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Case Number

Appeal from Original Order No. 283 of 1975

Attorney(S)

For Appellant.— Sri P.P Ginwalla with Sri Arijit Chowdhury.
Sri Sunit Krishna Dutt.

Judges

Sri Sankar Prasad Mitra, C.J
Sri Salil Kumar Datta, J.

Acts

S. 10(1)(d) of the Industrial Disputes Act, 1947,
S. 36(1) of the Industrial Disputes Act, 1947,
S. 36 of the Industrial Disputes Act, 1947,
INDUSTRIAL DISPUTES ACT 1947
S. 33C(2) of the Industrial Disputes Act
S. 2(k) of the Industrial Disputes Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

On 31 January 1968 twenty-two workmen were dismissed by Oil India Ltd., Duliajan, Assam. On 27 January 1971 the Central Government referred an industrial dispute under S. 10(1)(d) of the Industrial Disputes Act, 1947 to the Central Government Industrial Tribunal, Dibrugarh, asking whether the dismissal of thirteen specified workmen was justified and, if not, what relief they were entitled to from the dates of dismissal. Prior to the reference, on 14 December 1970 some of the workmen (identified in the opinion as workmen nos. 2, 5, 8, 10 and 12) filed an application under S. 33C(2) before the Central Government Labour Court, Assam, to compute entitlements as if they had not been dismissed.

The Industrial Tribunal (Dibrugarh) published an interim award dated 13 June 1972 in which it stated it would "refrain from adjudicating" the disputes in respect of workmen nos. 2, 5, 8, 10 and 12 because those workmen had submitted to the jurisdiction of the Labour Court. The Labour Court later held the application under S. 33C(2) premature and dismissed it on 26 August 1972. The workmen sought review of the interim award before the Industrial Tribunal on 8 December 1972. By order dated 16 October 1974 the Government of India transferred the proceedings to the Central Government Industrial Tribunal at Calcutta to proceed from the stage at which they were transferred. The workmen withdrew their review application on 31 January 1975. The Tribunal at Calcutta fixed the hearing to take place at Dibrugarh on 17 March 1975.

On 10 March 1975 one of the workmen (respondent 2 / workman no. 5) moved the High Court under Article 226 to quash the interim award of 13 June 1972; a rule nisi issued (Matter No. 74 of 1975). On 23 June 1975 the High Court (A.N. Sen, J.) made the rule absolute, quashed the interim award and directed the Tribunal to proceed expeditiously. The company appealed against that High Court order to the Division Bench whose judgment is summarized in this opinion. The Division Bench gave the Tribunal liberty to proceed with the hearing but directed that the Tribunal should not publish its award until the disposal of the appeal.

Legal Issues Presented

Whether an Industrial Tribunal can lawfully "refrain from adjudicating" a dispute referred to it by the appropriate Government (i.e., whether the Tribunal may decline to adjudicate parts of a reference and thereby avoid exercising its statutory jurisdiction).
Whether the industrial dispute as to particular dismissed workmen ceases to be an "industrial dispute" under S.2(k) merely because the trade union that originally sponsored the collective dispute withdraws representation of those particular workmen.
Whether workmen who are not union members have a right under S.36(1)(c) to be represented by other workmen or office-bearers, and whether the Tribunal may deny or take away that right.
Whether the High Court (Calcutta) had jurisdiction under Article 226 to issue writs in relation to the Tribunal's interim award, given the transfer of the proceedings and the location of records.
Whether the delay in seeking writ relief (the interim award dated 13 June 1972; writ moved 10 March 1975) disentitled the workmen from relief or barred exercise of the Court's discretion to issue relief.

Arguments of the Parties

Appellant's (Oil India Ltd.) Arguments

The trial court (High Court) improperly interfered with the discretion exercised by the Industrial Tribunal; if the Tribunal after considering relevant materials decided not to grant relief to the workmen, the High Court should not have interfered with that discretion.
The Tribunal had not said it had no jurisdiction; rather, it had considered the matter and decided not to grant relief — interference with such an exercise of discretion was unjustified.
Where a dispute is collective and sponsored by a union, if certain workmen cease to be represented by the union the collective dispute in respect of those workmen comes to an end and they cannot continue to avail themselves of the benefits of the proceedings.
The High Court lacked jurisdiction to issue a writ of certiorari because (it was contended) the records were not within the territorial jurisdiction of that Court.
There had been an unreasonable delay in moving the writ petition (from June 1972 to March 1975) and in view of the conduct of the workmen the Court should have refused to entertain the petition.
In rejoinder (Sri Chowdhury), it was asserted that the Tribunal had in fact exercised its jurisdiction by adjudicating that the workmen concerned were not entitled to relief (i.e., that the Tribunal had reached a substantive decision on relief rather than refusing to adjudicate).

Respondents' (Workmen) Arguments

The interim award of 13 June 1972 unlawfully deprived the workmen of their right to have the Tribunal adjudicate the dispute referred by the Government; the Tribunal's statement that it would "refrain from adjudicating" in respect of certain workmen was a failure to discharge its statutory duty.
Even if the union ceased to represent some workmen, the industrial dispute did not cease to be an industrial dispute merely for that reason; the reference existed when made and continued to be an industrial dispute for the referred workmen.
Workmen who are not union members are entitled under S.36(1)(c) to be represented by other workmen or authorized representatives; the Tribunal could not deprive them of that statutory right to representation.
The High Court had territorial jurisdiction to issue writs because the proceedings had been transferred to the Central Government Industrial Tribunal at Calcutta and the records were to be kept at its Calcutta office.
Delay was explained by the fact that a review petition had been filed and later withdrawn; the delay did not make the claim stale nor did it result in accrual of rights to others that would make relief unjust.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna [A.I.R. 1961 S.C. 857]	Principle that an individual dispute cannot be an industrial dispute under S.2(k) unless taken up by a union or a considerable number of workmen; the union (or those who sponsored the dispute) have a say in conduct of proceedings and representation should ordinarily continue throughout unless exceptional circumstances exist.	The Court cited this authority to frame the discussion on collective disputes and representation; it acknowledged the principle but found the present facts distinguishable because the Tribunal record showed that the union agreed not to represent certain workmen and those workmen had sought separate representation and filed pleadings.
Central Provinces Transport Service Ltd. v. Raghunath Gopal [A.I.R. 1957 S.C. 104]	Earlier authority on the nature of what constitutes an industrial dispute and the role of union sponsorship in converting an individual dispute into an industrial dispute.	Referred to as part of the doctrinal background supporting the need for union sponsorship to create a collective industrial dispute; used in the Court's analysis of whether the dispute continued as an industrial dispute for those workmen.
Binny Ltd. v. Their Workmen [(1972) 3 SCC 806 : A.I.R. 1972 S.C. 1975]	Holds that a dispute already referred by the Government does not cease to remain an industrial dispute in respect of part of it merely because the union did not choose to represent the case of a particular dismissed employee; the referral remains a dispute notwithstanding the union's subsequent choice.	The Court applied this principle directly to conclude that the union's decision not to represent particular workmen did not terminate the industrial dispute as to those workmen and thus did not justify the Tribunal's refraining from adjudicating.
Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi [99 I.T.R. 148]	Establishes that a writ of certiorari under Article 226 is discretionary and will not issue as a matter of course; factors to consider include petitioner conduct, whether injustice is suffered, and whether granting relief would itself cause injustice.	The Court invoked this authority to explain the discretionary approach to certiorari and to analyze whether the workmen's conduct or other factors should disentitle them to relief; it concluded that despite some misconceived acts by the workmen, the interim award caused grave injustice warranting interference.
Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317 : A.I.R. 1974 S.C. 259]	Affirms that refusal to entertain a belated or stale claim is a matter of judicial discretion and not an absolute rule; delay may be condoned where rights of others have not accrued and a reasonable explanation exists.	The Court relied on this authority to exercise its discretion in the present case and to hold that the delay in moving the writ did not preclude relief because the claim was not stale, no rights of others had accrued, and proceedings before the Tribunal were still pending.

Court's Reasoning and Analysis

The Court proceeded by a close statutory and factual analysis driven by the following steps (as reflected in the opinion):

Statutory duty to adjudicate: The Court began by identifying the statutory framework (S.7A and S.10(1)) which obliges the appropriate Government to refer disputes and requires the Tribunal to adjudicate disputes referred to it. On that basis the Tribunal has a legal duty to adjudicate the matters referred and to grant such relief as it thinks fit.
Interim award characterized as abdication: The Tribunal's interim award stated that it "felt that it should refrain from adjudicating" the matters in respect of particular workmen. The Court held that such refraining amounted to a failure to discharge the statutory function of adjudication and was therefore patently without jurisdiction. The Court distinguished between a Tribunal declining to grant relief after adjudication (permissible in appropriate cases) and declining to adjudicate at all (not permissible).
Effect of union withdrawal of representation: The Court considered the appellant's contention that the collective dispute ceases as to workmen who cease to be union members. Relying on precedent (including Binny Ltd.), the Court concluded that a dispute referred by the Government does not cease to be an industrial dispute for a portion thereof merely because the union chose not to represent some dismissed employees. Therefore the union's withdrawal did not justify the Tribunal's refusal to adjudicate.
Right of representation under S.36: The Court examined S.36(1)(c) and noted that a non-union workman is entitled to be represented by another workman or an office-bearer authorized in the prescribed manner. The record showed that after the union disavowed representation for certain workmen those workmen filed written statements and rejoinders and sought representation. The Court held that the Tribunal could not deprive these workmen of their statutory right to representation; permitting separate representation in these circumstances amounted to an exceptional circumstance which the Tribunal should have allowed rather than using the union's withdrawal to refuse adjudication.
Appropriateness of certiorari and discretionary considerations: The Court considered the discretionary nature of writ relief (Vashist Bhargava) and the factors that might disentitle a petitioner (conduct of petitioner; absence of injustice; grant of relief causing injustice). Although the workmen had pursued a misconceived application under S.33C(2) that was later dismissed, the Court found that the interim award caused great injustice by depriving the workmen of their right to representation and adjudication. On balance the discretionary factors supported granting certiorari.
Territorial jurisdiction to issue writs: The appellant's objection as to lack of High Court jurisdiction was rejected. The Court relied on the fact that the Central Government had transferred the proceedings to the Central Government Industrial Tribunal at Calcutta and that the records were to be preserved in Calcutta. Thus the High Court had territorial jurisdiction to issue the writs.
Delay and its impact: The Court addressed the delay (application moved on 10 March 1975 against an interim award dated 13 June 1972) and applied the principle that delay is a discretionary ground for refusal (Ramchandra Deodhar). Given the pending nature of Tribunal proceedings, the withdrawal of the review petition only shortly before the writ, and the absence of rights accruing to others or staleness of claim, the Court exercised its discretion to condone the delay and to entertain the petition.

Holding and Implications

Holding: For the reasons indicated in the opinion, the Division Bench held that the appeal by the appellant (Oil India Ltd.) fails and is dismissed. The Court found the interim award (insofar as it refrained from adjudicating the disputes of certain workmen) to be in excess of jurisdiction and liable to be quashed by appropriate writs where conditions warrant.

Direct consequences and orders stated in the opinion:

There will be no order as to costs.
All interim orders are vacated.
All parties including the Tribunal are to act on a signed copy of the minutes on the usual undertaking of the advocate on record for the respondents to have the order drawn up, completed and filed.
The prayer for a stay (asked on behalf of the appellant) is refused.

Implications beyond the parties:

The opinion applies established statutory principles (S.7A, S.10, S.36) and precedents about representation and the nature of an industrial dispute to the facts. The Court did not purport to lay down a novel rule of law; the decision enforces the Tribunal's statutory duty to adjudicate referred disputes and confirms that a union's withdrawal of representation does not automatically terminate a referred dispute for the affected workmen. This opinion's effect, as recorded, is limited to the direct effect on the parties and the proceedings described above.

Concurring view: Sankar Prasad Mitra, C.J., recorded agreement with the judgment.

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Oil India, Ltd. v. Central Government Industrial Tribunal, Dibrugarh, (By G.N Borah, Presiding Officer), And Others

Salil Kumar Datta, J.:— On 31 January, 1968, twenty-two workmen were dismissed by the appellant Oil India, Ltd., Duliajan, Assam. On 27 January, 1971, the Central Government made a reference under S. 10(1)(d) of the Industrial Disputes Act, 1947, to Sri G.N Borah, Presiding Officer, Central Government Industrial Tribunal, Dibrugarh, for adjudication of the following industrial dispute:

“Whether the action of the management of Oil India, Ltd., Duliajan, in dismissing the following thirteen workmen is justified? If not, to what relief are the workmen concerned entitled to from the dates of their dismissal?”

2. It may be mentioned here that out of twenty-two workmen dismissed the reference was only made in respect of thirteen workmen mentioned in the order of reference.

3. Prior to the order of reference, on 14 December, 1970, respondent 2 and another acting on behalf of themselves being workmen 2 and 5 as also three others being workmen 8, 10 and 12 in the order of reference filed an application before the Central Government Labour Court, Assam, under S. 33C(2) of the Industrial Disputes Act for computing their entitlements as if they were never dismissed. When this application was pending, the Central Government Industrial Tribunal to whom the reference was made as aforesaid published an interim award on 13 June, 1972, holding that it would refrain from adjudicating the dispute of workmen 2, 5, 8, 10 and 12 as they voluntarily submitted to the jurisdiction of a Court which was capable of giving adequate relief to their grievances. Thereafter, on 26 August, 1972, the Labour Court held that the application made before it under S. 33C(2) of the said Act was premature in view of the pending reference before the Industrial Tribunal and the application was accordingly dismissed by the Labour Court. An application for review of the aforesaid interim award was filed by the workmen concerned on 8 December, 1972, before the Industrial Tribunal to which the appellant-company filed opposition and rejoinder was also filed by the workmen. By an order, dated 16 October, 1974, the Government of India, in exercise of powers under Ss. 7A (1) and 33B of the Act, withdrew the proceedings before the said Industrial Tribunal and transferred the same to Sri E.K Moidu, Presiding Officer, Central Government Industrial Tribunal, Calcutta, for disposal of the said proceeding with the direction that the said Tribunal would proceed with the proceedings from the stage at which it was transferred to it and to dispose of the same according to law. Thereafter, the Central Government Industrial Tribunal at Dibrugarh, before whom the reference was so pending directed by its order, dated 11 November, 1974, the transfer of the records of the reference to the Presiding Officer, Central Government Industrial Tribunal at Calcutta, as directed by the Central Government order mentioned above On 31 January, 1975, the workmen concerned withdrew the review application. The Central Government Industrial Tribunal at Calcutta, by the notice of 17 February, 1975, intimated the date of hearing of the reference at Dibrugarh, on 17 March, 1975. On 10 March, 1975, respondent 2 being the workman 5 moved an application in this Court under Art. 226 of the Constitution praying for quashing the interim award passed by the Central Government Industrial Tribunal on 13 June, 1972, as already stated. On this application, a rule nisi was issued by this Court giving rise to Matter No. 74 of 1975. This matter was disposed of by A.N Sen, J., by the judgment and order, dated 23 June, 1975, whereby the rule nisi was made absolute and the interim award of 13 June, 1972, was set aside and quashed. The Court further directed that the Tribunal was to proceed with the reference expeditiously.

4. The company preferred this appeal against the aforesaid decision and in the said appeal, this Court gave liberty to the Tribunal to proceed with the hearing of the reference with the direction that the Tribunal would not publish its award till the disposal of this appeal.

5. Sri Ginwalla and later on Sri Arijit Chowdhury learned counsel for the appellant have taken various grounds in support of the appeal. The first submission is that the trial Court has interfered with the discretion properly exercised by the Tribunal in holding that the workmen having regard to their conduct were entitled to no relief. According to Sri Ginwalla in view of the proper exercise of the jurisdiction by the Tribunal on due consideration of relevant materials, the trial Court was not justified in interfering with the exercise of discretion by the Tribunal which should not have been interfered with. Sri Ginwalla submitted that the Tribunal had not said that it has no jurisdiction to grant the relief but having considered all aspects, the Tribunal was not inclined to grant any relief to the workmen concerned. We may refer to the relevant portion of the interim award of the Industrial Tribunal which runs as follows:

“The Tribunal feels that it should refrain from adjudicating the matters mentioned in this reference in respect of the following workmen in the schedule, workmen serials 2, 5, 8, 10 and 12 for reasons stated above, and this reference is answered accordingly in respect of these workmen.”

6. Under S. 7A of the Industrial Disputes Act, 1947, the appropriate Government may constitute one or more Industrial Tribunals for adjudication of industrial disputes relating to any matter specified in Sch. II or Sch. III thereof. Section 10(1) provides that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute or any matter connected with, or relevant to, the dispute, to a Tribunal for adjudication.

7. It will, therefore, be clear from the above provisions that the Tribunal in law is under a statutory obligation to adjudicate the disputes referred to it by the appropriate Government. This function of the Tribunal has to be discharged by it in accordance with the procedure laid down in the Act and the rules framed thereunder. The Tribunal, accordingly, is also under a statutory obligation on adjudication of the dispute to grant such relief as it may think fit and proper. It may be that in a proper case the Tribunal may hold that even if the dismissal was not justified the workmen are not entitled to any relief in view of their conduct or such relevant factors. But the Tribunal has to exercise the jurisdiction conferred on it by making an adjudication and such adjudication cannot be avoided or relinquished.

8. In the interim award it would appear that the Tribunal had stated that in view of the pendency of the application under S. 33C(2) of the Act, which was subsequently dismissed as not maintainable though not on merits, and the workman concerned having elected to seek their relief before the Labour Court, which was capable of giving such relief, the Tribunal felt that it should refrain from adjudicating the matters referred to in this reference in respect of the aforesaid workmen. This, in our opinion, constitutes failure to discharge the statutory function by the Tribunal conferred on it by law, and such action accordingly cannot be sustained. The conduct of the workmen or their harassing tactics as alleged by Sri Ginwalla may be a relevant consideration in so far as the grant of relief is concerned but that does not imply that the Tribunal, for that reason, even if be correct, which is not the case here can refrain from adjudicating the dispute referred to him under the said Act. Sri Chowdhury in his rejoinder said that the Tribunal had in fact exercised its jurisdiction as it has adjudicated that the workmen concerned are not to be entitled to any relief in the proceedings. Unfortunately, that is not the decision of the Tribunal which we have quoted in the earlier part of the judgment wherein the Tribunal expressly said that it refrained from adjudicating the matters mentioned in the reference in respect of the said workmen for certain reasons. The impugned award accordingly was patently without jurisdiction and calls for issuance of appropriate writs, if other conditions are satisfied, as contended by Sri Dutt learned counsel for the concerned workmen.

9. Sri Ginwalla next contended that the dispute contemplated under the Industrial Disputes Act, 1947, is a collective dispute with the management on one side and the workmen on the other sponsored and supported by the union representing such workmen. If, therefore, certain workmen in course of proceedings cease to be represented by the union in terms of the reference, the collective dispute in so far as these workmen are concerned comes to an end and they cannot avail of the benefits of the proceedings contemplated under the said Act. Reliance was placed on the decision in the case of Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna [A.I.R 1961 S.C 857], in which the Court referred to the earlier decision in Central Provinces Transport Service, Ltd. v. Raghunath Gopal [A.I.R 1957 S.C 104], laying down the well-settled principle that a dispute between an individual workman and an employer cannot be an industrial dispute as defined in S. 2(k) of the Industrial Disputes Act unless it is taken up by an union of the workmen or by a considerable number of the workmen. The Court further observed as follows:

“The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute, can, therefore, claim to have a say in the conduct of the proceedings before the Tribunal.”

10. The Court further observed that the ordinary rule should be that such representation by an officer of the trade union should continue throughout the proceedings in absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workmen concerned. In this case in the connected industrial dispute the union which took up the case of the workman filed certain terms of settlement on the basis whereof an award was passed. Thereafter, the workman who was a member of the union till the date the award was passed wanted to reopen the award which was refused by the Tribunal and the order was approved by the Court as it found that there was no exceptional circumstances to interfere nor was the interest of the workman overlooked.

11. In this case before us, it is to be seen that after the Tribunal had issued notice to the parties pursuant to the order of reference of 27 January, 1971, the workmen concerned by their letter, dated 30 March, 1971, informed the Tribunal that they were no longer the members of the union and notices were to be issued to them individually. Such notices were accordingly issued by the Tribunal and the written statements were filed on behalf of the workmen 2 and 5 as also the union. The union also by the letter of 20 April, 1971, informed that it would not represent the case of the said workmen but it would represent the case of others. It would further appear that the written statements thereafter were filed by all the said workmen while the union filed the written statement separately for other workmen and there were additional written statements and the rejoinders filed by the parties before the interim award was passed.

12. The contention is that since certain workmen went out of the union, the dispute in so far as such workmen are concerned ceased to be an industrial dispute and they had no further right to proceed in this proceeding. The Supreme Court in the case of Binny, Ltd. v. Their workmen [(1972) 3 SCC 806 : A.I.R 1972 S.C 1975], observed as follows:

“The union further undertook not to represent Kuppuswamy's case or prosecute it before the Labour Court in view of this overall settlement with the management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1963 has any application to the facts before us. We do not, however, see any reason to hold that the dispute which had already been referred by the Government should cease to be one in respect of a portion of it merely because the union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would not cease to be one merely because the claim of some of the dismissed employees settled by mutual agreement.”

13. Applying the above principle to the facts of this case it would obviously appear that even if the union did not want to represent the case and in fact did not represent the case of some workmen the dispute thereby did not cease to be an industrial dispute only for that reason as has been noticed by the Supreme Court that the union did not choose to represent such workmen. The industrial dispute was there when the reference was made and at no point of time the union did say or it has been found by the Tribunal that the union took the position that there was no such industrial dispute in so far as the concerned workmen were concerned.

14. Further S. 36 of the Industrial Disputes Act, 1947, provides the right of representation of the workmen in such disputes. In S. 36(1) of the Industrial Disputes Act, 1947, it is provided as follows:

36. Representation of parties.— (1) A workman who is a party to a dispute shall be entitled to be represented in any proceedings under this Act by—

(a) any member of the executive or other office-bearer of a registered trade union of which he is a member;

(b) any member of the executive or other office-bearer of a federation of trade unions to which the trade union referred to in Cl. (a) is affiliated; and

(c) where the worker is not a member of any trade union, by any member of the executive or other office-bearer of any trade union connected with, or by any other workmen employed in the industry in which the worker is employed and authorized in such manner as may be prescribed.”

15. The above section provides that if the worker is not a member of any trade union he will be entitled to be represented by any other workman employed in an industry in which the worker is employed and authorized in such manner as may be prescribed. We have seen that at the very initial stage of the proceedings before the Tribunal both the workmen concerned as also the union informed the Tribunal that such workmen would not be represented by the union in the proceedings. On the basis of that representation the workmen concerned were given due notice to file their written statements and they in fact filed their written statements as also additional written statements and it appears that rejoinders were also filed in the proceedings. This right of representation which is conferred on any workman who is not a member of the trade union obviously at material time by another workman employed in the industry or deemed to be so, cannot be taken away by the Tribunal as such action would be in gross violation of the provisions referred to above resulting in deprivation of the right of the workmen to be represented in accordance with the provisions of S. 36(1)(c). The position in this case constituted an exceptional circumstance for the Tribunal to permit separate representation of the workmen concerned through other workman of the industry. We, therefore, think that the workmen concerned were entitled to represent their case before the Tribunal through other dismissed workman of the industry who is such workman as defined in S. 2(s) under S. 36 and such right did not cease to exist merely because they were no longer represented by the union.

16. Sri Ginwalla referred to the decision in Vashist Bhargava v. Incometax Officer, Salary Circle, New Delhi [99 I.T.R 148], in support of the proposition that a writ of certiorari by the High Court under Art. 226 shall not issue as a matter of course. It does not follow as soon as some legal infirmity is shown by the petitioner in the impugned order. The Court has discretion to abstain from interference if—

(a) the conduct of the petitioner is such as to disentitle him to the relief;

(b) he has not suffered any injustice; or

In this case, as we have seen, the concerned workmen undoubtedly made a misconceived application before the Labour Court under S. 33C(2) of the Act which was dismissed as not maintainable in due course; but that by itself should be no reason to disentitle the workmen to the relief if we find that by reason of the order in the interim award the workmen are subjected to great injustice. By the order in the impugned award the petitioners have been deprived of their right to represent their case before the Tribunal as it has elected not to adjudicate on the dispute in respect of such workmen in gross violation of the provisions of the Act. We think that this present case is a fit case where all the conditions referred in the judgment are satisfied for issuance of appropriate writ and a writ of certiorari would otherwise be available to the workmen.

17. Sri Ginwalla has next contended that this Court has no jurisdiction to issue a writ of certiorari as the records of the case are not within its jurisdiction. This contention is wholly unacceptable. We have seen that by an order of the Central Government the entire proceedings had been transferred to the Central Government Industrial Tribunal at Calcutta which has its office well within the jurisdiction of this Court. It is stated that the Tribunal has fixed the case for hearing at Dibrugarh which is outside the jurisdiction of this Court. The Tribunal may fix the place of hearing outside the Court's jurisdiction for the purpose of adjudication, but the fact remains that as the adjudication has been transferred to the Central Government Industrial Tribunal at Calcutta all the records in connexion therewith will have to be kept and preserved at the office of the said Tribunal at Calcutta. Accordingly we are of opinion that this Court has jurisdiction to issue the writ of certiorari if the situation calls for such action.

18. The last contention on behalf of the appellant is that there has been long delay in moving this application, and in view of the conduct of the parties this Court should have refrained from entertaining the application filed by the concerned workmen under Art. 226 of the Constitution. We have seen that the impugned award was made on 13 June, 1972, and this application under Art. 226 was moved on 10 March, 1975, patently after a consider able length of time. The explanation of the workmen is that they had filed the application for review on 8 December, 1972 and the review petition was withdrawn on 31 January, 1975, obviously on the ground that the Tribunal has no power to review its judgment under the law. There can be no dispute that misconceived proceedings will not extend the period of limitation to the benefit of the defaulting party, but nonetheless the Courts have refused to condone the delay when the claim has become state by lapse of time and rights have accrued to others in the meantime. In Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317 : A.I.R 1974 S.C 259], relied on by Sri Dutta, it has been laid down that the rule which says that a Court may not inquire into a belated or a state claim it not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case when no rights of others have accrued for and there is reasonable explanation for the delay.

19. In this case the claim of the workmen has not become stale, nor any rights of others have accrued in view of the fact that the proceedings before the Tribunal are still pending for no fault of the workmen and it has already proceeded for adjudication in the meantime. Further, in the facts of the case as indicated above we think that delay should not stand as a bar to the grant of relief to the concerned workmen which they are unjustly deprived of by the impugned interim award in gross violation of the provisions of law.

20. For the reasons indicated above this appeal fails and is dismissed. There will be no order as to costs in the circumstances. All interim orders are vacated. All parties concerned including the Tribunal will act on a signed copy of the minutes upon the usual undertaking of the advocate on record for the respondents to have this order drawn up, completed and filed. An order for stay has been asked for on behalf of the appellant. We are informed that Sri Moidu, the Presiding Officer of the Tribunal, is retiring at the end of this month. In these circumstances, the prayer for stay is refused.

21. Sankar Prasad Mitra, C.J:— I agree.

Oil India, Ltd. v. Central Government I...