It is pertinent to refer to Section 2 A of the Industrial Disputes Act, 1947 {(as amended by Industrial Disputes (Amendment) Act, 2010} which reads as under:-

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2-A. Dismissal, etc., of an individual workman to

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be deemed to be an industrial dispute. — [(1)] Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

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(2) Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the

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expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).

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It is pertinent to mention here that at least the State of Andhra Pradesh, Chhatisgarh, Punjab, Rajasthan, Tamil Nadu and West Bengal have made some State amendment to 2 A of the Industrial Disputes Act, 1947 but in the State of Jharkhand, no State amendment has been made. So, there is absolutely no quarrel that the State amendments made by the aforesaid States is not applicable to the State of Jharkhand and in the State of Jharkhand, the Central Act being the 2 A of the Industrial Disputes Act, 1947 which has been quoted above in the foregoing paragraphs of this judgment, will be applicable.

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Now, as already mentioned above, the Hon’ble Supreme Court of India has in no uncertain manner has held that the provisions of Limitation Act, 1963 is not applicable to the proceedings under the Industrial Disputes Act, 1947. The Industrial Disputes Act since the very beginning, had a mechanism for resolving industrial disputes by the disputes being referred to the appropriate Labour Courts/Industrial Tribunal etc. in exercise of Section 10 of the Industrial Disputes Act, 1947.

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Sub Section 2 (2) and (3) of section 2 A of the Industrial Disputes Act, 1947 have been inserted by way of amendment in the Industrial Disputes Act, 1947 to provide direct access to the workman to the Labour Court or Industrial Tribunal in case of disputes arising out of Section 2 A of the Industrial Disputes Act, 1947. The amendment was made to enable the aggrieved workman to choose the alternative adjudications for resolution of his dispute faster but obviously, the time frame to avail such remedy under Section 2 A (2) of the Industrial Disputes Act, 1947 comes with the rider that the same has to be filed

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before the expiry of three years from the date of dismissal/discharge/retrenchment etc. The introduction of Section 2 A (2) and 2 A (3) of the Industrial Disputes Act, 1947; still leaves the remedy of referring the dispute to the Labour Court or the Industrial Tribunal by the appropriate Government open. There is no time frame prescribed under Section 10 (1) of the Industrial Disputes Act, 1947. In view of this fact, this Court is not inclined to accept the contention of the learned counsel for the respondent that the observations made by the Hon’ble Supreme Court of India in respect of the references made under Section 10 (1) of the Industrial Disputes Act, 1947 to the effect that no reference to the Labour Court can generally be questioned on the ground of delay alone certainly cannot confer a jurisdiction upon the Labor Court or the Industrial Tribunal to entertain an application under Section 2 A (2) of the Industrial Disputes Act, 1947 as amended by Act No.24 of 2010; after the expiry of the period of three years from the date of dismissal/discharge/retrenchment when there is a specific bar for the same in shape of Section 2 A (3) of the Industrial Disputes Act, 1947 and this view has already been held by the Division Bench of this Court as well as other High Courts as has been referred in the foregoing paragraphs of this judgment wherein the judgments relied upon by the learned counsel for the petitioner has been quoted.

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Under such circumstances, this Court has no hesitation in holding and answering the question framed in this case; that the Labour Court or the Industrial Tribunal has no power or jurisdiction to entertain an application under Section 2 A (2) of the Industrial Disputes Act, 1947 after expiry of three

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years from the date of discharge/dismissal/retrenchment etc. of the services of the workman concerned.

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Now, coming to the facts of the case, as already indicated above the termination was on 25.02.2013 and the application under Section 2 A of the respondent/applicant was filed on 12.04.2017 i.e., after the expiry of the period of three years. Hence, certainly, the Labour Court, Bokaro has committed a grave illegality by entertaining such application under Section 2 A (2) of the Industrial Disputes Act, 1947 after the expiry of three year from the date of dismissal/discharge/retrenchment etc. of the respondent-workman. Though the Labour Court, Bokaro was also aware about this defence of the writ petitioner who was the opposite party before it but it also committed a perversity by not framing any issue in that respect nor meeting the said contention of the writ petitioner.

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In view of the discussions made above, since the impugned award being the industrial award dated 10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017 suffers from perversity and gross illegality as also having been passed without jurisdiction, the same is liable to be quashed in exercise of the jurisdiction vested upon this Court under Article 226 of the Constitution of India.

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Accordingly, the impugned award being the industrial award dated 10.09.2022 passed by the learned Presiding Officer, Labour Court, Bokaro in I.D. Case No.01 of 2017 is quashed and set aside.

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In view of disposal of the instant Writ Petition, there is no scope for passing any order in Interlocutory Application No.8616 of 2023 which was filed under Section 17 (B) of the Industrial Disputes Act, 1947 as for exercising such

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power the sine qua non is that there must be a pendency of a proceeding but with passing of this judgment, this proceeding has come to an end. Accordingly, Interlocutory Application No.8616 of 2023 stands disposed of being infructuous.

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In the result, this Writ Petition stands allowed.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 01^st of February, 2024 AFR/ Animesh

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Abbott Healthcare Private Limited through Shailendra Singh Pawar v. Dipankar Jha

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Abbott Healthcare Private Limited through Shailendra Singh Pawar v. Dipankar Jha

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