Jharkhand High Court
Employers In Relation To The Management … vs Their Workman on 26 May, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026: JHHC: 15410
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.2436 of 2009
Employers in relation to the Management of Gopinath Colliery of
Mugma Area under Eastern Coalfields Limited, through its General
Manager, Ajay Kumar Singh, having its office at and residing at -
Mugma, Post Office - Nirsa, Police Station - Nirsa, District -
Dhanbad ... ... Petitioner
Versus
1. Their Workman, Janta Shramik Sangh, through it's Vice President,
Mugma Area Committee, at Fatka, Shyampur Colliery, Post Office
- Nirsa, District Dhanbad
2. Sri Subodh Chandra Gorain (substituted v.o.d. 01.04.2016)
(a) Jyotsana Gorain, W/o late Subodh Chandra Gorain, R/o
Nirsakanta P.O. & P.S. - Nirsa, Dhanbad.
... ... Respondents
---
CORAM :HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Petitioner : Mr. Rajesh Lala, Advocate
For the Respondents : Mr. P.K. Mukhopadhyaya, Advocate
---
CAV on 12.05.2026 Pronounced on 26.05.2026
1. This writ petition has been filed for quashing the award dated
28.01.2009 passed in Reference No.32 of 2002 (Annexure – 1) by
learned Presiding Officer of the Central Government Industrial
Tribunal [No.1] at Dhanbad whereby it has been held that the action of
the management in dismissing the concerned workman is not fair and
justified and hence he is entitled to be reinstated with full back wages
and other consequential benefits and has further directed the
management of Gopinath Colliery of Mugma Area under Eastern
Coalfields Limited [ECL] to implement the Award within 30 days
from the date of publication of the Award.
Submission of learned counsel for the petitioner
2. Learned counsel for the petitioner submits that order of
dismissal is 24.06.1982 which was challenged by the concerned
employee before the Hon’ble Calcutta High Court after 15 years in
W.P. No. 22533 of 1997 and the writ petition was dismissed on
20.02.1998, against which appeal filed before the Hon’ble Calcutta
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High Court was also dismissed vide order dated 24.02.1999 as the
appeal was also barred by limitation of 254 days was also rejected.
3. He has referred to the averments made in the I.A. No.1722 of
2009 paragraph 16 and also placed the order in the writ petition passed
by Hon’ble Calcutta High Court and submits that the case was
dismissed on account of delay and laches and as such there was no
scope for raising any industrial dispute arising out of the same order of
dismissal. He submits that this aspect of the matter was suppressed
before the learned Tribunal and the Tribunal proceeded on merits.
4. The order of reference is dated 19.09.2001 which is after the
dismissal of the writ petition before the Hon’ble Calcutta High Court
and also after dismissal of the appeal arising out of the writ petition.
Reference was made after 19 years from the date of dismissal.
5. The learned counsel has also submitted that the reference was
under clause (d) of sub section 1 of Section 2(A) of the Industrial
Disputes Act wherein a period of limitation of 3 years has been
provided for the individual workman who raises the industrial dispute.
He has submitted that this aspect of the matter has not been considered
by the learned Labour Court. He has referred to Section 2(A) (3) of
Industrial Disputes Act, 1947.
6. He has also submitted that the workman has already expired
and therefore there is no question of any reinstatement, what remain is
only the back wages.
7. The learned counsel has referred to definition of Industrial
dispute under Section 2(k) and has submitted that since the concerned
workman never raised any dispute with the management and therefore
the reference itself was bad in law.
8. The learned counsel has relied upon the judgment passed by the
Hon’ble Supreme Court reported in AIR 1968 SC 529 (Sindhu
Resettlement Corporation Ltd. versus Industrial Tribunal of Gujarat
and Others) and referred to paragraph 4 of the said judgment to
submit that if no dispute is at all raised with the management, then any
request sent by the concerned Union/employee would only be a
demand made by them and not an industrial dispute between them and
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their employer. A mere demand to a government, without a dispute
being raised by the workmen with their employer, cannot be an
industrial dispute. He submits that on the said count, the Hon’ble
Supreme Court has held that reference made by the Government was
not competent.
9. The learned counsel has also referred to the judgment passed by
the Hon’ble Supreme Court reported in (2015) 15 SCC 1 (Prabhakar
versus Joint Director, Sericulture Department and Another) and has
submitted that the term ‘at any time’ used in Section 10 has been
interpreted and it has been held that industrial dispute could not have
been referred for adjudication by Labour Court/Tribunal as the
reference was made after 14 years of termination without any
justifiable explanation for delay and the appropriate government had
no jurisdiction or power to make reference of non-existing dispute. He
submits that the said pronouncement was with respect to Section 10 of
the Industrial Disputes Act where the government had refused to refer
the dispute for adjudication. However, in the present case, the
reference is under Section 2(A) of Industrial Disputes Act and
therefore it will be governed by the limitation as provided under
Section 2(A) i.e. 3 years.
10. During the course of hearing, it transpired that the domestic
enquiry was held to be unfair by the learned Tribunal vide order dated
31.08.2006.
Submission on behalf of the Respondents
11. During the course of hearing, learned counsel for the
respondents does not dispute that the respondent-workmen had
approached Hon’ble Calcutta High Court challenging his order of
dismissal and the writ petition was dismissed on account of delay and
laches in raising the dispute and further the appeal against the writ
order was also dismissed being barred by limitation.
12. However, he submits that the fact that workman had moved
Calcutta High Court was within the knowledge of the management as
the management was party before Hon’ble Calcutta High Court and
therefore, it was for the management to raise such objection before the
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learned Tribunal. The management having not raised such objection
cannot raise such a ground for the first time in the writ proceeding. He
submits that at the stage of the writ petition only the perversity in the
award is required to be seen.
13. Learned counsel submits that since no such ground was raised
by the management before the learned Tribunal, under such
circumstances, such ground cannot be raised by the learned counsel
for the writ petitioner before this Court.
14. He further submits that the industrial dispute was raised through
reference by the government and therefore, Section 2 A (iii) does not
come into play. Section 2A(iii) comes into play only when the
workman directly moved to labour court in terms of Section 10(2) of
the Industrial Dispute Act. He submits that the law is well settled that
reference can be made ‘at any time’ and therefore, the learned
Tribunal has rightly rejected the plea of belated reference.
15. Learned counsel further submits that the enquiry was held to be
unfair vide order dated 31.08.2006 and the management was given
opportunity to lead evidence, but the management having not led any
evidence, the learned Tribunal had no option but to reinstate the
workman with full back wages. He submits that the learned Tribunal
has also referred to the judgment passed by the Hon’ble Supreme
Court in the case reported in I.F.L.R. 1999 (81) page 188 [Neeta
Kaplish vs. Presiding Officer Labour Court] wherein it has been held
by the Hon’ble Supreme Court that in the event the enquiry is held not
fair and proper and if the management fails to prove charge, the
workman is entitled to reinstatement with full back wages. Learned
counsel submits that in aforesaid circumstances, it was irrelevant as to
whether the concerned workman was gainfully employed or not
during the period he was out of employment.
16. He further submits that a petition under Section 17B of the
Industrial Dispute Act was allowed by this Court, and therefore, there
can be no dispute that the concerned workman was not gainfully
employed during the period involved in this case.
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17. Learned counsel further submits that without prejudice to the
aforesaid submission, at least the concerned workman should be
entitled for back wages from the date he raised the industrial dispute
in the year 1999 till his age of superannuation in the year 2015.
Learned counsel submits that there is no question of any re-
instatement on account of the fact that the concerned workman has
already expired and he had also attained the age of superannuation.
18. The learned counsel for the respondents during the course of
argument has placed the written statement filed by the concerned
workman before the learned Tribunal and has fairly submitted that
there is no such statement in the written statement filed by the
workman that the workman remained unemployed from the date of his
dismissal. However, he has submitted that the petition under Section
17B has been allowed by this Court wherein it has been mentioned
that he was not gainfully employed anywhere, and therefore, that
should be sufficient and it should be taken into consideration that the
respondent remain unemployed.
19. The learned counsel for the respondents has referred to the
judgement passed by this Court reported in 2016 SCC OnLine Jhar
740 (Workmen being represented by Janta Mazdoor Sangh Vs.
Employers in relation to the management of Bhalgora Area)
paragraph 5 to submit that the writ courts do not sit in appeal, and
therefore, the scope of interference under Article 226 of the
Constitution of India is very limited. On the same point, he has
referred to the judgement passed by this Court in W.P.(L) No. 6820 of
2012 (Employers in relation to the Management of Karo Project of
M/s CCL Vs. Central Government Industrial Tribunal No.1 and
Ors.) decided on 17.08.2017 paragraph 10 and also the judgement
reported in AIR 1964 SC 477 (Syed Yakoob Vs. K.S. Radhakrishnan
and Ors.).
20. On the point of back-wages, he has relied upon the judgement
passed by the Hon’ble Supreme Court reported in (2005) 3 SCC 193
(Management of Madurantakam Coop. Sugar Mills Ltd. vs. S.
Viswanathan) paragraphs 5, 6 and 12 to 19. He has also relied upon
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the judgement reported in (2014) 6 SCC 434 (Iswarlal Mohanlal
Thakkar Vs. Paschim Gujarat Vij Company Limited and Another)
paragraphs 15, 19 and 21.
21. The learned counsel has also submitted that the petitioner being
public sector organization and model employer should not shy away
from doing justice to the widow of the concerned workman.
Findings by this Court
22. Admittedly, the concerned workman was terminated from
service vide order of dismissal dated 24/25.06.1982, after subjecting
the concerned workman to domestic inquiry pursuant to charge sheet
dated 11.03.1981 wherein following allegations were made:
(i) Distortion of figure of actual amount by overwriting
after the signature of the Manager and also before the
signature of the Manager.
(ii) Payment of less-wages than the actual amount
billed to some of the Under Ground Loaders of E.B.
Section.
(iii) Not mentioning the amount of wages paid in the
Identity Card in some cases, waiving the Standing
Instruct of the Company.
23. A reference was made for adjudication of following dispute to
the Central Government Industrial Tribunal I, Dhanbad under Section
10 (1) (d) (2A) of Industrial Disputes Act vide order dated 19.09.2001
and the terms and reference is quoted as under:
“Whether the action of the management of M/s ECL
in dismissing Sri Subodh Gorai from the service of the
company is fair and justified? If not, to what relief is
the concerned workman entitled?”
24. So far as the arguments of the learned counsel for the petitioner
that the reference was barred under Section 2 A (3) of Industrial
Disputes Act, 1947 which provides a period of 3 years from the date
of discharge/dismissal or retrenchment or otherwise termination of the
service of workman does not apply to the facts of this case. The
provision of Section 2A (3) applies with circumstances covered under
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Section 2 A (2). In the present case, the reference has been made
under Section 10 of Industrial Disputes Act and the case was not
instituted upon the workman approaching the Tribunal directly in
terms of Section 2A (2) and accordingly the limitation prescribed
under Section 2 A (3) of Industrial Disputes Act, 1947 does not apply
to the facts and circumstances of this case. The argument of the
appellant in this regard is hereby rejected. However, it still remains to
be examined whether the reference was bad and the dispute had
become stale and whether the workman suppressed material facts from
the authority/learned tribunal.
25. Prior to reference, after expiry of 15 years from date of
dismissal, the workman challenged the order of dismissal in writ
petition before Calcutta High Court and after expiry of more than 19
years from the date of dismissal, the aforesaid reference was made.
26. It is also important to note that admittedly the concerned
workman had challenged the order of dismissal before Hon’ble
Calcutta High Court after 15 years in writ petition being W.P.
No.22533 of 1997 which was dismissed on 20.02.1998. The order of
dismissal of the writ petition has been placed on record by the learned
counsel appearing on behalf of the writ petitioner and the order of
dismissal of the writ petition dated 20.02.1998 is quoted as under:
“The petitioner has questioned the order of his dismissal from
service in the above writ petition.
By an order dated 24th June, 1982 the petitioner was
dismissed from service as he was found guilty of offence of
grave nature. The enquiry was conducted against the
petitioner and charges were held to be proved against the
petitioner.
After a lapse of over fifteen years the petitioner has chosen to
question the said order of dismissal which is annexure-D to
the writ petition. The above writ petition has been filed after
15 years of the order of dismissal.
Therefore, for his own laches the writ petitioner has
disentitled himself for getting any relief. On this short ground
this writ Petition is dismissed but in the circumstances
without costs.
Let urgent certified xerox copy of this order be handed over
to the 1d. Advocate for the petitioner if it is applied for.”
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27. LPA was filed against the order of dismissal of the writ petition
and LPA was also dismissed vide order dated 24.02.1999 on the point
of limitation of 254 days and other technical defects in the memo of
appeal. The order of LPA is quoted as under:
“In our view, there is no ground for condonation
of delay in filing the appeal.
The appellant was dismissed from the service of
the respondents in the year 1982. The writ petitioner was
preferred for the first time against such dismissal in the
year 1997, which was dismissed on 20th February 1998.
The memorandum of appeal was filed after a long
delay of 254 days, and that too, without disclosing proper
ground for such delay. Even in the copy meant for the
second judge, there are blank places which have not been
filled up.
There cannot be any better proof of abusing
process of court.
The application for condonation of delay in filing
the appeal is dismissed.”
28. The writ petition and the appeal was filed by the concerned
workman before the Hon’ble Calcutta High Court, and therefore, it
was for the workman to disclose this fact before the authority referring
the dispute for adjudication and also before the learned Tribunal to
whom the dispute was referred for adjudication. The argument of the
learned counsel for the workman that the management was a party to
the writ petition and the appeal and hence even they could have
disclosed this fact to the tribunal is devoid of any merits. Non-
disclosure about filing of the writ petition before Calcutta High court
and its dismissal and also dismissal of the appeal amounts to
suppression of materials facts from the learned tribunal. This is
coupled with the fact that even the order of the writ court and the
appellate court do not reveal that any notice was ever issued to the
employer/present petitioner.
29. Both the parties filed their respective written statements before
the learned Tribunal on merit and a specific plea was also raised by
the management that the reference was a belated one. The plea of
belated reference was rejected by the learned Tribunal.
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30. Admittedly, the reference was made after expiry of about 19
years from the date of dismissal of the concerned workman and the
plea of claim being a stale was also raised by the management, but the
same was rejected by a cryptic order in the impugned award itself vide
paragraph 7 of the impugned award which is quoted as under:
“The main argument on behalf of the management is
that the reference has been made very late, but there is
no force in the argument of the management as in the
Industrial Disputes Act there is no limitation, so on this
ground, the reference cannot be rejected.”
31. The aforesaid order rejecting the plea that the dispute was a
stale dispute has been rejected by observing that the dispute can be
raised at any time. The learned tribunal has also referred to certain
judgements which was relied upon by the concerned workman who
submitted that the industrial tribunal cannot go into the validity of the
reference but it has to answer the reference and the reference cannot
be rejected on the ground of delay. However, no further discussion has
been made with respect to such submissions. The learned Tribunal
was wrong in its approach and this is apparent from the judgement
passed by the Hon’ble Supreme Court in the judgement reported in
(2015) 15 SCC 1 (Prabhakar Vs. Joint Director, Sericulture
Department and Another) wherein it has been held that even the
labour court/tribunal has the jurisdiction to decide as to whether the
dispute is a stale one or not and this would essentially depend upon the
facts and circumstances of the case. In the judgement passed by the
Hon’ble Supreme Court reported in (2015) 15 SCC 1 (Prabhakar Vs.
Joint Director, Sericulture Department and Another) the word ‘at
any time’ used in Section 10 of Industrial Disputes Act have been
considered. It has been held that the import of such word implies the
existence of live industrial dispute which has not become a stale claim
and also observed that whether the dispute is live or stale claim would
depend upon the facts and circumstances of each case and no hard and
fast rule for making order of reference can be laid down. In the said
case, the industrial dispute was raised after 14 years of termination.
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The Hon’ble Supreme Court summarized the legal position with
respect to raising of industrial disputes as under: –
“42. On the basis of the aforesaid discussion, we summarise the
legal position 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 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 that follows
would confine to 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
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
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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 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 the 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 refuse to make reference. 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.”
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32. Thus, refusal of the learned industrial tribunal to give a finding
as to whether the dispute raised by the workman was stale or not and
proceeding to decide the same by observing that dispute can be raised
at any time, is perverse. This is over and above the fact that the
concerned workman had suppressed material facts from the learned
tribunal that he had moved Calcutta High Court after 15 years in W.P.
No.22533 of 1997 and the writ petition was dismissed on 20.02.1998,
against which appeal filed before the Hon’ble Calcutta High Court
was also dismissed vide order dated 24.02.1999 as the appeal was also
barred by limitation of 254 days. Further, in the entire case records
there is no explanation for enormous delay in raising the industrial
dispute. Reference was made after 19 years of order of termination of
the concerned workman.
33. Accordingly, the impugned order dated 28.01.2009 is hereby
set aside and the writ petition is allowed.
34. Pending interlocutory application, if any, is dismissed as not
pressed.
(Anubha Rawat Choudhary, J.)
Date of pronouncement: 26.05.2026
Saurav/-
Date of uploading: 26.05.2026
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