Patna High Court
Bihar State Coop. Marketing Union Ltd. vs Presiding Officer, Labour Court And ... on 16 January, 1984
Equivalent citations: 1985(33)BLJR531
JUDGMENT
H.L. Agarwal and S.H.S. Abidi, JJ.
1. The petitioner by this writ application challenges the order of the Presiding Officer, Labour Court, Patna, dated the 13th June, 1979 (contained in Annexure '8'), condoning the delay of about 11 years in making a petition of complaint before him by the Respondent No. 2, under Section 26(2) of the Bihar Shops and Establishments Act (hereinafter referred to as the Act). In order to appreciate the controversy between the parties, the facts, very briefly stated, are as follows.
2. Respondent No. 2 was working as a Depot Manager and posted at Bettiah as Incharge of the Co-operative Credit Agricole Depot and Coal Dumps of the petitioner at the relevant time A departmental proceeding was started against him for misappropriation of heavy stock of coal during his stay at Bettiah, amounting to more than Rs. 20,000/-. In the inquiry, he was found guilty and ultimately he was dismissed from the service by an office order dated 20th May 1966 (contained in Annexure 11). As already stated earlier, the present complaint petition was filed after a delay of about 11 years on the 29th January, 1977. Although Sub-section (2) of Section 26 of the Act prescribes a time limit of only 90 days for filing such a petition from the date of the receipt of the order of dismissal on one or more of the grounds enumerated therein. Sub-section (4) of Section 26 of the Act empowers the prescribed authority to condone the delay in filing such a complaint, if it is satisfied that there was sufficient cause for not making the application within the prescribed time.
3. In the application for condoning the delay that was filed under Section 5 by the Limitation Act, (vide Annexure '3' to the writ application,) by the respondent he pressed the following causes for condoning this delay:
(i) From the statements made in Paragraph No. 2 of the said application it simply appears that the respondent was making efforts for getting copies of certain documents from his employer, when he was ultimately advised to prefer an appeal before the Chairman of the Bihar State Co-operative Marketing Union, which he did on the 20th October, 1966.
(ii) In the sixth paragraph of this application it is stated that the respondent renewed the appeal to the Registrar, Co-operative Societies, Bihar, in 1966, and again in 1969.
(iii) After several years, the Registrar, Co-operative Societies, passed orders of dismissal of his appeal, on the 10th December, 1975.
(iv) Since 4th January, 1976, till December, 1976, i.e., practically one year, he was ill, and filed the complaint petition in question on the 20th January, 1977. These are all the explanations offered by the respondent for claiming condonation of delay.
4. The respondent has not stated the date of the publication of the Staff Regulations, under which he filed the appeal before the Registrar, Co-operative Societies, but, it is an undisputed fact that they were not published for several years when the petitioner was dismissed in the year, 1966.
5. The petitioner challenges the order contained in Annexure '8' on the ground that the same is perverse and arbitrary, inasmuch as the facts and the circumstances which have been considered by Respondent No. 1 did not constitute any sufficient cause and for that matter, they should not have been held to constitute 'sufficient cause' within the meaning of Sub-section (4) of Section 26 of the Act by the Labour Court.
6. In the long counter-affidavit filed on behalf of Respondent No. 2, annexing various letters and applications that he made for obtaining copies of certain documents, he has tried to make out a case that the authority, Respondent No. 1, has exercised the jurisdiction in a most proper way, and, in any view of the matter, that should not be interfered with by this Court in writ jurisdiction, so much so that Mr. Madan Mohan Prasad, appearing for him has raised a preliminary objection that the writ application was not even maintainable as such, inasmuch as it arises out of an order for condoning the delay, which was a matter purely discretionary, within the exclusive jurisdiction of Respondent No. 1.
7. The preliminary objection has been noticed simply to be dismissed, without much discussion, on the simple ground that it is entirely misconceived and erroneous. The Labour Court is a quasi-judicial authority and must exercise its powers in a quasi-judicial manner. Therefore, under the powers of superintendence conferred upon this Court under Article 227 of the Constitution, this Court certainly is authorised to examine as to whether any authority subordinate to it has exercised powers conferred upon it in a legal and proper manner. The matter is so settled that it does not require any citation, but, nonetheless. we would refer to th decision in the case of Sarpanch, Lonand v. Ramgiri Gosav where also the expression 'sufficient cause' was the subject matter of scrutiny, and it was held that although the High Court will not review the discretion of the authority judicially exercised but it will interfere, if the exercise is capricious or perverse or ultra vires. It is no doubt true that the High Court may refuse to interfere, as was contended by Mr. Madan Mohan Prasad, under this provision, unless there is miscarriage of justice and this Court should also not interfere simply on the ground that on the facts and in the circumstances, it could take a different view of the matter. The question that has been raised before us is as to whether the facts and the circumstances, which have been relied upon by Respondent No. 2 before the Labour Court for condoning the delay do at all constitute any cause, what to say of sufficient cause, within the meaning of Section 26(4) of the Act, for condoning the delay in question.
8. The Act is of the year 1953, and, therefore, the remedy under Section 26 (2) was available to the concerned respondent in the year 1966, when he was visited with the order of dismissal. Undisputedly, he had no other alternative remedy, inasmuch as the Staff Regulations were also not framed for several years, and, therefore, the only remedy that appears to us to be available to the said respondent, and as has also been observed by the Registrar, Co-operative Societies, Bihar, in his order dated the 10th December, 1975 (Annexure '6'). was also misconceived.
9. We fail to understand as to what documents actually were needed or particularly copies of what documents of petitioners wanted from Biscomaun (Bihar State Co-operative Marketing Union), after having been served with a copy of the order of dismissal in question. Rule 21 of the Rules framed under the Act has provided that a complaint petition shall be prepared in the form of a memorandum in duplicate, setting forth concisely the grounds of objection to the order complained against. The memorandum has to be accompanied by an affidavit sworn before a Magistrate of the first class that the contents thereof are true to the knowledge and belief of the applicant and that no such complaint had been filed and heard earlier. In this view of the matter, Respondent No. 2 need not have waited for receipt of any document or for the decision of the so-called appeal by any authority none of which, of course, has been shown to us by learned Counsel for the respondent. It is, no doubt, true that the expression 'sufficient cause' should receive a liberal construction, but, at the same time, it must be stated that the Legislature, in fixing different periods of limitation for different remedies, has a great public policy in its mind. Testing the case in hand, if the delay of 11 years is condoned without any sufficient cause, then today, when the matter has been delayed further by lour years and the Respondent might succeed on merits, then it would amount to his reinstatement exposing the petitioner to the liability of a huge amount. Therefore, the power of condonation has to be exercised with great care and caution.
10. Mr. Madan Mohan Prasad, however, placed reliance upon a Full Bench decision of this Court in the case of Abdul Gaffar and Ors. v. Gavas Singh and Ors. . where a question of delay in adding a party was the subject-matter, and, one of the questions was as to whether the lower appellate Court had jurisdiction to allow that application. The matter which was taken into account for condoning the delay was that the person added was left to be mentioned in the certified copy of the decree, and, on examining this fact, this Court made the following observation:
...on going through the records we find that the learned lower appellate Court's observation to the effect that the commission of the name of Serajuddin was due to inadvertence was fully justified. In such circumstances merely because the reasons for condoning the delay have not been fully set out in the order, it will not be proper for us as a revisional Court to interfere with the finding of a competent Court on the main question as to whether the delay should be condoned on an application under Section 5 of the Limitation Act or not.
11. In this view of the matter, the circumstances which impelled this Court to make the above observations, can have hardly any bearing on the circumstances that we have just mentioned, which the Labour Court has considered for condoning the delay. In order to make out 'sufficient cause' within the meaning of Section 5 of the Limitation Act, the circumstances must be only those which are responsible or relevant for the purpose of explaining the delay by the litigant and not any other circumstances which has got no bearing or which would not have affected him in availing the remedy available to him. On examining the matter, in paragraph 4 of the order, the Labour Court has found that not giving copies of certain letters or documents that Respondent No. 2 had demanded from the petitioner would amount to shutting him for choosing the forum of appeal, although it is an undisputed fact that there was no forum of appeal available to him. Be that as it may, even assuming that Respondent No. 2 had any remedy; even that had ended as far back as in the year 1975. and the present application was filed in January, 1977. It is no doubt true that for this period Respondent No. 2 has utilised a medical certificate of his whole year's illness, but the labour Court has not recorded any justifiable finding for the delay made by the Respondent No. 2 prior to his so-called illness.
12. We are tempted to refer to an unreported decision of the Madras High Court in the notes portion of the Labour and Industrial cases, being M.T. Thirumukkarasu v. India Bank 1982 L.I.C. (NOC) 96, where the learned Judges of that Court were confronted with condoning the delay in filing an appeal under the provisions of the Tamilnadu Shops and Establishments Act. The appellant before them was pursuing a concurrent remedy of reference by the Government to the Labour Court under the Industrial Disputes Act, and this action on his part was pressed into service as a justification for condoning the delay in availing the appellate remedy out of time. It was held by the learned Judges that even that did not constitute a valid ground for condoning the delay in filing the appeal. This decision we have cited not for the proposition that pursuing a concurrent remedy cannot be considered as a ground for condoning the delay, but, only to show that the High Court in appropriate cases has to apply itself as to whether the trial Court bas conducted itself properly or not in its writ jurisdiction.
13. Taking into consideration all the facts and the circumstances mentioned above, we hold that Respondent No. 1 has committed a serious error of jurisdiction in condoning the delay without any just or sufficient cause and the order impugned must be held to be capricious and perverse. The application is thus allowed and the impugned order condoning the delay is quashed. In the circumstances, however, we will not saddle the respondents with any cost.