Tamil Nadu Mercantil... v. Appellate Authority ...

Srinivasan, J.:— In this writ petition the order of the Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai, condoning the delay of 285 days in preferring an appeal by the second respondent herein is challenged.

2. The second respondent was employed under the writ-petitioner and he was dismissed from service on 7 July 1980. Admittedly the order of dismissal was served on him on 11 July 1980. He preferred an appeal under S. 41(2) of the Tamil Nadu Shops and Establishments Act, which is referred to hereafter as the Act, after a delay of 285 days on 22 May 1981. He filed an application for condonation of the delay. That was numbered as Tamil Nadu Shops and Establishments case No. 22 of 1981. In the affidavit filed in support of the application, the second respondent stated that after the receipt of the order of dismissal by him, he fell ill with jaundice due to water contamination and he was advised total rest for a period of three months. The next averment in the said affidavit is:

“… I started moving about in the third week of October 1980…”

The affidavit proceeds to state that thereafter in the first week of November 1980, he developed chest pain and after taking rest for about five weeks, he went to Nagercoil to attend to certain domestic matters in spite of having the severity of his condition of health. The affidavit added that he wrote to the writ-petitioner demanding reinstatement, but the writ-petitioner did not reply. There was no reference to any consultation by the second respondent with any doctor for the second illness from which he is alleged to have suffered in November 1980, nor was there, any reference to appeal said to have been filed by the second respondent to the writ-petitioner. What all is mentioned in the affidavit is that he wrote to the writ-petitioner demanding reinstatement.

3. The affidavit proceeded to state that on return from Nagercoil he realised that his visit to Nagercoil aggravated his sickness and he had chest pain and the doctor diagnosed it as symptoms of tuberculosis. According to the affidavit, he was advised total bed rest for about 18 weeks and that his health condition was so poor again and again he was suffering from one ailment or the other and that only from 8 May 1981, he was able to move about. The affidavit referred to the production of three medical certificates along with the same.

4. All the medical certificates have been issued by one Dr. S. Pavunraj, Registered Medical Practitioner at Eriodu. The first certificate bears the date 20 July 1980, according to which the second respondent was advised to take bed rest for 12 weeks from that date as it was a case of “infecture hepatitis with jaundice.” The second certificate is dated 2 November 1980, according to which the second respondent had “Bronchutasis with chest pain” and he was taking treatment in the clinic of the doctor from 2 November 1980. The certificate advised him to take bed rest for six weeks from that day onwards. The third certificate is dated 18 December 1980 and he had “pulmonary tuberculosis !” He was advised bed rest for 18 weeks from that day onwards. The periods covered by the above three certificates did not include the period from 13 October 1980 to 1 November 1980, 8 December 1980 to 17 December 1980 and 24 April 1981 to 21 May 1981. There was absolutely no explanation on the part of the second respondent for not filing the appeal during any of those three periods.

4. The first respondent/appellate authority condoned the delay on the following reasons:

“Exhibits A1 to A3 medical certificates are issued by a doctor who is having a M.B.B.S Degree and a registered medical practitioner having register No. 29456. It is clear from the medical certificates exhibits A1 to A3 issued by a responsible doctor who is a registered medical practitioner and who is possessing a M.B.B.S degree that the appellant was continuously ill and in the meanwhile he has sent an appeal petition to the respondent on 6 September 1980 by registered post but there was no reply. This appeal approaching a Court of law for justice is a fundamental right and justice cannot be denied merely on the ground of limitation. In a case reported in 1962-II L.L.J 611, it is observed ‘redress in respect of fundamental right delay held immaterial and irrelevant in entertaining petition on merits.’ Further in a case reported in 1979-I L.L.N 6, the Supreme Court held that ‘obsessions with the technicalities of law and procedural requirements must be pushed in the background while dealing with industrial matters.’ Further in case reported in 1975-I L.L.N 238, the Madras High Court has held that starting point of limitation is from the date of appellate order. In this case the appellant appealed to the respondent on 6 September 1980, but no reply was received from the respondent. Further time-limit of 30 days is prescribed only in the rules and the Act does not contemplate such a time.”

5. Though we are not impressed with the genuineness of the medical certificates produced by the second respondent, we cannot interfere with the acceptance of the same by the first respondent as we are exercising jurisdiction under Art. 226 of the Constitution only. We will accept the finding of the first respondent that the second respondent was ill during the periods covered by the three medical certificates. However, the first respondent was clearly in error in holding that the second respondent was continuously ill during the whole period after the receipt of the dismissal order by him. That finding is not in any way supported by the three medical certificates. There is absolutely no evidence to show that he was continuously ill for the entire period. In fact, the admission made by the second respondent in his affidavit that he started moving about in October 1980, has not even been referred to by the first respondent in his order. Apart from this, the three medical certificates themselves show that except for the periods mentioned therein, the first respondent was quite hale and healthy. After all, the medical certificates merely referred to the illness diagnosed by the doctor and the advice given by the doctor to the second respondent for taking rest for particular periods. That does not mean that the second respondent was ill throughout the periods mentioned in the certificates. Even assuming that he was so ill during those periods, there is absolutely nothing on record to show that he was ill even during the periods not covered by the certificates. Hence the first respondent is wrong in assuming that the second respondent was continuously ill for the entire period.

7. The second reason given by the first respondent for accepting the case of the second respondent is that the second respondent had sent an appeal petition to the writ-petitioner on 6 September 1980 by registered post, but there was no reply by the writ-petitioner thereto. There is no evidence whatever on record to substantiate this part of the case of the second respondent. No copy of the alleged appeal petition has been produced by the second respondent. It is stated in the evidence of the second respondent that his brother-in-law sent the appeal petition by registered post on 6 September 1980. In the re-examination he improved the version by: saying that his brother-in-law had sent the appeal petition from his own place, viz., Irulappapura (Nagercoil) and that the registration number was 527. No steps were taken to summon the records from the post office to prove that a letter was sent by registered post addressed to the writ-petitioner. The second respondent has not filed either the postal receipt or the acknowledgment. In the absence of examination of the second respondent's brother-in-law and in the absence of production of any record to prove that the second respondent sent an appeal to the writ-petitioner, the first respondent was not entitled to assume that there was an appeal to the writ-petitioner sent by the second respondent on 6 September 1980, and that there was no reply by the writ-petitioner thereto.

8. The third reason given by the first respondent is that as a fundamental right, the second respondent can approach a Court of law for justice and justice cannot be denied merely on the ground of limitation. The first respondent has chosen to place reliance on certain observations made in Bhagwant Singh… v. Union Of India…. [A.I.R 1962 Pun. 503], and Hindustan Tin Works, Ltd. v. Employees of Hindustan Tin Works (Private), Ltd., [1979-I L.L.N 6]. The first respondent failed to note that the two cases did not have any bearing on the question to be decided by the first respondent. Once there are rules prescribing a period of limitation for preferring an appeal under the provisions of the Act, then those rules have to be obeyed by the concerned parties. If a party wants to get over the rules, he must have sufficient explanation therefor and unless such explanation is tendered, it is not open to any Court to say that interests of justice would require the Court to ignore rules of limitation.

9. Another reason given by the first respondent is that the starting point of limitation has been held by this Court in Syndicate Bank v. R. Muniraj [1975-I L.L.N 238] (vide supra), to be the date of the appellate order. In that case the General Manager of Syndicate Bank terminated the services of the concerned employee, who filed an appeal to the Custodian. The appeal was dismissed by the Custodian and the employee preferred an appeal to the Authority under the Tamil Nadu Shops and Establishments Act. The question was whether the limitation started to run from the date of the original order passed by the General Manager or from the date of the appellate order passed by the Custodian. Ismail, J., held that the starting point of limitation for appeal under the Act was the date of communication of the order of the appellate officer, who was the Custodian of the bank. That case has nothing to do with the facts of the present case. We have already held that the factum of preferring an appeal by the second respondent to the writ-petitioner has not been established. In the absence of any appeal against the order of dismissal, dated 7 July 1980, starting point of limitation for preferring an appeal is the date of service of the said order, viz., 11 July 1980. No later date can be said to be the starting point of limitation.

10. The last reason given by the first respondent is that the time limit of thirty days for preferring an appeal is prescribed only in the rules and the Act does not contemplate such time-limit, What exactly is meant by this reasoning is not clear. However, the reason is clearly fallacious. Section 41(2) prescribes that the person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. The section itself refers to the prescription of a time-limit for filing an appeal under the section. Section 2(13) defines that “prescribed” means prescribed by rules made under the Act.

11. Under S. 49 of the Act, the State Government is empowered to make rules to carry out the purposes of the Act. Under Sub-sec. (4) of S. 49, all rules made under the section shall be published in the Fort St. George Gazette and on such condition they shall have effect as if enacted in this Act. [emphasis supplied.] Sub-section (4) of S. 49 makes it clear that the rules framed under the section will be on par with the provisions of the Act itself. The first respondent has ignored these provisions contained in the Act itself and chosen to think erroneously that the prescription of time-limit in the rules will not have any force as the Act does not contemplate such time-limit. The Act contemplates prescription of time-limit for filing an appeal as pointed out above.

12. The Tamil Nadu Shops and Establishments Rules, 1948, have been framed in exercise of the powers conferred by Sub-sec. (1) of S. 49 of the Act. Under rule 9(1), any appeal under Sub-sec. (2) of S. 41 shall be preferred by the person employed within thirty days from the date of service of the order terminating the services and such service shall be deemed to be effective if carried out either personally or if that be not practicable, by prepaid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary course of post. There is no dispute in this case as regards the date of service of dismissal order, viz., 11 July 1980. According to the proviso to sub-rule (1), an appeal may be admitted after the said period of thirty days if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period. It is only under that proviso, the’ appellate authority gets the power to condone the delay in preferring an appeal. The appellate authority cannot, therefore, ignore the main rule which prescribes the period of limitation.

13. Learned counsel for the second respondent invited our attention to the dicision of Himachal Pradesh High Court in Mangal Chand v. Forest Department, Kinnaur [1985-I L.L.N 922]. The following observations made in Para. 6, at page 295, in that case are relied upon by the learned counsel.

“In Union of India v. Ram Charan [A.I.R 1964 S.C 215], certain pertinent observations are made with regard to the nature of proof required for establishing the suggested ‘sufficient cause’ in a proceeding under Order 22, rule 9 of the Code of Civil Procedure of setting aside abatement and those observations would apply with equal force to any other proceeding where such cause is to be established. It was there observed:

‘The provisions of the code are with a view to advance the cause of justice… the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be overstrict in expecting such proof of the suggested cause as it would expect for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined, while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.’

It is pertinent to point out in this connection that Courts, Tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might result in injustice by a meritorious case being thrown out without trial, condonation of delay would at the highest result in decision of the case on merits. Further more, no litigant ordinarily stands to benefit by instituting a proceeding beyond time and there is no presumption that the delay has been occasioned deliberately or on account of culpable negligence or that there was want of bona fides. The presumption, if any, would be just the other way round. Pedantic and unpragmatic approach should not be made to the matter and the Court need not be over-strict is expecting proof of the suggested sufficient cause…”

14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the concerned party may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallcious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.

15. Learned counsel would place considerable reliance on the following observations made by the Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji [(1987) 1 SCC 677 : A.I.R 1987 S.C 1153]:

“3. The Legislature has conferred the power to condone delay by enacting S. 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits.’ The expression ‘sufficient cause’ employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice — that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principles as it is realised that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone the delay can result in a meritorious matter being thrown out 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 approach should be made. Why not every hour's delay, every second'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 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. A. litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

16. The observations made by the Supreme Court have to be understood in the context of the facts of that case. It is seen from the facts that there was a delay of four days in the matter of preferring an appeal by the Government with respect to an acquisition of lands for a public purpose to the extent of nearly 14 lakhs rupees. In that context, the Supreme Court held that the delay should be condoned and Courts should not be zealous in dismissing petitions for condonation of delay on technical grounds. The Supreme Court has clearly pointed out in Sreenivasa General Traders, etc. v. State of Andhra Pradesh [(1983) 4 SCC 353 : A.I.R 1983 S.C 1246], that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found and observations which were really not necessary for purposes of the decision and go beyond the occasion have no binding authority, though they may have merely persuasive value.

17. The propositions contained in the observations extracted above will not apply to the facts of the present case. It is contended by learned counsel for the second respondent that refusal to condone the delay in this case will result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. We do not agree. If a litigant has chosen to come to Court after considerable delay for which he has no explanation, he has to blame himself for his matter being thrown out without the merits being considered. He cannot make a complaint that the cause of justice has been defeated because of his own delay. No litigant can take advantage of his own fault and demand a premium therefor. It is next argued that 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 vested right in injustice being done. This argument is based upon an unwarranted presumption that the other side is claiming a vested right in injustice. When the matter has not been gone into on merits, there is no question of taking the view that the other side is taking advantage of a vested right in injustice. It is a matter which can be decided only where merits are considered on the basis of evidence. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?

18. Of course there is no presumption that the delay is occasioned deliberately or on account of culpable negligence. If the admitted facts in this case are taken into account, there is no doubt that the delay on the part of the second respondent is deliberate and the second respondent is clearly guilty of culpable negligence. If he is not able to explain his failure to file the appeal during the periods during which he had been admittedly not ill, there is no question of holding that the delay is not deliberate. When admittedly the second respondent could travel a distance of about 350 kms. to Nagercoil from his residence what prevented him from going to the appellate authority stationed at Madurai, just 35 kms. away from his abode? We will not countenance the thwarting of the statutory rules with impunity by a litigant.

19. Learned counsel submitted that this Court should not interfere with the findings on preliminary issue in industrial matters. Reliance is placed upon the judgment of the Supreme Court in Cooper Engineering, Ltd. v. P.P Mundhe [1975-II L.L.N 321] and Maheswari (D.P) v. Delhi Administrative [1984-I L.L.N 1]. In the former case it was laid down that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry is vitiated by any defect. The Supreme Court has observed as follows in Para. 22, at page 327 of 1975—II L.L.N:

“… On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court…”

Pausing there for a moment, the ruling of the Supreme Court is clear that the management has to decide whether it should adduce evidence before the Labour Court or not only after a finding is given by the Labour Court on the preliminary issue. However, the Supreme Court hastened to add that normally the finding of the Labour Court on the preliminary issue should not be allowed to be challenged in a writ petition at that stage itself. According to that decision, that finding could be agitated at the final stage after the final award is passed if the management thinks fit to question that decision. The Supreme Court has further observed as follows in Para. 22, at page 327 of 1975—II L.L.N:

“… We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award…”

In the latter case, the Supreme Court has observed as follows in Para. 1, at page 2 of 1984—I L.L.N:

“It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceeding before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decisions on issues more vital to them. Articles 226 and 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special Tribunals at interlocutory stages and on preliminary issues.”

20. The observations extracted above in both the cases pertain only to preliminary issues, which have a bearing on the decision of the dispute on merits. In other words, the question whether the domestic enquiry held by the management was a proper enquiry or not was a matter which had to be decided as part of a decision on the merits of the case. It will be one of the issues in the main case to be decided by the Labour Court. If the Labour Court comes to the conclusion that the domestic enquiry was not properly held and that it was vitiated by some factor or the other, then the question whether the management could adduce further evidence and whether the termination of the services of the concerned employee was justified on the basis of the evidence available before the Labour Court was to be considered. Those two decisions will not apply to the present case where the decision was one on limitation.

21. In this case, the second respondent filed an application for condonation of delay. Unless that application was ordered, there was no question of the appeal preferred by the second respondent being taken on file by the first respondent. Hence, the first respondent had necessarily to consider whether the delay in preferring the appeal should be condoned or not. He had decided the application for condonation of delay.

22. The management is not precluded from challenging that decision before us. If as in this case we come to the conclusion that the condonation of delay was wholly unjustified, then there would be no need for any further proceedings before the first respondent. If, on the other hand, this Court comes to the conclusion that the delay had been properly condoned, then only the question of further proceedings before the first respondent would arise. To apply the dictum of the Supreme Court in the aforesaid two cases to this case, would mean that the management would have to wait for years for the conclusion of the proceedings before the Labour Court to get the decision on the question of limitation canvassed before us. That would be really putting the cart before the horse.

23. Hence, in our view, this is a case in which the management is entitled to approach us under Art. 226 of the Constitution of India challenging the condonation of the delay, and we are equally entitled to interfere with the decision if we find that it is not justified on the facts and circumstances of this case.

24. Learned counsel for the second respondent placed reliance on the decision of a Division Bench of this Court in Tiruchirapalli Co-operative Wholesale Stores v. Assistant Commissioner of Labour, Tricky, in Writ Petition No. 104 of 1983. That judgment was rendered on 14 September 1989. The judgment has been placed before us. We find that the Appellate Authority under the Act in that case, had accepted the bona fides of the explanation given by the second respondent in that case. The Division Bench observed that the first respondent therein found sufficient cause for the delay and condoned the same, and sitting in writ jurisdiction, the learned Judges were not persuaded to interfere with the discretion exercised by the first respondent in that matter. The decision of the Division Bench turned entirely on the facts of that case and that will have no bearing on this case.

25. We have already found that the order of the first respondent is wholly unjustified and is not warranted by the evidence on record. Even on the footing that the acceptance of the entire evidence placed by the second respondent before the Court is correct, we are of the view that there is no explanation for the inordinate delay in filing the appeal. There is no explanation for not preferring the appeal during one of the periods in which he was not ill. When there is “no cause” for the delay it cannot be treated as “sufficient cause.”

26. Learned counsel for the second respondent vehemently contended that the second respondent is a poor dismissed employee and his case should be viewed with compassion. In our opinion, rules of limitation are not different for poor man and rich man. The law has to be applied equally whether the concerned litigant is rich or poor. Hence, this contention cannot be accepted.

27. In these circumstances, the writ petition has to be allowed. We allow the writ petition and quash the order of the first respondent, dated 31 August 1982, made in Tamil Nadu Shops and Establishments Case No. 22 of 1981. Having regard to the fact that the second respondent is an employee, we make no order as to costs.