Madras High Court
Christian Medical College And Hospital ... vs State Of Tamil Nadu And Ors. on 12 June, 1990
Equivalent citations: (1990)2MLJ312
JUDGMENT Nainar Sundaram, J.
1. The Prayer in the Writ Petition runs as follows:
For the reasons stated in the accompanying affidavit of the petitioner, it is prayed that this Honourable Court may be pleased to issue a Writ in the nature of certiorarified mandamus after calling for the concerned records from, the first-respondent pertaining to G.O. Ms.No.274, Labour and Employment Department, dated 19.2.1979 and further confirmed by their order in Letter No.11180/C2/88-1, dated 29.4.1988, quash the orders dated 19.2.1979 and 29.4.1988 and consequently direct the first respondent to refer the dispute of the non-employment of 40 workmen for adjudication by the Industrial Tribunal, Madras, forthwith, award costs and render justice.
By G.O.Ms.No.274, Labour and Employment Department, dated 19.2.1979 referred to in the prayer in the Writ Petition and hereinafter called as the impugned Government Order, there has been a decline on the part of the first-respondent to refer for adjudication the industrial Dispute relating to non-employment of certain personnel for the second-respondent. The impugned Government Order has adverted to another Government Order, G.O.Ms.No.275, dated 19.2.1979 under which there has been reference for adjudication of the industrial dispute relating to the non-employment of three other personnel of the second-respondent. A copy of the impugned Government Order is annexed to this order of ours as Annexure A. On 16.6.1979, the petitioner union presented a petition for reconsideration of the question of decline to make a reference of the industrial dispute relating to non-employment of certain personnel of the second respondent The second respondent moved three Writ Petitions before this Court, one seeking for a writ of declaration that the provisions of the Industrial disputes Act, 1947 hereinafter referred to as the Act, are unconstitutional and ultra vires and inapplicable in its entirety to minority educational institutions falling under Article 30 of the Constitution of India, such as the second respondent; second for a writ of certiorari to quash G.O.Ms.No.275, dated 19.2.1979 and third to quash G.O.Ms.No.605 dated 1l.4.1979 relating to another employee of the second-respondent. We are not concerned with the said employee in the present Writ Petition. There were interim orders of stay of the operation of the provisions of the Act so far as the second-respondent was concerned, initially passed on 10.1.1980 and those orders were subsequently made absolute on 14.4.1980. The said Writ Petitions, namely W.P. Nos. 220 to 222 of 1980, were disposed of by a Bench of this Court on 23.12.1982 and the Writ Petitions were allowed and the rule nisi was made absolute. The matter was agitated further before the highest Court in the land and the agitation ended only on 23.10.1987 by the decision of the highest Court in the land; That decision set aside the pronouncement of the Bench of this Court As a result, the embargo with reference to prosecution of the proceedings under the Act, which prevailed between the years 1980 and 1987 was removed. The petitioner union on 27.2.1988 moved for reopening the matter. On 29.4.1988, the first-respondent, by the letter, referred to in the prayer in the Writ Petition and hereinafter called as the impugned letter, declined to comply with the request of the Petitioner-Union. A copy of the impugned letter stands annexed to this order of ours as Annexure B. The petitioner-union on 31.8.1988 addressed a communication to the first-respondent reminding it about the question of reconsideration. A copy of the said letter dated 31.8.1988 stands annexed to this order of ours as Annexure C. That letter of the petitioner-union was replied by the first-respondent on 24.11.1988 and a copy of it is annexed to this order of ours as Annexure D.
2. Mr. K. Chandra, learned Counsel for the petitioner, in support of the prayer in the Writ Petition, would submit that it cannot be stated that once, the first-respondent refused to refer for adjudication the industrial dispute, it cannot change its mind on a reconsideration of the matter and it could certainly reconsider the question of making the reference when it is pointed out that it has earlier misunderstood the existing facts and or the correct position in law; and in the instant case, the first-respondent has advanced a totally unsustainable and an irrelevant reason for declining to reconsider when it was stated in the impugned letter that the claim of the petitioner union was belated one. As against this, Mr. Sanjay Mohan, learned Counsel appearing for the second-respondent would, submit that nothing prevented the petitioner-union from putting the impugned Government Order in issue immediately after it came to be passed instead of resorting to the process of reconsideration and in appropriate cases the Government can decline to make a reference taking note of the lapse of time because that will cause inconvenience and prejudice to the employer and the present case is one such and the first-respondent was legitimate in declining to reconsider the question of making a reference.
3. Our assessment of the facts of the case leads us to a conviction in our mind that in the present case the question of delay cannot come in the way of the petitioner-union asking for a reconsideration of the question of making a reference of the industrial dispute. As per the facts of the case, already traced, the petition for reconsideration was pursued by the petitioner-union within four months from the date of the impugned Government Order. Though it is stated in the impugned letter that the petition for reconsideration itself was rejected as per communication dated 7.11.1979, learned Counsel for the petitioner-union says that no such letter reached his client and on behalf of the first respondent, neither a copy of any such letter nor any acknowledgement for having served it on the petitioner-union has been produced. Hence, we have to proceed on the basis that the question of reconsideration was not given a quietus by the first respondent positively making up its mind to that effect and intimating the same to the petitioner Union. The second respondent ventured to question the very applicability of the provisions of the Act to it and the agitation was pending before this Court and thereafter before the highest court in the land. There was no order of stay prevailing during the pendency of the proceedings before this Court and those proceedings ended in favour of the second-respondent Until this decision of this Court was set at naught by the pronouncements of the highest Court in the land, that decision was binding on -the parties and no useful purpose would have been served by the petitioner-Union agitating over and pursuing the question of decline on the part of the first-respondent to make a reference of the industrial dispute relating to the non-employment of certain personnel of the second-respondent. That would be a futile process and no culpability of delay or laches as such could be pinned down on the petitioner-Union when we take note of this aspect After the pronouncements of the highest Court in the land, as per facts of the case, already traced, the petitioner-Union pursued the matter with diligence and we could not say that there was any wilful lethargy or unexplained delay on the part of the petitioner-Union in the prosecution of the necessary steps. The proposition on the question of reconsideration of the question of making a reference of an industrial dispute for adjudication, as stated by the learned Counsel for the petitioner, is one settled by pronouncement of the highest Court in the land and the said proposition is that the government can change its mind when it has been impressed that there has been a misunderstanding of the facts existing or of the proposition of law applicable to them. Though a petition for reconsideration cannot be banked upon to wash off inordinate delay in the prosecution of remedies, yet the power for reconsideration being there, the question of exercise of it must be considered reasonably and fairly and not arbitrarily, advancing irrelevant and unsustainable reasons. We are not expressing any view on the merits of the case and we are only concerned with the tenability of the reasons advanced in the impugned letter that the claim of the petitioner-Union for reconsideration is a belated one. That reason must go. The petitioner-Union has sought for reconsideration even on 164.1979 and the matter could not be pursued on account of the unavoidable circumstances since the very question of the applicability of the provisions of the Act to the second-respondent was the subject matter of agitation which ultimately ended only on 23.10.1987. Hence, we could not appreciate and sustain the reason expressed in the impugned letter that the claim of the petitioner-Union for reconsideration is a belated one and as such its request for reconsideration cannot be complied with.
4. There is an anxiety on the part of the second respondent, expressed through its learned Counsel, that the merits of the case do not at all justify the making of a reference, we refrain from going into this aspect since it will not be in order for us to do so. It is for the first-respondent, while reconsidering the question of making a reference to take note of all the relevant aspects, past and present, and deal with the question in an appropriate manner. Learned Counsel for the petitioner would contend that the very reasons expressed in the impugned Government Order for declining to refer cannot be sustained in law, especially in view of the pronouncement of a Bench of this Court in Shaw Wallace and Co. v. Government of Tamil Nadu rep. by its Commissioner and Secretary, Labour Department and Ors. (1988) I LLJ 177. Even on this question we need not express any view of ours at this juncture because the first-respondent is duty bound to take note of the principles discussed in and the ratio of the said pronouncement while reconsidering the question of making a reference.
5. Our above discussion obliges us to interfere in writ powers. Accordingly, the Writ Petition is allowed, quashing the impugned letter and the matter is remitted to the first-respondent for it to reconsider the question of making a reference of the industrial dispute raised by the petitioner-Union over the non-employment of the concerned personnel of the second-respondent in the light of the observations and directions given by us in the present order. It is needless to state that the first-respondent before passing Orders shall afford adequate opportunity to the parties to present their respective stands and substantiate the same. The matter is considerably old and the first-respondent is directed to deal with the matter and pass orders thereon with expedition within a period of three months from the date of receipt of a copy of this order. We make no order as to costs.