Madras High Court
Amanullah vs The Chennai Port Trust on 5 September, 2014
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 05-09-2014
CORAM:
THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.A.No.560 of 2013
Amanullah ... Appellant
Versus
1. The Chennai Port Trust,
Rep. By its Chairman,
Rajaji Salai,
Chennai 600 001.
2. The Presiding Officer,
Central Govt. Industrial Tribunal cum Labour Court,
Sastri Bhavan, Haddows Road,
Nungambakkam,
Chennai 600 034. ... Respondents
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 23.11.2012 made in W.P.No.19054 of 2011.
For Appellant :- Mr.Balan Haridas
For Respondents :- Mr.P.M.Subramanian for R1
R2-Court
Date of Reserving for Judgment
Date of Pronouncing the Judgment
21-8-2014
5-9-2014
J U D G M E N T
This writ appeal is directed against the order of the learned Single Judge made in W.P.No.19054 of 2011 dated 23.11.2012 in allowing the writ petition filed by the first respondent herein challenging the award of the Labour Court made in I.D.No.25 of 2008 dated 17.01.2011. In the said award, the Labour Court has set aside the order of discharge passed against the appellant herein and modified the punishment as compulsory retirement and consequently directed the Management/first respondent herein to disburse the terminal benefits of the appellant.
2. Following are the brief facts that arise for consideration in this writ appeal:
(a) The appellant was employed as Assistant Shed Master under the first respondent Management with effect from 08.08.1966. He was discharged from service by an order dated 20.04.1983 on the ground of unauthorised absence from 19.09.1982. Challenging the said order of discharge, he preferred an appeal before the Appellate Authority on 02.04.1991 and the said appeal was dismissed. As against the dismissal of the appeal, the appellant did not prefer any further appeal or any other legal proceedings.
(b) However, he made a representation on 15.03.2002, seeking for reinstatement with full benefits. The said request was rejected by the Management stating that the same cannot be accepted as the appellant attained the age of retirement on 30.09.1990 itself, even assuming that he was not discharged from service. Thereafter, the appellant made several representations and finally made a request on 07.03.2003, seeking for grant of pension and other retirement benefits. Though the first respondent rejected the said request, the appellant made repeated representations on 24.11.2003 and 12.03.2004, seeking pension and other retirement benefits.
(c) The appellant filed a writ petition in W.P.No.14736 of 2005 seeking direction to the Management to disburse the terminal and pensionary benefits. The said writ petition was dismissed on 29.4.2005 with liberty to the appellant to raise industrial dispute in respect of his claim for the terminal benefits. Thereafter, the appellant raised an industrial dispute before the Assistant Labour Officer. The said official submitted his failure report on 20.02.2008. Pursuant to the failure report, the Ministry of Labour, New Delhi, referred the dispute on 15.5.2008 before the Central Government Industrial Tribunal-cum-Labour Court, Chennai and the same was taken on file in I.D.No.25 of 2008.
(d) The Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred to as 'Labour Court') found that the discharge of the appellant was not fair and proper and the punishment was shockingly disproportionate to the gravity of misconduct. Consequently, the Labour Court directed the first respondent Management to disburse the terminal benefits of the appellant treating the appellant as retired from service on compulsory retirement. Aggrieved against the said Award, the first respondent filed the writ petition in W.P.No.19054 of 2011.
3. The learned Single Judge allowed the writ petition on 23.11.2012 by holding that the Labour Court has exceeded its jurisdiction as the modification of punishment of discharge into one of compulsory retirement was beyond the scope of reference. Challenging the said order of the learned Single Judge, the present writ appeal is filed before this Court.
4. Mr.Balan Haridas, learned counsel appearing for the appellant submitted that the reference made to the Labour Court cannot be decided in isolation without considering the correctness or otherwise of the order of punishment and giving a finding on that issue as well. The Labour Court was justified in considering the correctness of the order of punishment, as such power is very much available under section 10(4) of the Industrial Disputes Act, 1947 in order to find out as to whether the appellant is entitled for terminal benefits or not. While considering the main issue, incidentally, the Labour Court has to go into the correctness of the punishment as well. Section 10(4) of the Industrial Disputes Act, 1947 empowers the Labour Court to go into the matters incidental thereto to the order of reference. Though the appellant sought for terminal benefits from the date of discharge, he is restricting such claim for the period commencing from three years prior to the date of his application seeking for terminal benefits.
5. In support of the above submission, the learned counsel for the appellant relied on the decisions reported in 1979 (1) LLJ 465, The Management of Addison and Co. v. The Presiding Officer, Labour Court; 1983 (1) LLJ 304, M/s.Agra Electric Supply Company Limited v. Workmen; 1978 (2) LLJ 11, Indian Express Newspapers (Bombay) Pvt. Ltd. v. Indian Express Newspapers (Bombay) Employees Union and others; and CDJ 2004 MHC 643, The General Manager, Indian Overseas Bank v. The Presiding Officer.
6. Per contra, Mr.P.M.Subramaniam, learned counsel for the first respondent submitted that when the order of discharge has become final as the appellant did not question the same after the Appellate Authority confirmed the said punishment, the Labour Court exceeded its jurisdiction in setting aside the punishment especially when the reference was only with regard to the issue as to whether the appellant was entitled for terminal benefits or not. Thus, the award of the Labour Court was beyond the scope of reference and therefore, the learned Single Judge has rightly set aside the award by allowing the writ petition.
7. In support of the above submissions, the learned counsel for the first respondent relied on the decision of the Hon'ble Supreme Court reported in (2008) 8 SCC 648, Union of India and Others v. Tarsem Singh.
8. We have considered the rival submissions made by the respective learned counsels and perused the materials placed before this court.
9. The point for consideration in this writ appeal is as to whether the award of the Labour Court in modifying the punishment of discharge, as the one of compulsory retirement, and consequently granting the relief of terminal benefits to the appellant, is justifiable and within the scope of reference or not.
10. Before answering the said issue, certain factual background of the matter needs to be gone into. The appellant was employed as Assistant Shed Master with effect from 08.08.1966 in Chennai Port Trust and after working for nearly 17 years, he was discharged from service by an order dated 20.04.1983 with effect from 19.09.1982 on the ground of unauthorised absence, after holding an exparte enquiry. It is the case of the appellant that such order of discharge was immediately challenged by his wife in the year 1983 itself and the same was pending for more than 19 years without any decision. On the other hand, it is the case of the Management that the appellant preferred an appeal against the order of discharge only on 02.04.1991, after a long gap of 8 years. However, the fact remains that the Appellate Authority rejected the appeal and thereafter, the appellant did not challenge the order of discharge before any Court of law. On the other hand, it is admitted by the Management in the affidavit filed in support of the writ petition that the appellant submitted a representation on 15.03.2002 to the first respondent requesting for reinstatement with full benefits and the said request was not accepted as the appellant, in the mean time, had attained the age of retirement on 30.11.1990 itself, even if he has not been discharged from service. To that effect, an order seems to have been passed on 15.02.2002, stating that the dispute cannot be reopened and re-agitated. It is also stated that the said proceedings was communicated to the appellant vide memo dated 05.06.2002. It is also admitted by the first respondent that the appellant had repeatedly made representations one after another to the Ministry of Shipping, Government of India as well as to the first respondent on 22.07.2002, 07.03.2003, 24.11.2003 and 12.03.2004. Out of those representations, the appellant in fact, sought for retirement benefits in the representations dated 07.03.2003, 24.11.2003 and 12.03.2004 by giving up the request for reinstatement. It is seen that on 07.01.2005, the first respondent rejected such request on the ground that the appellant has not completed an undisputed 17 years of service and as per regulations of the first respondent Port Trust, the appellant was not entitled for terminal benefits and pension. Therefore, the appellant filed a writ petition before this Court in W.P.No.14736 of 2005 seeking direction to the first respondent to disburse the terminal and pensionary benefits.
11. This Court while dismissing the above writ petition on 29.4.2005, gave liberty to the appellant to raise an industrial dispute in respect of his claim for terminal and pensionary benefits. Consequently, the appellant raised an industrial dispute, which has culminated into passing of the award by the Labour Court in I.D.No.25 of 2008, as discussed supra. At this juncture, it is pertinent to note the term of reference made by Ministry of Labour, Government of India through its order dated 15.05.2008 to the Labour Court for its adjudication, which reads as follows:
Whether the demand of Sri M.Amanullah for terminal benefits like pension, gratuity, etc. from the Management of Chennai Port Trust is just and right? If not, to what relief is the workman entitled to?
12. According to the appellant, the above term of reference made to the Labour Court cannot be decided in isolation without going into the correctness or otherwise of the order of punishment and therefore, such exercise by the Labour Court was based on an inbuilt reference made under the order of reference.
13. Per contra, it is the contention of the first respondent Management that the above reference was made only for adjudicating as to whether the appellant is entitled for terminal benefits or not and therefore, the Labour Court cannot exceed its jurisdiction and decide the correctness or otherwise of the punishment, as such exercise is beyond the scope of the order of reference.
14. Based on the above rival contentions of the parties, the learned Single Judge found that the Labour Court cannot go beyond the scope of reference and modify the punishment into one of compulsory retirement as the said exercise was by exceeding its jurisdiction and outside the scope of reference.
15. Let us now consider as to whether the Labour Court had exceeded its jurisdiction in modifying the punishment and granting the relief to the appellant.
16. In this case, the appellant was imposed with a punishment of discharge. No doubt, the appellant has challenged the same belatedly before the Appellate Authority and failed to succeed in the appeal. It is also true that the appellant has not subsequently challenged the punishment before any other forum. However, it is an admitted fact that he was fighting against such punishment before the first respondent as well as the Ministry of Shipping, Government of India, through various representations commencing from 22.07.2002, initially seeking for reinstatement and finally seeking for retirement and pensionary benefits. Last of such representation made on 12.03.2004, was rejected by the Management on 07.01.2005. It is also to be noted at this juncture that immediately the appellant approached this Court and filed a writ petition W.P.No.14736 of 2005 seeking for a direction to the Management for disbursing the terminal and pensionary benefits. It is not in dispute that this Court while dismissing the said writ petition, did not hold that the appellant was not entitled for such benefits and on the other hand, this Court has only directed the appellant to raise an industrial dispute before the Labour Court in respect of such terminal benefits and pension. It appears that the said order has become final and not challenged by the Management. On the other hand, pursuant to the said order, an industrial dispute was raised by the appellant before the Assistant Labour Officer and consequent upon the failure report of the Labour Officer dated 20.02.2008, the Ministry of Labour, Government of India, made an order of reference on 15.05.2008 as referred supra and referred the same to the Tribunal for its adjudication.
17. Thus, from the above stated facts and circumstances, it is evident that the parties before the Labour Court were fully aware as to what are the issues that arose for consideration of the Labour Court which include the question with regard to the correctness or otherwise of the order of punishment. If the contention of the first respondent is to the effect that the discharged appellant is not entitled for the terminal benefits, we fail to understand as to why such reference to the Labour Court was made for adjudication. The Chennai Port Trust has not challenged the reference made by the Ministry. At this juncture, it is useful to refer Section 10 of the Industrial Disputes Act, 1947, which deals with reference of dispute to Boards, Courts or Tribunals by the appropriate Government. Under the said provision, the appropriate Government can refer the dispute to a Labour Court for adjudication if it is of the opinion that an industrial dispute exists and it requires adjudication by the Labour Court. Therefore, it is evident that making of such reference by the appropriate Government, would arise only when the said Government is of the opinion that an industrial dispute exists between the parties. In other words, if an industrial dispute does not exist requiring for adjudication by the Labour Court, there is no necessity for making a reference at all under section 10 of the said Act. Certainly the purpose of making a reference is not for inviting the Labour Court to have a futile exercise. Needless to say that while making such reference, the appropriate Government is presumed to be fully aware of what is the real dispute between the parties which requires an adjudication by the Labour Court. Hence, we are of the considered view that the very reference in this case was made with full knowledge that the Labour Court, while considering the claim of the appellant for terminal benefits and pension, will have to necessarily go into the question of correctness or otherwise of the punishment as well for the purpose of granting or rejecting the terminal benefits. Having made such reference and submitted themselves to the jurisdiction of the Labour Court for adjudication of the said issue, the first respondent is not entitled to question the jurisdiction of the Labour Court in going into the punishment issue. In fact, they are estopped from contending so. As rightly contended by the learned counsel for the appellant, the Labour Court even otherwise is empowered to go into the matters, which are incidental thereto to the order of reference.
18. At this juncture, it is useful to refer to Section 10(4) of the Industrial Disputes Act, 1947, which reads as follows:
10(4) Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be] shall confine its adjudication to those points and matters incidental thereto.
19. In 1979(1) LLJ 465, The Management of Addison and Co. v. The Presiding Officer, Labour Court, the Division Bench of this Court while considering the scope of 10(4) of the above said Act, has observed at paragraph No.10 as follows:
10. Divorced from all these facts, if we are to go merely by the language employed in the annexure from which the reference springs, we will be doing great injustice. As a matter of fact, a reading of the entire award leaves us with the impression that what was fought tooth and nail was the order of transfer from the tools section to the foundry section and concerning that, the workmen wanted a reference. The order of reference is couched clumsily. But that does not mean that the workmen did not agitate for the non-employment. The very Government order in its heading makes pointed reference to non-employment of the workmen. No doubt in G.O.(Rt.) No. 90 dated 10-1-1975 marked as W. No. 15, it was held that the closure of the foundry department was real and final. These two workmen were hardly concerned with that closure because they only wanted reinstatement in the tools section. In the circumstances, we are concerned with how the order of reference should be construed.
Section 10(4) of the Act runs as follows;
Where in an order referring an industrial dispute to a Labour Court, Tribunal or the National Tribunal under this section or in subsequent order, appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal as the case may be, shall confine its adjudication to these points and matters incidental thereto. We are aware that the jurisdiction of a Tribunal springs from the reference, Does it mean that it should be construed in a rigid fashion so as to deny justice to parties or in the alternative does it mean that it should be construed in a broad sense to meet the ends of justice? We should prefer the latter. In fact, this is what their Lordships of the Supreme Court say in Indian Express v. Employees Union 1978-II L.L.J. 11. The order of reference in that case as seen from paragraph 4 was as follows:
Whether the recommendations of the Wage Board for non-journalist employees as accepted by Government by its Resolution No. W.B.-17(7)/67, dated the 18th November, 1967 are unfair or unreasonable and if so, what notifications are required therein to ensure a fair and just wage structure for the non-journalists, having due regard to the paying capacity of the respective newspaper establishments, the employer's agreement and the emoluments of employees engaged in comparable establishments. On this it was held as follows:
Mr. G.P. Pai in his very pursuasive and pointed submission rightly stressed that the Tribunal had only a limited jurisdiction, trammelled by the terms of reference not beyond, and in his view the question of gratuity was outside the reference altogether. Were it so, that part of the award was an exercise in gratuitous futility, being an ultra-jurisdictional generosity. Notwithstanding Sri N. K. Ramamurthy's assertion that this Court shall not go back upon that was throughout understood by all before the Tribunal, we have to find jurisdictional justification in the reference itself, not in the brooding, perhaps blundering, consciousness of litigants. But we agree with Sri Ramamurthy that liberality not pedantry must guide the construction of the languages of the reference (vide 1963 (3) S.C.P. P. 540 at p.555). Once the real controversy is clear, the verbal walls cannot narrow the natural ambit of the subject-matters; especially in an equitable jurisdiction unbound by precedural blinkers and niceties of pleading. Again in paragraph 13 it has been observed as follows:
This longish discussion on gratuity could not have been a fruitless excursion and proves beyond reasonable doubt that the parties on both sides, at the level of pleadings, at the stage of argument "and in the rival processes of contest, desiderated a decision on a gratuity scheme for non-journalists. This bone of contention was included in the terms of reference (item 1). The long submissions by many counsel on behalf, of the employers and employees were not idle debate. The plea for a full scheme of gratuity by the advocate for the workmen under the various other newspaper establishments was not submission in supererogation. There is no hint in the Tribunal proceedings that a scheme of gratuity was outside the pale of the Tribunal. No such objection was over raised. Indeed, a tried Tribunal, confronted by enormous evidence and marathon arguments, would not have painstakingly sifted the grounds, sorted the evidence, cited the rulings and recorded the verdicts without being sure that all parties concerned and he himself understood the reference to include the matters contested before him discussed by him and decided in his award. The gratuity schemes for non-journalist workmen was one such and it is bafflement to accept the submission that the learned Tribunal, a retired Judge of the High Court had ventured into an irrelevant terrain.
Similar is the ration in Express Newspapers v. Their Workers and Staff, (1962-II L.L.J. 227). On a reading of the above decisions, it is clear that no reference should be read in a pedantic manner. Construed in this fashion, we find that no injustice has been done to the parties to the dispute and this is how they understood and went about the case. No doubt as laid down in Delhi Cloth and General Mills Co. v. Their Workers, (1967-I L.LJ. 423), dispute is the main thing and what is incidental as spoken to in Section 10(4) of the Act is an adjunct to the dispute. Applying the name ration, in this case, the dispute was the non-employment in the tools section which non-employment was the results of their transfer to the foundry section. We are unable to agree with the contention of the management that the Labour Court has gone astray in this case. We are also not inclined to accept the argument on behalf of the management that because the Government had not made a pointed reference relating to their non-employment in the tools section, the Tribunal cannot go into that question. What the Labour Court has done is pure social justice which alone should prevail because industrial law aims at such social justice from every point of view.
20. In 1983(1) LLJ 304, M/s.Agra Electric Supply Co. Ltd v. Workmen, the Hon'ble Supreme Court has observed that when the reference is comprehensive enough to cover both the issue to find out as to whether the action is legal and justified, it is within the jurisdiction of the Tribunal to investigate into the question whether the retirement is legal and if legal, whether it is also justified. The relevant portion of paragraph No.2 reads as follows:
It is plain that industrial jurisprudence is an alloy of law and social justice and one cannot be too pedantic in construing the terms of a reference respecting a dispute for industrial adjudication. Liberally viewed, we are left with the impression that the Tribunal's construction of the terms of reference is correct. The question referred may be dichotomised. Was the retirement of the workmen legal and justified? If not, what compensation was payable to them? The first limb of the reference contains the pregnant impression justified. It is one thing to say, speaking in terms of industrial jurisprudence that an action is legal. It is another thing to say that it is justified. When the reference is comprehensive enough to cover both these concepts, it is within the jurisdiction of the Tribunal to investigate into whether the retirement is legal and, if legal, whether it is also justified. In the ordinary law of contract, when a thing done is legal there is an end of the matter but in industrial law the rigid rules of contract do not govern the situation and an amount of flexibility in the exercise of powers taking liberties with the strict rights of parties is permitted to Tribunals.
21. In 1978(2) LLJ 11, Indian Express Newspapers (Bombay) Pvt. Ltd. v. Indian Express Newspapers (Bombay) Employees Union and others, the Hon'ble Supreme Court at paragraph No.5 has observed as follows:
5.Mr. G.P. Pai in his very pursuasive and pointed submission rightly stressed that the Tribunal had only a limited jurisdiction, trammelled by the terms of reference-not beyond, and in his view the question of gratuity was outside the reference altogether. Were it so, that part of the award was an exercise in gratuitous futility, being an ultra-jurisdictional generosity. Notwithstanding Sri N. K. Ramamurthy's assertion that this Court shall not go back upon what was throughout understood by all before the Tribunal, we have to find jurisdictional justification in the reference itself, not in the brooding, perhaps blundering, consciousness of litigants. But we agree with Sri Ramamurthy that liberality, not pedantry must guide the construction of the languages of the reference (vide 1963 (3) S.C.P. P. 540 at p.555). Once the real controversy is clear, the verbal walls cannot narrow the natural ambit of the subject-matters; especially in an equitable jurisdiction unbound by precedural blinkers and niceties of pleading.
22. In CDJ 2004 MHC 643, The General Manager, Indian Overseas Bank v. The Presiding Officer, the Division Bench of this Court while considering the power of the Tribunal in adjudicating a dispute strictly in terms of a reference, has observed that a reference is primarily cause for adjudication by the Labour Court and that does not mean that the Labour Court is disentitled from looking into the pleadings and to find out the real dispute for adjudication. Paragraph No.26 of the said decision is extracted hereunder:
26. Coming to the question as to whether the power of the tribunal in adjudicating a dispute. Strictly in terms of reference, Courts have held that a reference is primarily a cause for adjudication by the Labour Court or tribunal, as the case may be, and that does not mean the Labour Court or Tribunal is disentitled from looking into the pleadings and to find out the real dispute for adjudication. This power of the Tribunal is based on the principles to render substantial justice to the parties coming to the court for adjudication. It is relevant to refer to the Division Bench judgment of Patna High Court in Minimax v. its Workmen, reported in 1968(1) LLJ 369, as to the power of the Tribunal in adjudication. The relevant portion reads thus:-
It is significant to note that the point in issue, with which we are concerned in this case, has been referred in more or less identical terms as recommended by the Assistant Labour Commissioner, Jamshedpur. Therefore, the finding of the tribunal as to what was really the dispute and the demand of the workmen is not only supported by the pleadings before the tribunal, but also by the report on which basis the reference in question has been made. Sri Lal Narayan Sinha also has not challenged the correctness of the finding of the tribunal as to what was really in dispute between the parties. What he has challenged is the jurisdiction of the tribunal to construe the reference so as to bring out the real dispute for its decision. That the Tribunal not only has such power but a duty is cast on it to find out what was the real dispute which was referred to it and to decide it and not to throw it out on mere technicality, finds ample support from the following observations of their Lordships of the Supreme Court in the case of State of Madras v. C.P.Sarathy and another (1953(1) LLJ 174).
The scope of adjudication by a tribunal under the Act is much wider, as pointed out in Western India Automobile Association v. Industrial Tribunal, Bombay, (1949 LLJ 245) and it would involve no hardship if the reference also is made in wider terms provided, of course, the dispute is one of the kind described in S.2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of the Government are indicated either individually or collectively with reasonable clearness. The rules framed under the Act provide for the tribunal calling for statements of their respective cases from the parties and the disputes would thus get crystalized before the tribunal proceeds to make its award. On the other hand, it is significant that there is no procedure provided in the Act or in the rules for the Government ascertaining the particulars of the disputes from the parties before referring them to a tribunal under S.10(1).
23. From the above cited case laws, it is very clear that the Labour Court in order to render substantial justice, is empowered to adjudicate the real dispute between the parties, when the order of reference is capable of interpreting to the effect that the Labour Court can go into the incidental issue also. If no such power is vested on the Labour Court, making of such reference would be meaningless and purposeless. If the main issue is of such nature that it cannot be decided without going into the incidental issue, it is always permissible to go into such incidental issue as well and give a finding thereon before deciding the main issue. Such exercise cannot be said as without jurisdiction.
24. Learned counsel for the first respondent relied on the decision of the Hon'ble Supreme Court reported in 2008(8) SCC 648 (cited supra) to contend that the delay and laches on the part of the appellant will not entitle him to the relief. But in the very same decision, the Hon'ble Supreme Court has observed at paragraph No.7 that where a service related claim is based on continuing wrong, relief can be granted even if there is long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Paragraph No.7 of the above decision is extracted hereunder:
7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted inspite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
25. In this case, the denial of terminal benefits, is the continuing wrong and therefore, it creates a continuing source of injury entitling the appellant to approach the court seeking the remedy even after a long delay. Therefore, we are of the view that the above decision is not helping the first respondent in any manner.
26. Next, we will have to consider the question as to whether the Labour Court was justified in modifying the punishment of discharge into one of compulsory retirement.
27. We have carefully gone through the award and the findings of the Labour Court. In order to appreciate the finding of the Labour Court, it is better to read the following extracted portion from paragraph No.17 of the award:
17...All these are materials supporting a view, if taken, to hold that petitioner together with his wife or either of them may not have been in a conducive or ideal situation to protect themselves during certain durations compelling one of them to act for the other during contingencies not unfolded, for reasons best know to them. It is not known whether they were entangled in any intricate problems in life or health so as to be unable to do what is usually or normally expected of them as ordinary pursuits in their personal or domestic life and the official life of the petitioner. There are indications as to something negative in relation to the mental health of petitioner as well on records. Law has to be alive to the social problems. The background circumstances in which a crime or misconduct is committed should receive the attention in the matter of dispensation of justice, say social justice...................................So viewed, while the enquiry held exparte and the finding of guilty of misconduct for habitual absenteeism are to be kept intact, yet the punishment imposed on the petitioner needs to be interfered with as being shockingly disproportionate to the gravity of misconduct. The punishment of dischargebeing one capital in nature tends to put the petitioner in economic death and the same is too harsh upon him and his family. U/s 11A of the ID Act, the power of Tribunal extends to interfere with the punishment in appropriate cases when the impugned one is shockingly disproportionate to the gravity of the misconduct, the same which power as held or clarified by the Supreme Court is available for any other valid or good reasons too. This approach of the Tribunal would, in appropriate cases, be harmonizing to reconcile between the Laws in the Booksand the laws in reality. To quote, Anachar Sis, a learned author: written laws are like spider webs; they well catch, it is true the weak and poor, but would be torn in pieces by the rich and the powerful. The Management could have imposed some punishment under which he could have received his terminal benefits to which he is actually entitled. Though petitioner has no such contentions in his claim statement and his only case is that the order of discharge is purely exparte, the said term has to be read as speaking in volumes to comprise everything including the challenge against his discharge, as a capital punishment shockingly disproportionate to the gravity of the misconduct as discussed by me above. Therefore, his claim is to be read as one challenging his very discharge as invalid and seeking to be set aside without which there cannot be foundation for him to make his claims for terminal benefits like pension, gratuity, etc.,
28. A careful perusal of the above observations and findings rendered by the Labour Court would certainly drive this Court to come to an irresistible conclusion and record a word of appreciation as the learned Judge of the Labour Court has passed a well considered order, more particularly, by keeping in mind that the social justice is the ultimate goal to be achieved especially, when the poor and downtrodden knock the door of the Court craving for justice based on a beneficial legislation such as labour laws, etc.,. The Courts should see that the beneficial laws made for the workers should reach and rescue them wherever it is found that injustice is done to them. Only then it can be said that the Law is with life.
29. It is well settled that the technicalities should not stand in the way of rendering substantial justice. If both are pitted against each other, the Courts will always prefer the latter by brushing aside the former. The Hon'ble Supreme Court in a decision reported in (2013) 4 SCC 97, Laxmi Bai (Dead) Through L.Rs. v. Bhagwantbuva (Dead) Through L.Rs., has categorically observed that the Court may in larger interest of administration of justice can excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice. Paragraph No.49 of the said decision reads as follows:
"....When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best."
30. Likewise in another decision reported in 2013(4) SCC 186, \nion of India and Others v. Ex-Gnr Ajeet Singh, the Hon'ble Supreme Court held at paragraph No.24 as follows:
"24. The expression "failure of justice"would appear, sometimes, as an etymological chameleon. The court has to examine whether there is really a failure of justice or whether it is only a camouflage. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. Even the law bends before justice. The order of the court should not be prejudicial to anyone. Justice means justice between both the parties. The interests of justice equally demand that the "guilty should be punished"and that technicalities and irregularities, which do not occasion the "failure of justice"are not allowed to defeat the ends of justice. They cannot be perverted to achieve the very opposite end as this would be counterproductive. "Courts exist to dispense justice, not to dispense with justice. And, the justice to be dispensed, is not palm-tree justice or idiosyncratic justice". Law is not an escape route for law-breakers. If this is allowed, this may lead to greater injustice than upholding the rule of law. The guilty man, therefore, should be punished and in case substantial justice has been done, it should not be defeated when pitted against technicalities."
31. The appellant herein was taking treatment for Anxiety Neurosis and mental depression from August, 1982, which is certified by the Doctor at Government Hospital, Madras. The appellant's plea before the Chennai Port Trust was that his absence was not willful, but due to health reasons, and the punishment imposed was disproportionate. The said stand was taken in his representation dated 15.3.2002 by enclosing medical certificates. In the 2A petition filed before the Assistant Commissioner of Labour dated 6.10.2005, the appellant prayed for lenient punishment considering his illness, due to which he absented from duty. The first respondent also defended the order of discharge and stated that the appellant deserves no leniency as he was proceeded on previous occasion for unauthorised absence. The appellant applied for leave for three months initially and for one year later on, due to his wife's illness (Psychosis).
32. Considering the fact that the Labour Court has rendered the finding by overall analysis of the factual aspects of the matter, we are of the firm view that the Labour Court has rightly found the punishment imposed on the appellant as shockingly disproportionate to the charge levelled against him and therefore, by exercising the power conferred under section 11(A) of the Industrial Disputes Act, 1947 the Labour Court has rightly modified the punishment of discharge into one of compulsory retirement. We find that such exercise done by the Labour Court was well within the ambit, scope and power conferred on the Tribunal under Section 11(A) of the Industrial Disputes Act, 1947.
33. It is a well settled proposition of law that extreme punishment of discharge/dismissal can be imposed for unauthorised absence only if the absence was willful and habitual. In (2009) 15 SCC 620 (Chairman-cum-Managing Director, Coal India Limited and Another v. Mukul Kumar Choudhuri and others) in paragraph 21 the Honourable Supreme Court held thus, "21. ......... where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher Authority or violate any of the Company's Rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the Order of Removal cannot be held to be justified, since in our Judgment, no reasonable Employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
In the decision reported in (2012) 3 SCC 178 (Krushnakant Parmar v. Union of India) in paragraph 18 the Supreme Court held thus, "18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the Disciplinary Authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct."
In the case reported in 2014 (3) LLN 11 (SC) (Chhel Singh v. M.G.B.Gramin Bank, Pali), a Clerk-cum-Cashier of M.G.B.Gramin Bank, Pali, was removed from service on the charge of unauthorised absence. The learned single Judge of the Rajasthan High Court (Jodhpur Bench) set aside the order of removal and ordered reinstatement with consequential benefits. The said order was set aside by the Division Bench of Rajasthan High Court (Jodhpur Bench). The Hon'ble Supreme Court in paragraph 15 of the judgment held thus, "15. ................ There was no allegation that the Appellant's unauthorised absence from duty was willful and deliberate. The Inquiry Officer has also not held that Appellant's absence from duty was willful and deliberate. ........."
The Hon'ble Supreme Court set aside the order of the Division Bench and restored the order of the learned Single Judge of Rajasthan High Court (Jodhpur Bench).
34. On the facts of this case, namely the appellant applied for leave due to illness of his wife, he could not participate in the enquiry as he was suffering from mental illness; enquiry was held exparte; discharge order was passed based on the enquiry report; appeal was filed by the appellant's wife as the appellant was suffering with mental disorder. Appellant also produced medical certificates to prove the treatment taken for mental illness. Thus, the order of the Labour Court in interfering with the punishment and modifying to that of compulsory retirement is just and proper. Hence we hold that the learned Single Judge was not right in setting aside the award of the Labour Court dated 17.1.2011. Accordingly, we find that the appellant is entitled to succeed in this writ appeal.
35. While coming to the quantum of benefits, though the Labour Court has passed an award by directing the Management to pay the terminal benefits from the date of discharge treating the same as compulsory retirement, taking into consideration the facts that the appellant has approached the Labour Court belatedly, and considering the fact that the appellant has also filed an affidavit dated 14.08.2014 before this Court agreeing to receive the terminal benefits including pension for the period beginning from three years prior to the dismissal of W.P.No.14736 of 2005 on 29.4.2005, we find that the appellant is entitled to terminal benefits including pension only with effect from 29.04.2002.
36. In fine, this writ appeal is allowed and the order of the learned Single Judge dated 23.11.2012 is set aside and the award of the Central Government Industrial Tribunal-cum-Labour Court dated 17.1.2011 is restored, with a modification that the first respondent Management shall calculate and pay the terminal benefits treating the appellant as compulsorily retired with effect from 20.4.1983 (the date of discharge), and also pay the arrears of pension from 29.04.2002 onwards, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Connected miscellaneous petition is closed.
Index :Yes (N.P.V.,J) (K.R.C.B,.J) Internet :Yes 5.9.2014
Vri/vr
To
1. The Chairman, Chennai Port Trust, Rajaji Salai,
Chennai - 600 001.
2. The Presiding Officer,
Central Government Industrial Tribunal cum Labour Court,
Sastri Bhavan, Haddows Road, Nungambakkam,
Chennai 600 034.
N.PAUL VASANTHAKUMAR,J.
AND
K.RAVICHANDRABAABU,J.
Vri
Pre-Delivery Judgment
in W.A.No.560 of 2013
Dated:- 5 .09.2014