Madhya Pradesh High Court
Smt. Shashi Kala Jeattalvar vs The Divisional Railway Manager on 30 January, 2018
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THE HIGH COURT OF MADHYA PRADESH
WP-13175-2017
(UNION OF INDIA Vs SMT. SHASHIKALA JEATTALVAR)
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Jabalpur, Dated : 30-01-2018
In these petitions, the employer and the workman (represented by his
widow/legal heir) are at loggerheads on respective portions of award of
Central Government Industrial Tribunal-cum-Labour Court (hereinafter
referred to as âTribunalâ), Jabalpur dated 04.10.2006 passed in Case
No. CGIT/LC/R/48/2003. The employer is also aggrieved by order of the
Tribunal dated 13.04.2012 whereby the preliminary issue regarding
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legality and validity of departmental inquiry was answered against the
employer.
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2. Draped in brevity, the relevant facts are that the appropriate
Government by letter dated 10.02.2003 sent an industrial dispute to the
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Tribunal for its adjudication. The Tribunal was required to answer the
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following reference:
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âWhether the action of the management of Divisional Railway
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Manager, Central Railway, Bhusawal (Maharashtra) in stopping
the services of Shri Virendra Kumar S/o Shri Narsingh Rao w.e.f.
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02.12.1992 is legal and justified ?
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If not, to what relief the workman is entitled to ?â
3. After receiving notices, the parties filed their respective statement of
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claim and written statement before the Tribunal. The Tribunal framed a
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preliminary issue regarding validity of departmental inquiry which
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resulted into termination of Shri Virendra Kumar. The issue No.1 was
decided on 13.04.2012. The Tribunal came to hold that the management
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has failed to file any inquiry papers in the proceedings. In absence of
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record of departmental inquiry, the Tribunal accepted the allegations of
other side regarding procedural flaw in the domestic inquiry and opined
that inquiry was vitiated. Consequently, the employer was given liberty to
prove the misconduct in the Court. The management thereafter led
evidence before the Tribunal. The Tribunal in its award dated 04.10.2016
found that the management was not able to prove the misconduct and
accordingly, the removal order was set aside. Since the workman Shri
Virendra Kumar died during the pendency of the proceedings before the
Tribunal, the Tribunal directed to pay Rs.2 lacs as compensation to the
workman besides holding that action of management in stopping the
services of Shri Virendra Kumasr w.e.f. 02.12.1992 was not legal.
4. The stand of the employer is that the workman was subjected to a
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disciplinary proceedings. After following the principles of natural justice,
the inquiry was concluded and the punishment of dismissal from service
was inflicted on the workman way back on 02.12.1992. He was dismissed
from Bhusawal (Maharashtra) in December, 1992. He did not challenge
the dismissal order before any forum for a long time. He preferred an
appeal dated 30.01.2001 (Annexure-P/3) wherein he did not challenge the
procedural part or decision making process of departmental inquiry. He
prayed for substitution of punishment by suggesting that other minor
punishment are available in the statute book which can replace the
punishment of termination.
5. Another mercy appeal (Annexure-P/5) dated 09.04.2001 is on the same
line and subject. Reliance is placed on yet another appeal dated
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19.04.2001 (Annexure-P/6).
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6. Shri N.S. Ruprah, learned counsel for the employer submits that in
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none of the appeals, the workman attached the decision making process
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and hence he is âestoppedâ from raising these points at a later stage
before the Tribunal. The main ground of attack to the award is that since
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reference was made belatedly i.e. after 11 years from the date of
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termination of the workman, no relief was due to the workman. No
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industrial dispute existed in the eyes of law. The workman cannot take
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advantage of his own inaction whereby he raised industrial dispute after
about a decade and during this time, the record of the disciplinary
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proceedings were either destroyed or not traceable. For the delay on the
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part of the workman, the employer cannot be held responsible and the
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departmental inquiry could not have been declared illegal for non-
production of record of domestic inquiry. Reliance is placed on 2001 (5)
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SCC 340 (Deokinandan Sharma Vs. Union of India and others) and
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2008 (10) SCC 115 (C. Jacob Vs. Director of Geology and Mining and
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another). It is urged that after having taken the solitary ground
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regarding quantum of punishment in successive appeals, the workman
has waived his right to raise any other ground before the Tribunal.
Reliance is also placed on 1996 (5) SCC 609 (Pfizer Ltd. Vs. Mazdoor
Congress and others) and 2014 (4) SCC 108 (Chennai Metropolitian
Water supply and Sewerage Board and others).
7. Per contra, Shri Ashish Mishra, learned counsel for the workman
contended that the Tribunal was justified in declaring the departmental
inquiry as illegal. In the Industrial Dispute Act, no limitation is prescribed
to raise an industrial dispute. Hence, on the ground of alleged delay in
raising dispute, no fault can be found in the award of the Tribunal. The
Tribunal has partially erred in not granting the benefit of backwages till
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the date of death of the workman and also the retiral dues/pension etc.
These benefits are claimed by the workman with 18% interest on delayed
payment. Shri Mishra relied on 2014 (10) SCC 301 (Raghubir Singh Vs.
General Manager, Haryana Roadways, Hisar) and an unreported
order passed in W.P. No.201/2016 (Shamim Bano Vs. Manager,
Gajandoh Mines of WCL) decided on 10.04.2017.
8. No other point is pressed by learned counsel for the parties.
9. I have heard learned counsel for the parties at length and perused the
record.
1.True it is that in ID Act, 1947, no limitation is prescribed for raising an industrial dispute. The Limitation Act, 1963 is also not applicable to the reference made under the ID Act. The Apex Court in 2013 (14) SCC 543 sh (Rajasthan State Agriculture Marketing Board Vs. Mohan Lal) held e that though no limitation is prescribed, the delay in raising industrial ad dispute is definitely an important circumstance which the Labour Court Pr 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. In the a hy instant dispute, the employer had categorically raised the objection regarding delay in raising the dispute. Thus, as a thumb rule, it cannot be ad said that delay has no significance in an industrial dispute.
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11. In 2015 (15) SCC 1 (Prabhakar Vs. Sericulture Department), it was poignantly held that notwithstanding the fact that the law of of limitation does not apply, it is to be shown by the workman that there is a rt dispute in presenti. For this purpose, it has to be demonstrated that even ou if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist.
C Therefore, if the workman is able to give satisfactory explanation for h these laches and delays and demonstrated that the circumstances ig disclose that issue is still alive, delay would not come in his way.
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12. Similarly, in 2005 (5) SCC 91 (Haryana State Co-operative Land Development Bank Vs. Neelam), the Court held that the aim and object of ID Act may be to impart social justice to the workman, but the same by itself would not mean that irrespective of his conduct, a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings.
13. In this view of the matter, it can be safely concluded that delay is a relevant factor which needs to be considered by the Industrial Tribunal. In the instant case, the reference was made after 11 years from the date of termination of the workman. The workman was not able to establish Document Title Center Text 4 that the issue was still alive when matter was referred by the appropriate Government. This is equally settled that doctrine of laches is in fact an application of maxmim of equity âdelay defeats equitiesâ. This principle was also considered by the Supreme Court in the case of Prabhakar (supra). The Tribunal did not frame any issue on the objection of the employer relating to delay in raising industrial dispute. In the impugned award also, the Tribunal has not examined the impact of delay in raising the industrial dispute. Thus, the award of the Tribunal has become vulnerable.
14. As noticed, the Tribunal declared the departmental inquiry as illegal because the Railway Administration could not produce the record of the departmental inquiry. The question is : whether such a course adopted by sh the Tribunal was in accordance with law ? More so, when the workman e raised the dispute belatedly i.e. after 11 years from his dismissal and ad during this time, the record of a departmental inquiry became Pr untraceable. Shri Ashish Mishra, learned counsel for the workman placed heavy reliance on 2014 (10) SCC 301 (Raghuveer Singh Vs. General a Manager, Haryana Roadways, Hissar) and contended that since hy Limitation Act has no application on reference made by appropriate ad Government, no fault can be found in the award. A careful reading of the M said judgment shows that the Apex Court considered the aspect of delay in raising the industrial dispute. It was recorded that âmoreover, it is of reasonable to adjudicate the industrial dispute in spite of delay in raising rt and referring the matter, since there is no mention of any loss or ou unavailability of material evidence due to delayâ. Thus, as per the judgment of Raghuveer Singh (supra) also, if because of delay, the C evidence or record becomes untraceable/unavailable, delay becomes h fatal.
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15. In 1993 Supp (4) SCC 67 (Ratan Chandra Sammanta Vs. Union of H India), it was held that a 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. The same view has been taken by Supreme Court in 2007 (9) SCC 109 (Dharappa Vs. Bijapur Cooperative Milk Producer Societies Union Ltd). In 2000 (2) SCC 455 (Nedungadi Bank Ltd. Vs. K.P. Madhavankutty) and 2001 (1) SCC 133 (Balbir Singh Vs. Punjab Roadways), the Apex Court poignantly held that the delay would be fatal if it has resulted in the material evidence relevant to adjudication being lost or rendered Document Title Center Text 5 unavailable. Unfortunately, the learned Tribunal has not considered these relevant aspects.
16. If the facts of the instant dispute are examined on the anvil of the aforesaid principles laid down, it will be clear like noon day that the workman had miserably failed to give any satisfactory explanation for delay and laches in raising the industrial dispute. He could not demonstrate that the circumstances disclose that issue is still alive and delay will not come in his way. In absence of establishing the aforesaid, it cannot be said that the dispute was alive or existed when reference was made. On the basis of belated reference in the present case, no relief was due to the workman.
17. The Supreme Court in catena of judgments held that when delay sh resulted in material evidence relevant to adjudication being lost or e rendered unavailable, delay is fatal. This principle is squarely applicable ad in the present case. The departmental inquiry was held to be illegal Pr mainly on the ground that the employer could not produce the record of the departmental inquiry. The inquiry record became unavailable because a of delay in raising such industrial dispute. The enquiry record was not hy traceable after a decade of termination of workman and for this reason, ad enquiry could not be declared as bad because workman was responsible M for this delay of 11 years. This is equally settled that a party cannot take benefit of his own wrong. [See: 2014 (1) SCC 648 (Oil and Natural Gas of Corporation Limited Vs. Modern Construction and Company)].
rt â20. This Court in Bhartiya Sewa Samaj Trust Vs. Yogeshbhai Ambalal ou Patel, 2012 (9) SCC 310, while dealing with the issue held:
28. A person alleging his own infamy cannot be heard to any forum, C what to talk of a writ court, as explained by the legal maxim h allegans suam, turpitudinem non est audiendus. If a party has ig committed a wrong, he cannot be permitted to take the benefit of H his own wrong â¦.. This concept is also explained by the legal maxims commodum ex injuria sua non habere debet and nullus commodum capere potest de injuria sua propria.â
18. As analyzed above, it is clear that the Tribunal had missed the relevant points. The points were relating to impact of belated reference which was raised after 11 years from the date of termination. The Tribunal also failed to see that delay in raising the industrial dispute has resulted into loss of documentary evidence/record of the departmental inquiry. The Tribunal without considering the settled legal position, mechanically held that departmental inquiry was vitiated and on merits, the employer could not establish the charge after 11 years. Without Document Title Center Text 6 considering the aforesaid material points, the Tribunal mechanically answered the reference in favour of the workman. Thus the order dated 13.04.2012 and the award dated 04.10.2016 cannot sustain judicial scrutiny. Accordingly, the award dated 04.10.2016 is set aside. Resultantly, W.P. No.13175/2017 filed by the employer is allowed. As a corollary, W.P. No.2133/2017 filed by the workman is dismissed.
19. Petitions are disposed of.
(SUJOY PAUL) JUDGE e sh Biswal ad Digitally signed by SHIBA NARAYAN BISWAL Pr a Date: 2018.01.31 11:15:05 +05'30' hy ad M of rt ou C h ig H