Karnataka High Court
Raghavendra Ranga Pai vs Vishwanatha Pai on 4 August, 1995
Equivalent citations: ILR1995KAR2664
ORDER Mohan Kumar, J.
1. This case illustrates how otherwise a speedy remedy can be delayed and defeated by the deliberate actions. The petitioner which is a partnership firm had employed the 1st respondent herein as a clearing, packing and canvassing agent on a consolidated salary of Rs. 140/-. His services were terminated with effect from 31.8.1964. The present proceedings started challenging the termination. The 1st respondent challenged his termination as illegal and sought for appropriate remedy under the Shops and Commercial Establishments Act. The office of the petitioner-firm was situated in Mangalore in South Kanara District which was formerly part of the erstwhile Madras State. The said appeal was preferred invoking Section 41 (2) of the Madras Shops and Commercial Establishments Act, 1947 (hereinafter referred to as 'the Madras Act') before the Competent Authority then competent to entertain the appeal. Annexure-B is the appeal filed by the 1st respondent in September 1964 and Annexure-C is the counter statement filed by the Petitioner herein on 7.4.1965 raising several objections to the claim petition filed by the 1st respondent herein.
2. After hearing the respective contentions the Appellate Authority by the impugned order has allowed the appeal. The dismissal order was set aside and the worker has been ordered to be reinstated with full backwages till reinstatement. The said award is challenged in this proceeding.
3. Sri A.G. Holla, learned Counsel for the petitioner, has formulated the following contentions challenging the impugned order. They are:
i) the authority to exercise jurisdiction under the Madras Act is not the Commissioner for Workmens' Compensation but the Labour Commissioner and therefore the order passed is without jurisdiction;
ii) the employee had superannuated at the age of 60 and therefore there was no power vested with the appellate authority to call upon the employer to reinstate him;
iii) the only relief that can be granted for the illegal termination is award of backwages to the extent of 9 months and no order of reinstatement can be granted.
4. The petitioner is estopped from raising the first objection regarding the jurisdiction of the named Authority to try and dispose of the appeal. The appeal has been preferred under the Madras Act, Before proceeding we may advert to the following facts.
5. In the light of the contention urged in this proceeding regarding the jurisdiction of the Officer to deal with the appeal and pass the impugned order, I requested the learned High Court Government Pleader to make available the files of the Appellate Authority in question for perusal. The learned Government Advocate has made available the entire file for perusal.
6. As stated the appeal was preferred under Section 41(2) of the Madras Shops and Commercial Establishments Act, 1947. It appears that at the relevant time the Appellate Authority constituted under Section 41 of the Madras Act was the Commissioner for the Workmens' Compensation. At the relevant time, the Officer designated as the Commissioner for Workmens' Compensation was the Assistant Commissioner (Revenue). The appeal was hence entertained by him and posted for hearing to 17.3.1965. It appears in the meanwhile the Head Quarters Assistant to the District Registrar was notified as the Commissioner for Workmens' Compensation. The appeal was therefore transferred to him. Before him, the parties appeared and more than after twenty five postings it is seen from the file that on 15.5.1967 the Authority expressed a doubt as to his competency to hear the appeal. It therefore transferred the file to the Assistant Commissioner (Revenue) again to hear the appeal. There was another appeal No. SEAC 6/63-64 also apparently filed under the Madras Act pending at the relevant time wherein also similar doubt regarding jurisdiction had been raised with regard to the proper forum to hear the appeal. An order appears to have been passed therein that the proper authority to hear the appeal is the Head Quarters Assistant to the District Registrar who is notified as the Commissioner for Workmens' Compensation. Following the orders therein the present appeal in question was also transferred back to Head Quarters Assistant to the District Registrar. This was on 18.3.1968.
7. The next posting of the appeal was to 27.1.1970. Thereafter, after the appeal underwent half a dozen adjournments a letter is seen received from the Office of the Labour Commissioner, Bangalore dated 10.6.1970 intimating that the proper authority under the Madras Act to hear the appeal is Assistant Commissioner (Revenue). The appeal was accordingly transferred to his file.
8. The posting before him commenced from 10.8.1977, Before him as well no serious progress is seen made with respect to the hearing of the appeal except of granting of adjournments. Both sides were represented and both sides contributed their share in seeking adjournments. On 13.6.1979 the Officer hearing the appeal recorded the following order:
"Case called. The Ads.pray for time. But the case is to be tried MSEA 1961 which authorised Labour Officer to try. Hence transferred to the Labour Officer."
But when the appeal came before the Labour Officer on 10.8.1979 both Counsels submitted that the appeal has to be heard by the Assistant Commissioner, Mangalore. It was transferred to his file accordingly. It is to be noted that the petitioner also represented for the transfer of the appeal.
9. Again after the appeal was posted before the Assistant Commissioner it was being adjourned from time to time. It is seen that the parties fully participated at the hearing. As a matter of fact on 17.1.1980 the petitioner herein (who was respondent in the appeal) produced the documents to prove their case. The appeal was posted for evidence to 13.2.1980.
10. It may be remembered, that under the Madras Act the notified Appellate Authority under Section 41 to hear the appeal was the Commissioner for Workmens' Compensation. Hence, whoever was discharging the function of the Commissioner for Workmens' Compensation for the area was entitled to hear the appeal. The appeal was therefore being heard accordingly by the Competent Officer notified as the Commissioner for Workmens' Compensation.
11. The appeal was being posted from time to time. Both the sides appeared and participated without demur. They did not raise the question of want of jurisdiction for the Appellate Authority to hear the appeal. I find from the records that at the posting to 17.1.1980 the petitioner herein produced documents as well. The appeal was being adjourned from time to time without any tangible progress. It is seen that on 21.8.1980 the worker was examined and it was adjourned for the employer's evidence. But after nearly 30 such adjournments at the posting on 29.11.1984, the Commissioner for Workmens' Compensation adjourned the appeal.
"Called. Both parties to the case present. The Commissioner for Workmens' Compensation has sought clarification before the Commissioner for labour regarding the jurisdiction of this case. Further proceeding will be taken up after receipt of the clarification from the Commissioner of Labour, Bangalore after issuing due notice to this parties."
The awaited clarification was issued only on 18.11.1985 stating that the concerned Commissioner for Workmens' Compensation having territorial jurisdiction over Mangalore may deal with the appeal. Since the Labour Officer of the Labour Department was notified as the Commissioner for Workmens' Compensation the said Officer was directed to hear the appeal.
12. The appeal was posted to various dates. Neither the petitioner nor the respondents sought permission to lead fresh evidence. They proceeded with the evidence already recorded. It is seen that by 12.6.1986 the evidence of the employer was also completed. Thereafter it is seen that the appeal was posted for argument but it was being adjourned from time to time without being argued. It was adjourned several times and the appeal is seen finally argued before the Designated Officer. After nearly twenty five adjournments it is seen that notes of arguments were also filed by the petitioner's Counsel. The order was pronounced thereafter.
13. It is interesting to note that not even on one instance did the Counsel for the petitioner raise the contention that the particular Officer who was hearing the appeal had no jurisdiction to do so. In fact on 13.6.1979 the petitioner could have raised this question. But they submitted to the jurisdiction. Again on 29.11.1984 the petitioner was put to notice on this aspect. There was no objection raised even thereafter regarding the jurisdiction. Instead as stated earlier, the petitioner submitted notes of arguments as well. There also the question of want of jurisdiction is not seen raised by the petitioner.
14. It may be noted that by virtue of Section 42 of the Mysore Act, the Madras Act will continue to apply to those parts of the erstwhile Madras State and Mangalore being part of South Kanara which was formerly part of the Madras State, the Madras Act extended. This is clear from Section 42 of the Mysore Act which reads thus:
"42. REPEAL AND SAVINGS: The Bombay Shops and Establishments Act, 1948 (Bombay) Act LXXIX of 1948), as in force in the Bombay area, the Hyderabad Shops and Establishments Act, 1951 (Hyderabad Act X of 1951), as in force in the Hyderabad Area the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947), as in force in the Madras Area, and the Mysore Shops and Establishments Act, 1948 (Mysore Act II of 1948), as in force in the Mysore Area, are hereby repealed:
Provided that Section 6 of the Mysore General Clauses Act, 1899 (Mysore Act III of 1899) shall be applicable in respect of such repeal and Section 8 and 24 of the said Act shall be applicable as if the said Acts had been repealed and re-enacted by this Act."
Under the Madras Act the Appellate Authority has to be constituted under Section 41 (2) of the Act which is as follows:
"41 (2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with its services or on the ground that he had not been guilty of misconduct as held by the employer."
15. The contention of the petitioner's Counsel is that the appeal to be filed before the Authority prescribed under the Act and within the time prescribed. In other words the word "prescribed" in the Section, qualifies both the Authority as also the period of limitation. Prescribed means prescribed by Rules (vide definition). According to him under the Rules framed in 1947 the Labour Commissioner had been prescribed as the Appellate Authority. Therefore according to him the Labour Commissioner alone can exercise the powers of the Appellate Authority. It is contended that if a different officer had to be nominated the Rule should be amended accordingly. In this case, the appeal has been heard by the Commissioner for Workmens' Compensation. Hence according to the learned Counsel this is totally without jurisdiction and the order is a nullity.
16. I am of the view that this contention has to be rejected for more reasons than one. The expression in Section 41 (2) provides for "a right to appeal to such authority and within such time as may be prescribed". It means the appeal is to be preferred before such Authority and within such time as may be prescribed. It only means that the appeal has to be preferred before the Appellate Authority constituted and within the stipulated time. This Rule as originally framed constituted the Labour Commissioner to be the Appellate Authority. But in 1964 we find the appeal was presented and entertained by the Commissioner for Workmens' Compensation. The petitioner did not object to the presentation and entertainment of the appeal. The 1947 Rules might have been amended constituting the Commissioner for Workmens' Compensation to be the Appellate Authority, Therefore as per the law in force in 1964 the Authority prescribed to entertain the appeal under Section 41(2) of the Madras Act was the Commissioner for Workmens' Compensation. Annexure-B memorandum of appeal shows that before the said Authority that the appeal had been preferred. The case underwent more than 100 adjournments before the said Authority. On all these occasions the petitioner appeared without fail. He contested the main matter. He never raised any question as to the jurisdiction. It is seen from the proceedings papers that he in fact wanted the Commissioner for Workmens' Compensation to hear the appeal. As a matter of fact when the appeal was transferred to the Assistant Labour Commissioner who was exercising the powers of the Appellate Authority under the Mysore Act the petitioner did not object but appeared and participated at the hearing. The Assistant Labour Commissioner himself retransferred the same to the office of the Commissioner for Workmens' Compensation. Without demur the petitioner appeared before him as now as well. In these circumstances it is not open for the petitioner to raise the question regarding jurisdiction. As held by the Madras High Court in Mannarghat Union Motor Services Ltd., Mannarghat, South Malabar v. Regional Transport Officer, Malabar and Ors.:
"If the petitioners thought that the Regional Transport Authority had no jurisdiction, they should have raised that plea without taking a chance of getting a decision in their favour. Designedly or ignorantly they kept quiet or perhaps they did not want to displease the Regional Transport Authority, or, they expected that it would decide in their favour, it is too late to question the jurisdiction of a Tribunal to which they have submitted. A Full Bench of this Court held in - 'Latchmanan Chettiar v. Corporation of Madras', 50 Mad. 130 (FB) that failure to object to jurisdiction before the lower Court is a bar to obtaining a writ of certiorari, whether the objection to jurisdiction is based on a pure point of law or based on facts which were or should have been within the knowledge of the applicants during the proceedings in the lower Court. The said judgment is binding on me."
It is not open to the petitioner to urge the contention of want of jurisdiction. This principle is reiterated by this Court in C.Y. Parthasarathy v. Syndicate of the Mysore University. This Court states thus:
"It is true, that jurisdiction cannot be conferred by consent, of the parties where it does not otherwise inhere in the authority concerned; but it is equally true that the High Court can while exercising its extraordinary and discretionary powers under Article 226 of the Constitution decline to interefere with an order of a subordinate authority if it is satisfied that an objection relating to a defect of procedure or jurisdiction which would have been and ought to have been raised at the earliest opportunity was not so raised by the party complaining before it. The Rule that acquiescence of the party belatedly making a grievance about the jurisdiction of the subordinate authority disentitled him invoke the Writ jurisdiction of the High Court, does not rest on the foundation that acquiescence, confers jurisdiction but on the rationale that the High Court will be justified in refusing to exercise its jurisdiction in favour of a person who has either by reason of Jack of diligence or by design remained on the fence, allowed the authority to pass an order and seeing that the same has gone against him turned round to challenge its competence, to have done so.
20. In any such situation, it would be reasonable to infer that the party making the grievance about the competence of the subordinate authority, acted unfairly in not raising the objection at the very outset; It would also be reasonable to assume that he did so, deliberately hoping that the final order to be passed by the authority would be in his favour, but finding it go against him, he attacks the same as being without jurisdiction. In other words the person concerned indulges in what may be termed as 'diluted deception' by keeping quite, when he was, in fairness to all those concerned with the proceedings before the authority, under an obligation to speak out. He attempts by his silence to secure a favourable verdict, which if given, would have buried for ever the question of competence of the authority to handle the subject matter, tt is this trickery which the Courts have frowned upon by declining to interfere with the actions of subordinate authorities, where acquiescence or acceptance of their jurisdiction is manifested by the facts of a given case."
In the light of these the contention that the Appellate Authority has no jurisdiction has to fail. Under the Madras Act, the Appellate Authority is the Commissioner for Workmens' Compensation. If so, whoever exercises the power of the Commissioner for Workmen's Compensation is entitled to hear the appeal under Section 41(2) of the Madras Act. The facts stated in the preceding paragraphs clearly shows that the petitioner had submitted to the jurisdiction of the Appellate Authority and participated fully.
17. As regards the 2nd contention is concerned viz., attainment of age of superannuation it has to be noted that no such plea had been raised originally in the written statement filed by the employer. Perhaps at the relevant time said plea was not relevant as the employee was only aged around 43 years then. We have seen how protracted the proceedings were and the blame has to be squarely placed at the doors of the employee who was more eager to seek adjournment than proceed with the case. After having adopted this course it lies ill in the mouth of the employer to raise the said plea. Though this plea has to be rejected for that score alone, nevertheless as it goes to the root of the matter, I am considering the question as well.
18. The learned Counsel in this behalf has relied on several Decisions to sustain his contention. To begin with he cited 1984(1) LLJ 35 Workmen of Bharat Petroleum Corporation Ltd, Refining Division, Bombay v. Bharat Petroleum Corporation Ltd. to support his plea. Basing on this Decision he wanted to contend that the age of superannuation cannot exceed 60. Perhaps it is possible to so urge. But while adopting any particular age as the age of superannuation there should be evidence regarding the age of superannuation in the similar establishment in the area. In this behalf we may advert to what is stated in the said Judgment.
"In DUNLOP RUBBER COMPANY case (supra) and in the IMPERIAL CHEMICAL INDUSTRIES case (supra) the Supreme Court primarily relied on the trend in the region and in the Burmah Shell Oil Company case (supra) the Court observed that the trend in a particular area was the most important factor in the matter of fixing the age of superannuation. Another factor which appears to be receiving importance in certain circles is the raising rate of unemployment amongst the younger generation. The effect of increasing or decreasing the age of retirement on the rate of unemployment in the younger generation and on the household economics of the older generation is a matter for deep study and investigation. There is no evidence before us on these points."
As stated above the question as to whether what should be the age of superannuation of the employee is a matter to be decided taking into account various factual aspects, which are pleaded and proved by adducing evidence.
19. The most important factor in the matter of fixing the age of superannuation in the absence of direct evidence in this behalf is the condition prevailing in the particular area. The employer or the employee as the case should lead evidence to show that in similar establishments in the particular area the age of superannuation is fixed at a particular age. Going by this evidence, the Tribunal has to come to the conclusion what should be the proper age of superannuation. No particular age can be stipulated as a rule as the age of superannuation without pleading and evidence. The age of retirement is strictly a matter of contract between the employer and employee. Unless and until such evidence is forthcoming such age of superannuation cannot be stipulated and no particular age as contended by the petitioner can be adopted by the Court as well. In this case there is no evidence tendered by the petitioner to indicate what is the normal age of retirement in establishment similar to that of the petitioner. That apart it may be noticed that the nature of work which the 1st respondent was to discharge does not involve any serious application of mind. That does not also involve physical exertion as well. In this case there is no independent evidence regarding the age of superannuation/retirement as claimed by the petitioner. But nevertheless it cannot be held that the worker can go on employed till he dies. As stated earlier, the age of superannuation is a matter of contract between the employer and the employee. Therefore, in the absence of any pleading and evidence, the Court can certainly fix a reasonable age as the age of superannuation. The Appellate Authority under the Act can exercise all the powers of the Industrial Tribunal. The power of the said Tribunal are as noticed by the Supreme Court in PREMIER AUTOMOBILES LTD. v. KAMALKAR SHANTARAM WADKE AND ORS. , as thus:
"...Different kinds of authorities having very varied and extensive powers in the matter of settlement and adjudication of industrial disputes have been constituted. Since the time of the earliest decisions of the Federal Court and the Supreme Court of India it has been recognised fully well that the powers of the authorities deciding industrial disputes under the Act are very extensive -much wider than the powers of a Civil Court while adjudicating a dispute which may be an industrial dispute. The Labour Courts and the Tribunals to whom industrial disputes are referred by the appropriate governments under Section 10 can create new contracts, lay down new industrial policy for industrial peace, order reinstatement of dismissed workmen which ordinarily a Civil Court could not do."
If so, the Appellate Authority exercising powers under Section 41 (2) of the Madras Act can also exercise similar power. In the instant case, it is reasonable to fix 70 years as the age of superannuation. In doing so, there is bound to be some arbitrariness. But at this distance of time after this proceeding had allowed to be kept pending for over 25 years before the Appellate Authority itself, it is not fair or proper to remand the proceedings for the purpose of fixing the age of superannuation. Besides no such opportunity need be extended to the petitioner as he did not raise such a plea before the Appellate Authority at any time even though the worker crossed the age of superannuation while the appeal was pending. When the proceeding was initiated the worker was aged 43 years. (He was 59 years in 1980 when he was examined in the case). That was in 1964 B. Narayana v. B. Damodara Prabhu & Co. He attained the age of 60 in 1981. He crossed the age of 65 years when the proceedings were pending. The employer did not point out at that stage that since the worker had attained 60 years, the alleged age of superannuation, the Authority cannot order reinstatement and the relief of reinstatement should be declined. Therefore it is reasonable to assume that the employer did not consider 60 years as the age of superannuation. Besides on the date of the order the worker had attained the age 68 years. Hence if 70 years is fixed as the age of superannuation then the petitioner could be ordered to reinstate the worker and retired on the date he attains the age of 70 and be superannuated.
20. The next contention urged by the petitioner is with regard to the relief to be granted to the worker. He relied on the Decision of this Court reported in 1967(2) Mys.L.J.264 to contend that the worker is not entitled to relief in excess of nine months wages. I am of the view the following passage in the said Decision will make it clear that the said submission is not correct:
In my opinion, the purpose of an appeal under Sub-section (2) of Section 41 is to enable the employee to secure an adjudication on the legality of the termination of his service, and although it is not necessary for me to express any opinion on that matter in this case, it may be within the competence of the Appellate Authority to make available to the employee one of the many reliefs to which he would be entitled in consequence of an adjudication that the termination was illegal. It might be open to the Appellate Authority to direct reinstatement or to direct the payment of compensation or the like. But unfortunately, the Appellate Authority stopped, with a mere declaration that the termination was illegal and without giving the employee any relief either in the form of reinstatement or compensation."
In this case, the Appellate Authority had ordered reinstatement of the worker. Again if we peruse the pleading before the Appellate Authority, the plea as now raised has not been urged. Hence there is no illegality in so far the relief granted to the worker. In this adjudication pending the Appellate Authority held that the termination of the worker as illegal. It therefore awarded the relief that the worker was entitled to.
21. That apart, the above Decision arose out of a civil suit. In that the Appellate Authority merely declared the termination to be illegal. It did not grant any consequential relief of reinstatement which it was entitled to. It was hence that the employee instituted a regular civil suit claiming damages. While examining this claim this Court observed that since the relief he claimed was not awarded by the competent authority under the statute the said relief cannot be granted by the Civil Court. This is the main reason why the Court declined to award full back wages. It was in these circumstances this Court has given the relief to the extent of 6 months. In the light of the facts stated therein the said Decision has no application in this case. In this case, the Appellate Authority has granted a relief of reinstatement. When reinstatement is ordered all other consequential reliefs will also follow. Hence I do not think the Decision reported in 1967(2) My.L.J. 264 may be applicable to this case. It is settled law that the Appellate Authority constituted under the enactment in question exercises similar powers as that exercised by the adjudicating Tribunal constituted under the I.D.Act 1947 See the following observations in National Engineering Industries Ltd. v. Shri Kishan Bhageria and Ors.:
"....It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two Acts. These two Acts, in our opinion, are supplemental to each other.
xxx xxx xxx ...Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months' time in Section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy."
The Supreme Court was considering the scope of the Rajasthan Shops and Commercial Establishment Act which is on par with the Madras Act.
22. The Appellate Authority has examined the question on merits and has passed the order impugned. As no attempt was made to challenge the factual finding arrived at by the Appellate Authority, I am not called upon to re-examine the same. Since the worker has attained the age of 70 years in 1991 he will be entitled to back wages in lieu of reinstatement from the date of termination i.e., from 1.8.1964 till he attained the age of superannuation. He will be entitled to all increments and bonus for all the period.
23. This is an unfortunate case, which as seen from the records, spread over a span of 30 years for adjudication. It is high time that some steps are taken to avoid such delays. These legislations are enacted for speedy redressal of the grievances of the aggrieved workers. But the enactments due to various reasons do not achieve these objects. One wonders as to who is responsible for the delay. But in this case I am compelled to state that the delay is largely due to the adjournments sought for by the petitioner himself when the appeal was posted for hearing. After having participated fully before the Appellate Authority the petitioner has now turned round and raised a contention regarding the jurisdiction of the Appellate Authority itself as well. This only shows that the intention of the petitioner is only to deny the relief the worker was entitled to at any cost. The worker should therefore be entitled to cost. The Writ Petition is hence dismissed with costs of the 1st respondent. Advocate fee is fixed at Rs. 1,000/-.