Gujarat High Court
Indian vs Subhash on 14 June, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
C/SCA/6892/2011
ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No 6892 of 2011
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1Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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INDIAN
PHARMA COPS & CHEMICALS PVT LTD....Petitioner(s)
Versus
SUBHASH
R SHAH & 2....Respondent(s)
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Appearance:
MR
NK MAJMUDAR as ADVOCATE for the Petitioner(s) No. 1
MS
HINA DESAI FOR RESPONDENTS
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CORAM:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 14/06/2011
ORAL
ORDER
1. Heard learned advocate Mr.N.K.Majmudar for petitioner Company and learned advocate Ms.Hina Desai appearing on behalf of respondents workmen on caveat.
2. In present petition, petitioner has challenged order passed by Industrial Tribunal, Baroda in Misc. Application (IT) No.6 of 2009, dated 18.3.2011, whereby Industrial Tribunal, Baroda has rejected Misc. Application filed by petitioner under Rule 26A of Industrial Disputes (Gujarat) Rules,1966 and also confirmed award passed by Industrial Tribunal, Baroda in Complaint (IT) No.17 of 1989. The Industrial Tribunal, Baroda has also imposed cost individually Rs.5000/- each in favour of respondents workmen.
3. The present respondents workmen have filed Complaint (IT) No.17 of 1989 under Section 33A of Industrial Disputes Act,1947 in pending Reference (Demand) No.3 of 1987 before Industrial Tribunal, Baroda on 17.6.1989. Against aforesaid complaint, petitioner company had filed reply on 6.7.1989. Thereafter, Industrial Tribunal, Baroda has decided aforesaid complaint in absence of petitioner. The service of respondents were terminated by letter dated13.6.1986 during pendency of aforesaid reference No.3 of 1987 without obtaining prior permission or approval under Section 33(1)(b) / 33(3)(b) or 33(2)(b) of I.D.Act,1947. The reply which was submitted by petitioner vide Exh.10 before Industrial Tribunal, Baroda. Before Industrial Tribunal, Baroda, one Shri S.R.Shah has filed affidavit as a complainant and also produced list of protected workmen vide Exh.15 and certain documents have also been produced by complainant before Industrial Tribunal, Baroda. Vide Exh.17 petitioner company has also produced resolutions and certain correspondences between parties. On behalf of petitioner company, matter was argued before Industrial Tribunal, Baroda and after completion of arguments made by company on 3.4.1992, a list of documents have been produced on record. Initially, company has filed written arguments in respect to preliminary point raised by company on the ground that complainants are not workmen within meaning of Section 2(s) of I.D.Act,1947 and they are also not protected workmen. Therefore, question of prior permission or approval does not require to be obtained by company. On behalf of petitioner company, no one was examined before Industrial Tribunal, Baroda in complaint. One Advocate Mr.K.D.Shah, who was engaged by company has retired from proceedings and one Advocate Mr.K.M.Shah was also engaged by company, has also retired from proceedings. After receiving retirement pursis from both advocates, the Industrial Tribunal, Baroda had issued notice on 22.1.1999 intimating to company to engage another advocate. This intimation has been received by company, even though on behalf of company, no one remained present before Industrial Tribunal, Baroda in complaint filed by respondents and number of adjournments have been given, in spite of this fact, no one remained present to appear before Industrial Tribunal, Baroda on behalf of petitioner company. Ultimately, on 26.3.1999, on behalf of respondents, Mr.M.S.Mansuri learned advocate made his submissions (arguments) which have been considered by Industrial Tribunal, Baroda and against the submissions made by Mr.Mansuri, on behalf of petitioner company, no one remained present to make submissions before Industrial Tribunal, Baroda. Therefore, ultimately, Industrial Tribunal, Baroda has passed ex-parte award against petitioner company. The Industrial Tribunal, Baroda has considered evidence of workmen and documents which have been produced by both parties and after considering submissions made by learned advocate Mr.Mansuri and in absence of petitioner company, Industrial Tribunal, Baroda has come to conclusion that Reference (IT) No.3 of 1987, a demand (dispute) raised by Union has been pending at the time when services of respondents workmen were terminated. Vide Exh.15 along with list, certain documents have been produced wherein list of protected workmen also produced on record wherein complainants present respondents have been declared as protected workmen. Against that documents / facts, no rebuttal evidence was produced by petitioner company before Industrial Tribunal, Baroda. Therefore, that fact has been accepted and believed by Industrial Tribunal, Baroda in favour of respondents workmen.
4. The contention raised by petitioner company that respondents are not workmen covered by definition under Section 2(s) of I.D.Act,1947. That fact has also not been proved by petitioner company by leading proper evidence before Industrial Tribunal, Baroda. On behalf of respondents workmen, Shri S.R.Shah was examined. Against his evidence, no oral evidence led by petitioner company before Industrial Tribunal, Baroda and contention raised by petitioner company has not been proved by petitioner company before Industrial Tribunal, Baroda by leading proper evidence. Therefore, Industrial Tribunal, Baroda has come to conclusion that at the time when services of respondents workmen were terminated on 13.6.1989, at that occasion respondents workmen were declared as protected workmen as per Exh.15 and for that, prior express permission is necessary to be obtained from Industrial Tribunal, Baroda by petitioner company, as required under Section 33(3) of I.D.Act,1947 which has not been obtained by petitioner company. Not only that even no approval application was filed by petitioner company under Section 33(2)(b) of I.D.Act,1947. Therefore, on both counts, Industrial Tribunal, Baroda has decided complaint and come to conclusion that order of termination of respondents workmen dated 13.6.1989 held to be illegal and required to be set aside. Accordingly, same has been set aside with a direction to petitioner company to reinstate all respondents workmen in service with full back wages of interim period. This ex-parte award was passed by Industrial Tribunal, Baroda on 28.2.2000.
5. It is necessary to note that one SCA No.5713/2009 filed by petitioner before this Court challenging ex-parte award passed by Industrial Tribunal, Baroda dated 28.2.2000, which came to be withdrawn by advocate of petitioner in presence of petitioner upon instructions of the client. Thereafter, one application has been made by petitioner company under Rule 26A of Industrial Disputes (Gujarat) Rules, 1966 for quashing and setting aside ex-parte award dated 28.2.2000 passed by Industrial Tribunal, Baroda. This application was preferred on 4.12.2009 which has been decided by Industrial Tribunal, Baroda on 18.3.2011. The Industrial Tribunal, Baroda has rejected such application and confirmed ex-parte award passed by Industrial Tribunal, Baroda in Complaint (IT) No.17 of 1989.
6. Learned advocate Mr.Majmudar for petitioner company submitted that premises of the company has been closed and advocates those who have been engaged were retired from proceedings without any intimation to petitioner company and no intimation has been received by petitioner company from Industrial Tribunal, Baroda and even also from advocates concerned, those who have been engaged by petitioner company. Therefore, in view of these facts, petitioner company was not aware about the award passed by Industrial Tribunal, Baroda dated 28.2.2000. Therefore, there was a delay in filing such application under Rule 26A before Industrial Tribunal, Baroda.
6.1 He also submitted that one opportunity may be given to petitioner company so they may put up their case before Industrial Tribunal, Baroda. He also raised contention before this Court that respondents are not workmen receiving salary more than Rs.1600/- and also performing managerial function and petitioner company received intimation in February,2009 which has been issued in recovery application made by respondents, at that occasion only petitioner company having the information that ex-parte award passed by Industrial Tribunal, Baroda against petitioner company. Therefore, delay which has been occurred due to sufficient cause which can be considered to be beyond control of petitioner company and therefore, Industrial Tribunal, Baroda has committed gross error in rejecting such application preferred by petitioner company. He also submitted that ICICI Bank in the year 1997 has put up seal upon company with consent of Bombay High Court and thereafter, in 2004, the possession was given back to petitioner company. Therefore, learned advocate Mr.Majmudar submitted that some opportunity may be given to petitioner company so they may put up their case before Industrial Tribunal, Baroda.
7. Learned advocate Ms.Hina Desai appearing on behalf of respondents on caveat submitted that after ex-parte award passed by Industrial Tribunal, Baroda on 28.2.2000, Exh.53, a legal notice dated 1.2.2001 had been served to Ms.Rajniben Bhagat, Managing Director of petitioner company by respondents workmen and that Regd.A.D. Notice was received by said Ms.Rajniben Bhagat and original receipt bears her signature, which is also produced on record. Therefore, she submitted that Ms.Rajniben Bhagat, Managing Director having knowledge of ex-parte award passed by Industrial Tribunal, Baroda on 1.2.2001, even though upto 9 years' period no application has been preferred by petitioner company for setting aside ex-parte award passed by Industrial Tribunal, Baroda on 28.2.2000. Therefore, no reason has been given as to why this delay has been occurred. For that, no oral evidence led by petitioner company before Industrial Tribunal, Baroda and that cannot consider to be a sufficient cause for condoning delay of these many years and service of workmen were terminated on 13.6.1989 and after these many years, without justification, ex-parte award cannot be set aside and that has been rightly rejected application submitted by petitioner company before Industrial Tribunal, Baroda. For that, she submitted that Industrial Tribunal, Baroda has not committed any error in rejecting such application which requires interference while exercising powers under Article 227 of the Constitution of India.
8. I have considered submissions made by both learned advocates appearing on behalf of respective parties and also perused ex-parte award in question as well as order passed in Misc. Application No.6/2009 dated 18.3.2011 by Industrial Tribunal, Baroda.
9. The facts are not much in dispute between parties. At the time when services of workmen were terminated on 13.6.1989, an industrial dispute being general demand Reference (IT) No.3 of 1987 was pending before Industrial Tribunal, Baroda. According to workmen, they are concerned workmen and also protected workmen declared by authority. Therefore, during pendency of such dispute, if service was terminated by petitioner company, then prior permission under Section 33(3) or approval under Section 33(2)(b) of I.D.Act is required to be obtained by employer which has not been admittedly obtained by petitioner company. Therefore, complaint was filed under Section 33A by respondent workmen on 17.6.1989, against which reply has been submitted by petitioner company before Industrial Tribunal, Baroda vide Exh.10. But subsequently two advocates, those who have been engaged by petitioner company, had retired from proceedings. The notice has been issued by Industrial Tribunal, Baroda to petitioner company and advocate has been engaged by petitioner company and written statement also filed by company vide Exh.10 and thereafter, written submissions were also made before Industrial Tribunal, Baroda by petitioner company in respect to preliminary point raised by petitioner company and on 22.1.1999, advocate of petitioner company Shri K.V.Shah has retired from proceedings. On 26.3.1999, after completion of arguments, the matter remained pending before Industrial Tribunal, Baroda about 12 months and thereafter, Industrial Tribunal, Baroda has passed an ex-parte award on 28.2.2000. Meanwhile, recovery application was preferred by workmen being No.91 to 93 of 2006 and notice of which has been issued by Labour Court to the address of Managing Director and that notice has also been served to Managing Director of petitioner company. After receiving aforesaid notice in recovery application, an application under Rule 26A for setting aside ex-parte award has been filed by petitioner company on 4.12.2009. Therefore, there is a delay of 3400 days in filing such application by petitioner company. The Industrial Tribunal, Baroda has considered submissions made by both parties and also considered original record as discussed in Para.5 of present order. Before Industrial Tribunal, Baroda in Misc. Application No.6/2009, petitioner company has produced certain documents vide Exh.3 wherein Exh.3/1 is a copy of complaint No.17/1989 Exh.3/3 a complaint under Section 33A filed by respondents and Exh.3/4 a reply submitted by company and Exh.3/5 ex-parte award passed by Industrial Tribunal, Baroda and Exh.3/6 notice served to petitioner company in respect to recovery application No.92/2006 and Exh.3/7, an order passed by this Court. Except that, no other documents have been produced by petitioner company Industrial Tribunal, Baroda in Misc. Application filed by company.
10. According to case of petitioner company, after having consent from Bombay High Court in the year 1997, ICICI Bank has put up seal upon company. Thereafter, that seal has been opened or removed in the year 2004 and delivered possession back to the company. Except aforesaid documents produced by company, no other documents have been produced by company. No oral evidence led by petitioner company to justify delay of more than 9 years in filing such application before Industrial Tribunal, Baroda. The Industrial Tribunal, Baroda has also considered original file of complaint dated 17.6.1989 and also considered reply submitted by petitioner company vide Exh.10 and vide Exh.31 evidence of complainant was closed. Thereafter, learned advocate Shri K.V.Shah appeared on behalf of petitioner before Industrial Tribunal, Baroda and also raised preliminary point before Industrial Tribunal, Baroda which was heard by Industrial Tribunal, Baroda and thereafter, number of adjournments have been obtained by petitioner company's advocate before Industrial Tribunal, Baroda. Vide Exh.52 advocate of company has retired from proceedings and thereafter, vide Exh.53, ex-parte award was passed on 28.2.2000.
11. The case was put up for award on 5.3.1999. Thereafter, one year's period was taken by Industrial Tribunal, Baroda for passing ex-parte award. Meanwhile, on behalf of petitioner company, no one remained present before Industrial Tribunal, Baroda and no application has been made by petitioner company before Industrial Tribunal, Baroda. Therefore, initially, on behalf of petitioner company, two advocates have been engaged which have been subsequently retired. Thereafter, no one has taken care to remain present before Industrial Tribunal, Baroda and therefore, Industrial Tribunal, Baroda has passed an ex-parte award on 28.2.2000 vide Exh.53. After ex-parte award passed by Industrial Tribunal, Baroda in Complaint (IT) No.17/1989, an intimation (notice) has been issued by workmen on 1.2.2001 to Managing Director of petitioner company, informing that Industrial Tribunal, Baroda has passed an ex-parte award in Complaint (IT) No.17/1989. For that, registered notice was served to Managing Director and that notice was received by Managing Director and original record has been produced by respondents workmen before Industrial Tribunal, Baroda which bears signature of Ms.Rajniben Bhagat, Managing Director. Therefore, Industrial Tribunal, Baroda has come to conclusion that having knowledge of ex-parte award passed by Industrial Tribunal, Baroda w.e.f. 1.2.2001, even though upto period of 2009, no such application has been made by petitioner company under Rule 26A before Industrial Tribunal, Baroda. For that, no reason or sufficient cause has been shown to justify such delay by petitioner company. Even petitioner company has not filed separate application for condonation of delay along with 26A application. Therefore, Industrial Tribunal, Baroda has come to conclusion that there is no sufficient cause has been shown by petitioner company about delay of 8 to 9 years in filing such application under Rule 26A and also considered decision of this Court in case of Dhirajlal Madhavlal Bharati v. Shri R.S.Shukla, Presiding Officer, First Labour Court, Ahmedabad & Others, reported in 1981 GLH 89. Relevant discussion of aforesaid decision are in Para.2 to 4 which are quoted as under :
(2)The petitioner is an employee who was discharged from service and was made to maintain himself on subsistence allowance for seven years from 1964 to 1971. Ultimately the order was held to be void by the competent authority and he was directed to be reinstated Having suffered so much he made an application to the Corporation for leave benefits upon his reinstatement. Again the Municipal Corporation did not accede to the request and the employee concerned was driven to make a recovery application under section 33C(2) of the Industrial Disputes Act being Recovery Application No. 1209/79. When that application came up for hearing, the Municipal Corporation refused to file a written statement even though it was directed to do so and sufficient time was given to do so. Thereafter the matter came to be adjourned on "eight" occasions. No one on behalf of the Municipal Corporation remained present "even once." Ultimately the matter came up for hearing on May 6, 1980. On that day also none of the officers of the Municipal Corporation considered it their duty to remain present. These are facts which are not in dispute for they are culled out from the order passed by the Labour Court as per annexure "D". For the sake of preciseness and for the sake of record as also in order to illustrate in what fashion the officers of the Municipal Corporation have conducted themselves in these proceedings, we deem it proper to quote the relevant passages from the judgment and order of the Labour Court as per Annexure "D" :-
3.
"The application was filed by the applicant on 31st August 1979 and thereafter usual notices were issued to the opponents, which were served upon on them, in view that the opponents were directed to file written statement before the Court within the prescribed period. It appears from the Rojnama of the case that the opponents were directed to file written statement on or before 3"0th October 1979, but no written statement was filed on the said. Thereafter the application came up before me for hearing on 2nd January 1980. On this date also the opponents were absent and not only that they did not file any written statement before the Court. Still however, sufficient opportunity was given to the opponents Nos. 1 and 2 to appear before the Court & to contest the application, but they did not do so. The Recovery Application thereafter was adjourned on 22nd January 1980, 13th February 1980, 28th March 1980 and 15th April 1980, but throughout all these dates the opponents remained absent without any just and reasonable ground. Neither the opponents no. 1 and 2, nor their Labour Officer Shri G. M. Shah cared to appear before the Court. Thus, none appeared on behalf of the opponent till the date of final disposal of this application.
4. At last therefore, the application came up before me for final disposal on 6th May 1980. The applicant was present The opponents no. 1 and 2 as well as the Labour Officer Shri G. M. Shah were called out, but all of them were absent. On behalf of the opponents, nobody has filed any application for adjournment giving sound reasons to remain absent as aforesaid. The application therefore proceeded ex-parte-"
In the face of such gross negligence which in the facts and circumstances of the case amounts to gross and culpable negligence, as also harassment of the petitioner, the Labour Court made an altogether inexplicable approach when an application for setting aside the order was made on behalf of the Municipal Corporation of Ahmedabad as per Annexure "E-1". All that was said in the aforesaid two passages was conveniently overlooked. The fact that the petitioner had to remain present on eight occasions and had to go back without the matter being heard notwithstanding the fact that no one of the numerous officers of the Municipal Corporation cared to remain present even once was also inexplicably overlooked. What was taken into consideration (is it not amazing?) was a bold statement made by one G. M. Shah, holding the office of Labour Officer in the Municipal Corporation, to the effect that the file relating to the application was misplaced in the Central Office of the applicant Corporation. The relevant passage from the order of the Labour Court at Annexure "G" dated December 15, 1980 which is under challenge may again be Quoted in extenso for the sake of preciseness:-
"It has been clearly stated by the Labour Officer Shri G. M. Shah in his affidavit that while working as a Labour Officer in the applicant corporation he is fully conversant with the proceedings and original recovery application No. 1209/79 filed by the opponent workmen-was declared by him in his affidavit that the entire case file of the said recovery application was misplaced in the Central Office of the applicant corporation. That the said file was containing all papers and relevant document pertaining to the present recovery application filed by the opponent workman. Shri Shah further says that the relevant file was misplaced which could not be traced out till the disposal of original recovery application. Shri Shah further affirms that the said file has been traced out on or about 4-6-80 only after the order of the Labour Court in Recovery Application No. 1209/79 was received by the applicant corporation."
The bold statement that the file was misplaced (anyone can make it with impunity) was accepted as gospel truth- Much more indulgence was shown when G. M. Shah tried to explain his absence on the last date on which the application was heard and disposed of I-e. on May 6,1980. Mr., G. M. Shah was good enough to declare that he had gone to the Corporation at about 11-00 O'clock but thereafter he received a message of sudden ill-health of one of his close relative-Again the passage from the order of the Labour Court may be quoted :-
"He further says that thereafter on 6-5-80 he was required to attend the hearing of the original recovery application but after coming to the Corporation at about 11-00 O'clock on the said day he had received a message of sudden ill-health of one of his close relatives. Mr. Shah then says that it was badly necessary for him to attend the sickness of his relative by going at the hospital.' It will be seen that Mr. G. M. Shah does not say who was the close relative. He does not say what was the ill-health-Was it the third cousin of Mr. Shah and was it a mere headache ? We do not know. This statement was also gulped down at its face value. The matter does not end there. Mr. G. M Shah stated that thereafter his mental condition was so disturbed that he could not send any person to appear before the Court. Could he not telephone to the Department ? Could he not inform any of his colleagues to attend the Court ? Even this aspect somehow has been indulgently overlooked by the Labour Court- What is more, he did nothing from May 6, 1980 to May 20, 1980 in order to find out what had happened in respect of the case pending in the Labour Court which was fixed for hearing on May 6,1980 (in which matter on eight occasions no body had remained present and on the date of hearing itself nobody had remained present). If this can be considered as sufficient ground, the expression "sufficient ground" must be emptied of all meaning and content and it must be held that whatever flimsy excuse or pretext was put forward by the Municipal Corporation, the Labour Court was bound to accept it ignoring the fact that with the vast organisation at its command, and the army of officials at its disposal, it never cared to arrange for someone to remain present. in the Court even for the sake of duty let alone for the sake of courtesy to the Court. We are constrained to say that the impugned order setting aside the ex-parte award passed in favour of an employee who was harassed to this extent can be characterised as nothing but perverse. And we use the expression "perverse" because at the moment we are unable to think of a stronger expression. Ordinarily in matters of setting aside ex-parte orders or condoning delay the Courts would take liberal view in order to ensure that substantial justice is done. The present is a case where notwithstanding the fact that there was gross and culpable negligence and callousness, and no cause, much less a sufficient cause is shown, and that the officers of the Municipal Corporation had always remained absent and had conducted themselves in) a manner which amounted to harassment of the petitioner (to tire him out? ), the ex-parte award has been set aside. The impugned order has been set aside not in order to "promote justice" but in order to "promote injustice". This, in our opinion, can never be done. In view of the peculiar fact-situation, we are constrained to interfere even in exercise of powers under article 227 of the Constitution in a matter like this and to allow the petition. This decision, we wish to emphasize lest we are misunderstood, must be interpreted in the peculiar & strange fact-situation photographed herein-above and should not be misinterpreted in order to refuse relief or view with harshness an application made by employees or victims of injustice clamouring for justice in whose matters a liberal and even an indulgent view must always be taken. Delay is condoned liberally in order to decide matters on merits and in order to do substantial justice. Not in order to help the wrong doer adopting do-your worse attitude treating the Courts with contempt and I with a view to virtually tire out the helpless victims. When there is likelihood of injustice delay must always be condoned. When there is likelihood of injustice the expression `good cause' must be strictly construed and delay must not be condoned for the jurisdiction is exercised for doing justice and | not for doing injustice by condoning delay. We re-affirm the principles articulated in Karim Abdulla v. Bai Hoorbai. 16 G. L. R. 835, reading as under:
"1.
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown cut at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic unpregmatic approach should be made. Why not every hour's delay, every se-sound's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay.
5. There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala-fides. The presumption would be just the other way round.
6. It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such matters. The attitude must be one informed with greatest awareness for the cause of justice.
7. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of re moving injustice and expected to do so." and would add thereto as clause 8 the principle enunciated in the present decision as under :
"8.
Delay may not be condoned if the result would be to promote injustice suffered by a poor victim or which would result in the relief given to a poor victim being denied to him by reopening a closed Chapter wherein substantial justice has been done in favour of a sufferer of injustice. In other words to help promote justice on merits, "always'. To promote injustice, `never'.
12. Aforesaid decision has been considered by Industrial Tribunal, Baroda and come to conclusion that ex-parte award passed by Industrial Tribunal, Baroda in Complaint (IT) No.17/1989 after 11 years from date of termination cannot be considered to be a hasty decision given by Industrial Tribunal, Baroda in absence of petitioner company. The deliberate attempt and culpable negligence on part of petitioner company has been rightly appreciated by Industrial Tribunal, Baroda and come to conclusion that petitioner company has not been able to justify delay of about 9 years after having information by legal notice dated 1.2.2001 from respondents workmen, which notice was received by Managing Director Ms.Rajniben Bhagat and original receipt was also produced on record which bears signature of said Managing Director. The said facts are not disputed by petitioner company before Industrial Tribunal, Baroda. Therefore, delay remained unexplained and no sufficient cause has been shown by petitioner company and it amounts to deliberate culpable negligence on part of petitioner company and no oral evidence led to justify such delay and to prove sufficient cause. Therefore, according to my opinion, Industrial Tribunal, Baroda has rightly rejected said application which has been preferred by petitioner company under Rule 26A of Industrial Disputes (Gujarat) Rules,1966 without filing separate application for condonation of delay.
13. The unexplained delay or laches and inordinate delay may be considered by itself a ground to refuse relief to petitioner irrespective of the merit of his claim. This view has been taken by this Court (Coram :
H.K.Rathod,J.) in SCA No.1401/2011 dated 7.3.2011. Relevant observations of aforesaid decision are as under :
I have considered submissions made by learned advocate Mr. Kanabar. I have also perused both orders passed by Commissioner. Before Commissioner vide Ex.10, workman was examined who has given detailed evidence that he was examined by Dr. R.M. Desai and he was not able to walk and not able to lift the weight even he was not able to perform any kind of work and he was not able to stand for more than five to ten minutes and therefore, that evidence has been considered which was not challenged by petitioner before Commissioner. The Commissioner has rightly examined matter in absence of petitioner after receiving notice and not remained present. For that, no sufficient cause has been shown by petitioner and delay of seven years not explained by petitioner and there was no sufficient cause has been shown by petitioner before Commissioner. Not only that before Commissioner, in delay condone application, no one was examined on behalf of petitioner to justify delay or to satisfy Commissioner about delay occurred in filing such application. Such belated case is not required to be entertained by Court. The said aspect has been considered by Apex Court in case of Union of India & Ors. v. A. Durairaj (D.) reported in 2011 AIR SCW 873. The relevant discussion is made in Para 13 and 14 which are quoted as under :
13.
It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to he employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the mater and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar [2010 (2) SCC 59] : (2009 AIR 7621 Lab IC 575 : AIR 2009 SC (supp) 2158) and held as follows (para 9 of AIR SCW):
The order of the Tribunal allowing first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. X x x x x When a belated representation in to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do , the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in with a court s direction. Neither a Court s direction to consider a representation issues examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing consideration of a claim representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue. If it is with reference to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct consideration without itself examining of the merits, it should it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect.
We are, therefore of the view that the Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
This Court has also had an occasion to consider of limitation in case of Water Resources Development Corporation Ltd. v. Baldevji Mohanji Solanki in (2) GLH 472. The relevant Para 6/5 to 6/7 are quoted as under :
6.5 In case of Bhoop Singh Vs. Union of India, reported in AIR 1992 SC 1414, the Apex Court has held in Para.8 as under :
8.
There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that behalf. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the petitioner s contention upset the entire service jurisprudence and we are unable to Dharampal in the manner suggested by the petitioner. Art. 14 or the principle of non-discrimination is an equitable principle and, therefore, any relief claimed on that basis must itself be founded on equity and not .be alien to that concept. In our opinion, grant of the relief to the petitioner, in the present case, would be inequitable instead of its refusal being discriminatory as asserted by learned for the petitioner. We are further of the view that these circumstances also justify refusal of the claimed under Art. 136 of the Constitution.
6.6 In case of State of M.P. & Others Vs. Nandlal Jaiswal and Others, reported in 1987 SC 251, the Apex Court has held in Para.23 as under
:
23.
Now, it is well settled that the of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decisions of this Court one in Ramanna Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCR 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v. Collector, Raipur, (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point out that in R. D. Shetty s case (supra), even though the action was held to be unconstitutional as being violative of 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition had been filed by the petitioner more than five months after the acceptance of the tender of the fourth and during that period, the fourth respondent had incurred considerable expenditure, aggregating to about Rs. 1.25 lakhs, in making arrangements for putting up the restaurant and the snack bar. Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex hypothesi discretion must be exercised fairly and justly so as to promote justice and not to defeat it.
6.7 In case of Delhi Transport Corporation Vs. Jai Bhagwan, reported in 2003-I LLJ 1029, Delhi High Court has held in Para.4 and 5 as under:
4.
My attention has been drawn by .Bajaj to the judgment of the Constitution Bench in State of Madhya Pradesh Vs. Bhailal, AIR 1964 SC 1006. The Apex Court observed that :
It is not easy nor is it desirable lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay, Court ought not to ordinarily lend its aid to a party by this extraordinary remedy of mandamus.... It appears to us, however, that the maximum period by the Legislature as the time within which the relief by a in a civil court must be brought may ordinarily be taken to a reasonable standard by which delay in seeking remedy under Article 226 of the Constitution of can be measured. This Court may consider the delay unreasonable, even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is than this period, it will almost always be proper for the to hold that it is unreasonable .
It will be relevant to bear in mind the Constitution Bench was concerned with a situation where the petitioner has voiced the grievance that he had been assessed to tax under a void statute. Even in those extraordinary circumstances, the Supreme Court has declined to over look the laches. Ms.Kittoo Bajaj also relies on the decision of the Supreme Court in Maharasthra Road State Corporation Vs. Balvant Regular Motor Service, Amravati, 1969 SC 329. In that case, the Apex Court again articulated that;
It is well established that the writ of certiorari will not be granted in a case where there is negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other , causes prejudice to the adverse party.
The Court relied on Lindsey Petroleum Vs. Prosper Armstrong Hurd, Arbran Farewell and John Kemp (1874) 5 PC 221 and specifically noticed in its earlier decision in Moon Mills Ltd. Vs. M.R.Neher, President, Industrial Court, Bombay, AIR 1967 SC 1450 : 1967 -II LLJ 34, Ms.Kittoo Bajaj relies on the observations of the Apex Court in Naik Subedar Lachhman Dass Vs. Union of India, AIR 1977 SC 1979, there the Court found that the writ petition has been filed after gross delay for which there was no specific explanation and, therefore, endorsed the Court s decision for a summary dismissal of the action. It may be observed that the laches have not even been attempted to be answered or explained by the DTC.
5. On the issue of delay and laches, .Vibhu Shankar, learned Counsel for the petitioners, has relied heavily on Para.6 of the judgment in Moon Mills Ltd. Vs. M.R.Meher, President, Industrial Court, (Supra) which reads as under at p.38 of 1967-II LLJ 34.
On behalf of the respondents Mr. B. Sen, however, pointed out that the of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958 but application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondents had made an application, August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959. Mr. B. Sen then put forward the argument that the appellant itself had acted on the bonus agreement and on October 14, 1957 issued a notice informing its workers that pursuant to the award of the Industrial Court in terms of the agreement, dated March l, 1956 reached between the Millowners ion, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding payment of bonus would be to them at 4.8 per cent of the total basic earning during 1956 . On October 27, 1956 the appellant and the Secretary of the second respondents signed a joint statement which it was stated as follows :
Since it has not yet been possible to complete bonus calculations for all these years, it is hereby agreed between the Rashtriya Mill Mazdoor Sangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus Agreement the Moon Mills should pay a bonus at the rate of 4.8 per cent for each of the years 1953, 1954 and 1955 as a tentative payment.
It was, therefore, contended that appellant itself had agreed with the second respondents to pay bonus for 1953, 1954, 1955 and 1956 according to the terms of the bonus agreement. It was also pointed out that the appellant had not pressed its objection with regard to jurisdiction before the Labour Court or the Industrial Court. But it appears that the decision of this Court in Prakash Cotton Mills case, (1962) 2 SCR : (AIR 1961 SC 977), was given on February 16, 1961 after the decision of K. K. Desai, J. on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of a writ under Art. 226 of the Constitution. It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v.
Prosper Armstrong Hurd, Abram Farewell, John Kemp, (1874) 5 PC 221 at p. 239, as follows:-
Now the doctrine of laches in Courts Equity is not an arbitrary or a technical doctrine. Where it would be unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried principles substantially equitable. Two circumstances, always in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or other, so far as related to the remedy.
In view of lethargic approach, non-cooperative and not given compensation to workman when accident has been occurred with a knowledge to petitioner, therefore, contentions raised by learned advocate Mr. Kanabar on merits cannot be examined by this Court and delay is not at all explained by petitioner before Commissioner and Commissioner has rightly considered original records of Case No.106 of 1993 and for that, Commissioner has not committed any error which requires interference by this Court.
It is necessary to note that for justifying or explaining same, there must be some evidence is to be produced by petitioner before Commissioner, but, no such attempt has been made by petitioner. On the contrary, petitioner has remained adamant and such a long delay of seven years definitely cause great prejudice to the right of respondent claimant when workman has expired meantime and after these many years, without explaining delay itself, matter cannot get to be reopened by petitioner. Otherwise, there is no end to such litigation where workman is became victim of accident during the course of and that facts were within knowledge of petitioner and after receiving notice from Commissioner, not remained present and amount of compensation is not paid to complainant.
14. Aforesaid decision of this Court was challenged by petitioner employer before Division Bench of this Court in LPA No.692/2011 which has been decided by Division Bench of this Court on 2.5.2011. Said decision has been reported in 2011 II CLR 497. The Division Bench has been pleased to dismiss aforesaid LPA filed by that of petitioner while confirming order passed by this Court, as referred above. Relevant discussion made by Division Bench of this Court is as under:
2. The learned Single Judge has relied on the decisions of the Apex Court which are extracted as under: ...of India & Ors. v. A. Durairaj (D.) in AIR SCW 873, relevant discussion made in Para 13 and 14 which are quoted as under :
13.
It is well settled that anyone who feels aggrieved by non-promotion or non-selection should the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to he employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the . Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the mater and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar [2010 (2) SCC 59] : (2009 AIR SCW 7621 Lab IC 575 : AIR SC (supp) 2158) and held as follows (para 9 of AIR SCW):
The order of the Tribunal allowing the first application of respondent without examining the , and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. X x x x x When a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court s direction. Neither a Court s direction to consider a representation issues without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing consideration of a claim or representation should whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue. If it is with reference to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct consideration without itself examining of the merits, should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect.
We are, therefore of the view that the High Court ought to have affirmed the order of the dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
...
.... ... 6.5.
In case of Bhoop Singh Vs. Union of India, in AIR 1992 SC 1414, the Apex Court has held in Para.8 as under :
8.
There is another aspect of the matter. Inordinate unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that behalf. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the petitioner s contention would upset the entire service jurisprudence and we are unable to construe Dharampal in the manner suggested by the petitioner. Art. 14 or the principle of non-discrimination is an equitable principle and, therefore, any relief claimed on that basis must itself be founded on equity and not .be alien to that concept. In our opinion, grant of the relief to the petitioner, in the present case, would be inequitable of its refusal being discriminatory as asserted by learned counsel for the petitioner. We are further of the view that these circumstances also justify refusal of the relief claimed under Art. 136 of the Constitution.
6.6. In case of State of M.P. & Others Vs. Nandlal Jaiswal and Others, reported in AIR 1987 SC 251, the Court has held in Para.23 as under :
23.
Now, it is well settled that the power of the Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in train new injustices. The rights of third parties may intervene and if the writ jurisdiction exercised on a writ petition filed after unreasonable delay, it may have the effect of not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the Court in deciding whether or not to exercise such jurisdiction. We do not think it to burden this judgment with reference to various decisions of this Court it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decisions of this Court one in Ramanna Dayaram Shetty v. International Airport Authority of India, (1979) 3 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v. Collector, Raipur, (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point out that in R. D. Shetty s case (supra), even though the State action was held to be unconstitutional as being violative of Article 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition been filed by the petitioner more than five months after the acceptance of the tender of the fourth respondent and during that period, the fourth respondent had incurred considerable expenditure, aggregating to about Rs. 1.25 lakhs, in making arrangements for putting up the restaurant and the snack bar. Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant to the petitioner. But such cases where the demand of justice is so compelling that the High would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex hypothesis every must be exercised fairly and justly so as to promote justice and not to defeat it.
The learned Single Judge, therefore, found that the delay in filing filed by the appellant could not be condoned in light of the aforesaid decisions. The learned Single Judge has further held as under:
...
... ... The
contention raised by learned advocate Mr. Kanabari this Court is that acknowledgment, Page 31, does not bear signature of petitioner and Page 42 second acknowledgment, where also, signature was in dispute, but, it is necessary to note in support of this contention, no one was examined by petitioner before Commissioner who can deny signature of petitioner. Before Commissioner, while conducting delay condone application, no oral evidence was led by petitioner and in support of delay, no documentary evidence has been produced by petitioner and even no reasonable explanation has been given by petitioner. The contention raised by learned advocate Mr. Kanabari that instead of 255 disability as certified in medical certificate, the finding of 100% disability is contrary to medical certificate, but, Commissioner has considered oral evidence of workman which was remained unchallenged and according to evidence of workman, he was totally unfit for doing any kind of work, that itself is proved 100% disability in earning capacity. The Commissioner has rightly examined 100% disability of workman in earning capacity, against which, there is no rebuttal evidence produced by petitioner before Commissioner. Therefore, contentions raised by learned Mr. Kanabar cannot be accepted.
In view of lethargic approach, non-cooperative attitude not given compensation to workman when accident has been occurred with a knowledge to petitioner, therefore, contentions raised by learned advocate Mr. Kanabar on merits cannot be examined by this Court and delay is not at all explained by petitioner before Commissioner and Commissioner has rightly considered original records of Case No.106 of 1993 and for that, Commissioner has not committed any error which requires interference by this Court. Therefore, contentions raised by learned advocate Mr. Kanabar cannot be accepted, hence, rejected.
Therefore, according to my opinion, order passed by s Compensation Commissioner, Surendranagar rejecting delay condone application filed by petitioner is rightly rejected, for that, Commissioner has not committed any error which requires interference by this Court.
It is necessary to note that for justifying delay or same, there must be some evidence is to be produced by petitioner before Commissioner, but, no such attempt has been made by petitioner. On the contrary, petitioner has remained adamant and such a long delay of seven years definitely cause great prejudice to the right of respondent claimant when workman has expired meantime and after these many years, without explaining delay itself, matter cannot get to be reopened by petitioner. Otherwise, there is no end to such litigation where workman is became victim of accident during the course of employment and that facts were within knowledge of petitioner and after receiving notice from Commissioner, not remained present and amount of compensation is not paid to complainant.
15. Recently, identical question has been examined by Division Bench of this Court in Civil Application (Condonation of Delay) No.13355 of 2010 wherein delay condonation application made by applicant after about more than 5 years has been rejected by Division Bench of this Court. While rejecting delay condonation application, following observations have been made by Division Bench of this Court in Para.8, 9, 10, 11 and 12 which are quoted as under :
8. Recently, in case of Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Corporation and another, reported in (2) SCALE 645,apex court has considered case of condonation of more than four years in filing of appeal. Para 8 may be reproduced as under:
8.
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression sufficient cause employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC , State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582.
9. Recently, in case of Venkateshwarlu (D) by LRs vs State of AP & Ors., in 2011 (2) SCALE page 703, similar question of condoning delay, to what extent, it is permissible, has been considered. For that, relevant paragraph 19, 20, 21, 22, 26 and 27 are quoted as under:
19.
We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country,including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors.5
20. In the case of M. Balakrishnan (supra), Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
21. In the case of Sardar Amarjit Singh Kalra (supra), this Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. In the case of Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini & Ors, (Supra), this Court again reiterated that in as much as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:- The Courts have to adopt a justice oriented approach dictated by the consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court.
22. The concepts of liberal approach and in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-
25. We may state that even if the term sufficient cause has to receive construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its connotation.
26.
The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his vigilantly.
26. We are at a loss to fathom any logic or rationale, which could have the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as liberal , justice oriented approach , substantial justice can not be employed to jettison the substantial law limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties.
We are rather pained to notice that in this case, being satisfied with the use of mere intemperate language, the High Court to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial , have to be exercised within reasonable bounds, known to the law.
The discretion has to be exercised in a systematic manner informed by reason. Whims fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
27. The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of Judges on the bench. The latent anger and hostility ingrained in the expressions in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the justice oriented , the bedrock of which is fairness and impartiality. Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice fear or favour, ill will or malice. This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality. The first casualty of prejudice is objectivity and impartiality. It is also well known that anger deprives a human being his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. We may notice here the observations made by a Constitution Bench of this Court in the case of State of U.P. Vs. Mohammad Naim, are of some relevance in the present context. In Paragraph 11 of the judgment, it was observed as follows:-
If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be to perform their functions freely and fearlessly and without undue by any body, even by this Court. At the same time it is equally necessary in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very for which they are made. It has been judicially recognised that in the matter of making disparaging remarks persons or authorities whose conduct comes into consideration before of law in cases to be decided by them, it is relevant to consider; (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending ; (b) whether there is evidence on record bearing on that conduct, justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and not normally depart from sobriety, moderation and reserve.
10.Recently, in case of of India & Ors. v. A. Durairaj (D), reported in 2011 AIR SCW page also, question of delay is to be condoned or not and in which circumstances, has been considered by apex court. Relevant discussion and observations made by apex court in para 12, 13 and 14 are quoted as under:
12.
Section 21 of the Administrative Tribunals , 1985 prescribes the limitation for approaching the Tribunal. In this case the examination of the respondent and the non-promotion as ad hoc ASTE were in the year 1976. The respondent accepted the diagnosis that he was blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact lenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non-challenge, the issue relating to his nonselection in 1976 attained finality and the same issue could not have been reopened in the year -2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
13. It is well settled that anyone who feels aggrieved by non-promotion or nonselection approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become and approaches the Court/Tribunal belatedly, grant of any relief on the basis of belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the as the date of cause of action).This Court had occasion to examine such in Union of India v. M.K. Sarkar [2010 (2) SCC 58] and held as follows:
The order of the Tribunal allowing the first of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. X x x x x When a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court s direction. Neither a court s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing consideration of a claim or representation should examine whether claim or representation is with reference to a live issue or whether it is with to a dead or stale issue. It it is with reference to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court Tribunal deciding to direct consideration without itself examining of the , it should make it clear that such consideration will be without prejudice to contention relating to limitation or delay and laches. Even if the Court does not say so, that would be the legal position and effect.
We are therefore of the view that the High ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
Re:
Question (ii)
11.Recently, Division Bench of this Court in case Dhanabhai Chaudhary the then Joint Manager versus S.Vaidyanathan and Ors., (1) GLH 675 observed as under in para 10,11,12, 17 and 21:
10.
In this context, judgment relied on by learned Advocate Mr.Parikh may be referred to. Hon ble Apex Court in the case of C.Jacob v/s. Director of Geology and Mining and Anr. [(2008) 10 SCC 115] observed in paragraph 8 and 9 as under :-
8.
Let us take the hypothetical case of an employee who is terminated from service 1980. He does not challenge the termination. But nearly two decades later, in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of representation. The Tribunals/High Courts routinely allow or dispose of such /petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the .
9. The courts/tribunals proceed on the assumption, that every citizen deserves a to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any decision on rights and obligations of parties. Little do they realize the consequences of such a direction to consider . If the representation is considered and accepted, ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to consider . If the representation is considered and rejected, the ex-employee an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is for quashing the rejection of representation and for grant of the relief in the representation. The Tribunals/High Courts routinely entertain applications/petitions ignoring the huge delay preceding the representation, proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
11. In the case of Jatunbibi w/o. Gulam Mohiyodin Sheikh and Ors. V/.s State of Gujarat [2000 (2) GLR 1599], this Court refused to condone delay considering lack of action on the part of the applicant therein for a long time and also considering case of the applicant that he approached the respondent authority for number of times.
12. The case of the applicant, therefore, have to be considered in above set of facts and law. Admittedly, impugned order was passed on 06.09.2006 and thereafter, first action initiated by the applicant was in the form of notice dated 03.05.2007. During this period, the applicant does not claim to have taken any action on his part nor does he explain why he did not take any action to challenge the order impugned in this appeal. This become more relevant because during period, on 27.09.2006 the applicant came to be acquitted in the criminal trial. His case in the petition itself was that he not have been terminated from service during the pendency of criminal trial and in light of acquittal, some action on his part can reasonably be expected, which he has failed to do.
17. Expanding our line of thoughts , we find that even if the delay is condoned and appeal is sought to be decided on merits, it would not help the applicant in any manner as he had not argued the matter on merits before the learned Single Judge. The only point that was canvassed was that during the pendency of criminal trial, the applicant could not have been removed from service. Now that the trial is over and he is acquitted of charges, it would not be possible for him to canvass any new point on merits which were not canvassed before the learned Single Judge. Therefore, even if the delay is condoned and is entertained, it is not going to help the applicant in any manner.
21. In view of above discussion that there gross inaction on the part of the applicant between 06.09.2006 to 03.05.2007, between 16.05.2007 to 01.04.2008 and thereafter. The inaction has not been attempted to be explained. The above conclusion is reached by taking case of the applicant at its face value. This apart, as discussed earlier, even on , the applicant s appeal if entertained, is not likely to help the applicant in any manner and the exercise would be purely academic and no substantive justice is likely to be rendered by condoning delay.
12. In view of aforesaid facts and circumstances and in view of fact that delay has not been satisfactorily explained and no sufficient cause to this court which satisfy conscience of this court, applicant has not come out with case that on which date, she contacted her advocate after order was passed by learned Single Judge of this Court in Special Civil Application, or on the date on which matter has been dismissed on default by Division Bench of this Court because of non removal of office objection in time, thereafter, whether any information has been given by advocate to applicant or not, and subsequently after how many years, applicant contacted advocate or not and whether any answer is given by advocate to her or not, for that, there is no detailed explanation and averments made by applicant in present application. Affidavit of advocate who has been engaged by is also not filed on record in support of averments made in present application, therefore, question is whether it is a negligence or fault on the part of applicant or the part of advocate who was engaged by applicant. For that, no detailed averments have been made by applicant in present application. On the contrary, merely vague averments have made in present application. In this case, apparently, conclusion of negligence and inaction on the part of applicant comes. Conclusion comes that applicant had not remained about her right and proceedings initiated by her and no sincere efforts have been made by her after filing of an appeal Division Bench of this Court. Merely applicant is aged person and suffering from various ailment may not be a good ground for not contacting advocate within reasonable time. Applicant remained silent about date on which was having knowledge or information of order passed by Division Bench of this Court. No date and details have been given by applicant. In facts of present case, delay being sizable, that of about five years and when parties have now settled as if dispute had been settled by order of this Court passed by learned Single Judge, now, it is not permissible for racking up entire issue to be reopened while condoning delay which caused great prejudice to the rights of other side, accrued in their favour. According to our considered opinion, delay is not required to be condoned. Matter has been finally concluded by order of learned Single Judge and land has vested in State Government being surplus land. As regards contention raised by learned advocate . Makwana that applicant is still in possession of land, for that, no averments have been made by applicant in present application and no proof has been produced on record to show that land in question being surplus land is still in possession of present applicant. Once land is vested with State Government according to law, even question of possession also cannot be given weightage for condoning this much delay of more than five years which has remained and no sufficient cause has been shown and, therefore, according to our opinion, on merits also, concurrent finding of fact given by all authorities confirmed by learned Single Judge of this Court would hardly be required to be disturbed as original petition was in nature of petition under Article 227 of Constitution of India. Therefore, there is no substance in this application. Therefore, same is dismissed. Notice is discharged. No order as to costs.
16. Considering facts which are found from record, respondents workmen, whose service were terminated by petitioner company on 13.6.1989 during pendency of reference without obtaining prior approval and permission as required under Section 33(3) and 33(2)(b) of I.D.Act,1947. The respondents workmen are concerned in pending dispute and also are protected workmen declared by Authoriy. The respondents workmen having ex-parte award in their favour after 11 years on 28.2.2001 from date of termination on 13.6.1989 and not able to get fruits of such result and therefore, they filed recovery application before Labour Court in the year 2006. The intimation and information communicated to Managing Director on 1.2.2001 by respondents workmen, even though no steps have been taken by petitioner company to file appropriate proceedings against ex-parte award and remained negligence and not taken effective steps immediately. But after a period of 8 to 9 years on 4.12.2009, an application under Rule 26A of Gujarat Rules has been filed and delay of 8 to 9 years has not been explained by petitioner before Industrial Tribunal, Baroda. No oral evidence was led to deny facts of notice dated 1.2.2001 received by Managing Director of petitioner company. In support of sufficient cause, there must be some evidence to be led by petitioner company for justification but, no oral evidence has been led and no documentary evidence has been produced on record to justify such inordinate delay of more than 8 to 9 years.
17. Therefore, in light of this background, workmen are out of job since 1989 and till date, ex-parte award is not implemented by petitioner company and total period comes to about more than 20 years and in such circumstances, if delay is condoned in filing such application under Rule 26A, then it amounts to promote injustice and granting premium in favour of petitioner company, who deliberately remained negligence and ignored ex-parte award. For this aspect, Industrial Tribunal, Baroda has rightly examined matter in detail and also given reasons with application of mind in support of its conclusion. Therefore, contention raised by learned advocate Mr.Majmudar cannot be accepted. According to my opinion, Industrial Tribunal, Baroda has rightly rejected application preferred by petitioner company. For that, no error is committed which requires interference by this Court while exercising powers under Article 227 of Constitution of India. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD, J.) (vipul) Page 45 of 5 Top