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Judgment
S. Nagamuthu, J.—The petitioner claims that he was appointed as an Assistant in Amudham Angadi, Athanoor Village, run by the Tamil
Nadu Civil Supplies Corporation, Nagapattinam Region, as per the order of the first respondent, in R.C. No. 26816/78-A3 dated 21.1.1979.
While so, the Manager (P&M), Tamil Nadu Civil Supplies Ltd., (hereinafter referred to as ''the T.N.C.S Ltd.,'') by his proceedings in
R.C.No.4929/83 ED dated 29.07.1983 issued Recovery Order to recover a total sum of Rs. 255.17 from the petitioner on the allegation that
shortage of rice, wheat and kerosene was noticed by the Assistant Manager (P&M) during his inspection on 28.7.1983. Thereafter, according to
the petitioner, he was placed under suspension. Subsequently, a charge memorandum was issued to the petitioner by the first respondent by his
proceeding in R.C.No.4929/83 ED dated 25.08.1983. As many as three charges were levelled against the petitioner which are as follows:--
Charge No. 1: As per the drawal registers maintained in the shop, commodities have been shown as supplied to the following family cards on the
dates noted against each. But no entries have been made in the concerned family cards.
Date of supply Family
as per family Card No.
cards
1/8/1983
2/2/1983
1/12/1983
20/3/1983 623861
14/7/1983
4/2/1983
3/2/1983 862888
22/7/1983
17/5/1983
19/3/1983
19/3/1983
2/8/1983
2/12/1983 862577
Charge No. 2
That he has sold the commodities shown to have been supplied to the family cards as mentioned in charge No. 1, in black market for his personal
benefit.
Charge No. 3:
That he has proved himself to that he is an un trust worthy employee of the corporation by committing malpractices.
For the said charges, the petitioner submitted his explanation on 26.8.1983. So far as the first charge is concerned, he submitted that since there
were about 700 card-holders attached to the shop in question, while discharging his duties, which involves distribution of essential commodities, by
making number of entries, measuring the commodities sold, etc., due to inadvertence, there would have been omission in making entries in some of
the family cards. So far as the second charge is concerned, he stated that he never sold the essential commodities in black market to any non-card
holder. As far as the third charge is concerned, he submitted that he did not commit any malpractice.
Thereafter, the Manager (P&M), held enquiry into the above charges. He submitted a report on 1.11.1983 holding that the petitioner is guilty of
all the charges. In the said enquiry report, he further recommended that the petitioner be terminated from service with effect from 18.8.1983.
Based on the same, the petitioner was dismissed from service. Thereafter, the petitioner approached the Labour Officer for conciliation. The
conciliation failed which is evidenced by the Failure Report dated 8.3.1996. Then, the petitioner raised the industrial dispute before the Labour
Court, Cuddalore in I.D. No. 34 of 1996 on 16.4.1996. In the claim statement filed before the Labour Court, the petitioner contended that his
termination from service was illegal as there was no enquiry held fairly and properly. He further submitted that the charges are false and there are
no materials to prove the said charges.
In the counter filed before the Labour Court, the first respondent contended that the petitioner was not a workman at all. He was only a Trainee
and, therefore, the provisions of the Industrial Disputes Act, are not applicable to him. It was further contended that the charges were properly
proved by means of evidence and based on the same, the petitioner was terminated from service by way of punishment. Therefore, according to
the first respondent, the petitioner''s termination from service cannot be interfered with.
Before the Labour Court, on the side of the petitioner, he was examined as W.W.1 and as many as 4 documents were exhibited. On the side of
the Management, one witness by name Mr. Jayaprakasam was examined and as many as 12 documents were exhibited. Having considered all the
above, the Labour Court held that the petitioner was not a Trainee and he was a workman and therefore, section 2A of the Industrial Disputes Act
is very much applicable to him. Accordingly, the first issue was answered in favour of the petitioner. But while considering the second issue, the
Labour Court found that the enquiry was held fairly and properly and the charges have been proved. Accordingly, the Labour Court found that the
dismissal of the petitioner from service was very appropriate. Accordingly, the Labour Court by award dated 25.6.2003 dismissed the Industrial
Dispute. Challenging the same, the petitioner/workman is before this Court with this writ petition.
At the outset, the learned counsel for the first respondent would submit that the petitioner is not a workman and he is only a Trainee and thus the
provision of the Industrial Disputes Act is not applicable to him.
But the learned counsel for the petitioner would submit that the Labour Court has given a finding that the petitioner is a workman in terms of the
Industrial Disputes Act and the Labour Court held the said issue in favour of the petitioner. The learned counsel would submit that the said finding
of the Labour Court does not require any interference at the hands of this Court.
I have heard the learned counsel for the petitioner and the learned counsel for the first respondent and also perused the records carefully.
At the outset, I want to remind that this Court while exercising its power under article 226 of the Constitution of India cannot re-appreciate the
entire evidence let in before the Labour Court and to resolve the disputed question of fact which was raised before the Labour Court by taking a
contrary view than what has been taken by the Labour Court. Only if the finding of the Labour Court is perverse in the legal sense or without
jurisdiction etc., this Court can go into the same. But in this case, as far as the issue as to whether the petitioner is a workman or not is a disputed
question of fact which has been resolved based on the evidence let in before the Labour Court to the effect that the petitioner is a workman and
therefore, he is entitled for the benefit of industrial disputes Act.
The learned counsel for the first respondent is not in a position to substantiate his contention that the said finding of the Labour Court is perverse
in the legal sense. In my considered opinion, the above disputed question of fact which has been resolved by the labour Court cannot be re-
opened by re-appreciating the entire evidence, converting this Court, as a Court of appeal. Thus, I do not find any merit at all in the objection
raised by the learned counsel for the first respondent in this regard.
It is also needs to be mentioned that in respect of the finding on the issue number 1 by the Labour Court, no challenge has been made by the
first respondent. For all these reasons, I reject the first contention raised by the learned counsel for the first respondent.
Secondly, this writ petition is opposed by the first respondent on the ground that the petitioner is guilty of laches. The learned counsel for the
first respondent would submit that the petitioner though was terminated from service on 7.10.1985, he raised the industrial dispute only in the year
1996. Thus, there is a delay of 11 years. The said delay has not been explained away by the petitioner. On the ground of delay, according to the
learned counsel, the petitioner is not entitled for the relief as sought for before the Labour Court.
Regarding this objection, the learned counsel for the petitioner would submit that before the Labour Court, the delay was not raised as a point.
He would further submit that thus there was no opportunity for the petitioner to explain the delay before the Labour Court. The learned counsel for
the petitioner would point out that for the first time, the question of delay is raised before this Court. In this regard, the learned counsel for the
petitioner would rely on a judgment of the Hon''ble Supreme Court in Ajaib Singh v. Sirhind Co-op M.P.S.S. Ltd., 2009 LLR 529 (SC): 1999 (2)
LLN 674. That was a case where a plea was taken before the High Court while challenging the award of the Labour Court that there was a delay
of 7 years in raising the industrial dispute. It was also contended before the Hon''ble Supreme Court that as per the limitation provided in Article
137 of the Limitation Act, the industrial dispute was barred by limitation. While considering the said plea, the Hon''ble Supreme Court has held that
the previsions of the Limitation Act are not at all applicable to the Industrial Disputes act. However, the Hon''ble Supreme Court has further held
that if there is any delay, the industrial dispute cannot be dismissed not merely on the ground of delay. The Hon''ble Supreme Court has further
proceeded to say that even in a case where there is a delay, the Labour Court, while dealing with the case, can appropriately mould the relief by
refusing back-wages or in appropriate cases direct payment of part of back-wages instead of full back-wages. In paragraph No. 10 of the said
judgment, the Hon''ble Supreme Court has held as follows:--
It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under
the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is
required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour
Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour
Court or board, dealing with the case can appropriately mould the relief by declining to grant back-wages to the workman till the date he raised the
demand regarding his illegal retrenchment/termination or dismissal. The court may also in appropriate cases direct the payment of part of the back-
wages instead of full back-wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and
Haryana High Court in Ram Chander Morya v. State of Haryana, is also of no help to him. In that case the High Court nowhere held that the
provisions of article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held neither any limitation
has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases. However, it went on further to say that:
reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after
which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay.
We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an
application u/s 33C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its wisdom had
thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over
the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the
legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various
pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation ior the
purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act.
The learned counsel would further submit that in yet another case In Executive Engineer v. M. Gajapathy, 2002 (1) LLN 1006, wherein a
learned Single Judge of this Court relying on the Ajaib Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited
and Another, ) has held that article 137 of the Limitation Act is not applicable to the Industrial Disputes Act. In paragraph No. 5 of the said
judgment, this Court has held as follows:--
A reading of the above judgments would clearly indicate that the provisions of article 137 of the Schedule to Limitation Act are not applicable to
the proceedings under the Industrial Disputes Act and the relief cannot be denied to the workman merely on the ground of delay. However, as
rightly pointed out by the Supreme Court while granting the relief the Labour Court has to exercise its discretion for grant appropriate relief.
Admittedly, in this case even though the Labour Court has directed the reinstatement of the first respondent has not rightly ordered the back-wages
for the period of time 15 May 1981 till the date of the award presumably that the first respondent was not entitled to wages for the period which
was contended to be the delay on the part of the first respondent. Therefore, I do not find any merit in the submission of the learned Government
Advocate that the second respondent ought to have rejected the petition filed by the first respondent in I.D. No. 581 of 1992 on the ground of
laches and also I do not find any merit to interfere in the award passed by the second respondent. Accordingly, the writ petition fails and the same
is dismissed. No costs.
But the learned counsel for the first respondent would rely on a judgment of the Hon''ble Supreme Court in Indian Iron & Steel Ltd. v. Prahlad
Singh, (2001) 1 SCC 424: AIR 2001 SC 63. That is also a case relating to industrial dispute. In that case, before the Labour Court, the plea of
delay was specifically taken. The delay in the said case was 13 years. The Management in that case was governed by the Standing Orders, which
also speaks of the delay. After referring to the said Standing Orders and the delay, in paragraph No. 10 of the said judgment, the Hon''ble
Supreme Court has held as follows:--
In our view on the facts of the case in hand the aforementioned two decisions were of no avail to support the case of the respondent. The
learned Single Judge also found fault with the Tribunal as to the finding that the claim of the respondent was too stale to grnat any relief when
parties had not raised such a plea. When the Tribunal on proper and objective appreciation of the material on record found that the claim was
made by the respondent after 13 years, it was open to it to refuse relief to the respondent. Moreover, the Tribunal did not refuse relief merely on
the ground of delay and laches as is evident form paragraph 25 of the order extracted above, inasmuch as the Tribunal has recorded that even
without considering the question of delay the respondent had lost his lien on his appointment.
A close reading of the above extracted portion of the judgment would go to show that in the said case, not merely on the ground of laches but
also on the ground of loss of his lien, as per the Standing Orders, the industrial dispute was dismissed. In the said case, it requires to be noticed
that the delay was raised as a specific plea and the same was considered by the Labour Court besides the other grounds. But in the case on hand,
the plea of delay was not at all raised before the Labour Court.
The learned counsel for the first respondent would nextly rely on the judgment of the Hon''ble Supreme Court in Union of India v. A. Durairaj
(Dead) by L.Rs, 2011 (2) LLN 51 (SC). In my considered opinion, the said case has got nothing to do with the issue involved in the present case.
That was a case where promotion was sought for, after a delay of 24 years. The Hon''ble Supreme Court has held that after the period of 24
years, if the seniority is re-arranged and any promotion is given, it will completely upset the whole administration. It was on that ground, the delay
was considered and therefore, the said judgment has got no application to the facts of the present case.
The learned counsel for the petitioner would nextly rely on the another judgment of the Hon''ble Supreme Court in Uttaranchal Forest
Development Corpn. and Another Vs. Jabar Singh and Others, In that case, the delay was 10 years, but that was not a case relating to industrial
dispute. That was a case where a Government servant who was dismissed from service, challenged the said order of dismissal after a period of 10
years. In those circumstances, the Hon''ble Supreme Court has held that the employee was guilty of laches in approaching the Court with the writ
petition. But in our case, the delay is not in filing writ petition but raising the industrial dispute.
As per the law laid down by the Hon''ble Supreme Court, in Ajaib Singh v. Sirhind Co-op M.P.S.S. Ltd., (cites supra), the plea of delay is a
fact to be raised before the Labour Court. If such a plea had been taken, the workman would have been in a position to let in evidence either to
say that there was no delay or atleast to explain the delay. Therefore, it is for the Labour Court either to accept the said explanation or not. Even
assuming that the Labour Court does not accept the delay, the option to the Labour Court is to deny the back-wages for the period of delay
caused in raising the industrial dispute. The Hon''ble Supreme Court has categorically declared the law, saying that the Limitation Act more
particularly, Article 137 of the Act is not at all applicable to the Industrial Dispute act. That has been followed by this Court in Executive Engineer
v. M. Gajapathy, (cited supra). In the case on hand, as I have already stated, the plea of delay in raising the industrial dispute was not at all raised
before the Labour Court.
Nextly, the learned counsel for the petitioner would submit that the Labour Court was not right in holding that the dismissal was fair and
proper. The learned counsel would point out that for the charge memorandum, a reply was given by the petitioner in categorical terms thereby
denying all the charges. But there was no enquiry held. Without holding any enquiry, the Enquiry Officer submitted a report wherein, without
making reference to any evidence, in an arbitrary manner the charges have been held as proved. The Enquiry Officer has further stated that the
petitioner should be terminated from service with effect from 18.8.1993. But the learned counsel for the first respondent would submit that there
was no need to hold enquiry into this matter as, according to him, in his reply dated 26.8.1983, the petitioner has admitted the charges. Therefore,
there is no need for holding any enquiry. He would further submit that the petitioner appeared before the Manager (P&M) and gave a statement
stating that he could be pardoned for the misconduct committed by him. Therefore, according to him, non-conduct of any further enquiry has not
caused any prejudice to the petitioner. Thus, according to the learned counsel, the first respondent was right in holding that the charges have been
proved.
I have also considered the rival submissions. As I have already extracted there were three charges framed against the petitioner. The first
charge is that he had not made entries in the family cards held by the card holders to whom essential commodities were supplied. For this,
according to the learned counsel for the first respondent, the petitioner had admitted the guilt. But in my considered opinion, the said statement is
not correct. A perusal of the explanation submitted by the petitioner would go to show that he has explained the first charge. He has stated that
because of the pressure of work, there would have been some inadvertent omission in making entries in some of the family cards. This, in my
considered opinion, will not amount to admission of the first charge. He has only explained away the same.
Then coming to the second charge, it states that the petitioner ''sold the essential commodities in black market for his personal benefit. For the
said charge also, there is a specific denial in the explanation given by the petitioner. Thus, there is no admission at all with regard to the second
charge also.
Similarly, for the third charge also, the petitioner has specifically denied the same. Therefore, the contention of the learned counsel for the first
respondent that the petitioner has admitted his guilt and did not dispute the charges cannot be accepted at all.
The Enquiry Officer''s report would reveal that upto paragraph No. 4, it is only a narration of facts. In paragraph Nos. 5 and 6, the Enquiry
Officer has concluded as follows:--
I am to state that regarding charges I and 2, there are entries in the drawal register but corresponding entries are not found in the cards. Hence,
these charges are proved. Further 74 litres of kerosene were found short. I am of oopinion that this shortage could not be due to anything other
than sale in the open market. Hence the charges, are held proved. I recommend that the delinquent may be terminated from service with effect
from the date of relief viz., 18.8.1983.
The served copy of the charge memo, explanation received from the delinquent and the records of domestic enquiry are closed.
I am at a loss to understand as to how the Enquiry Officer, without reference to any document and without reference to any evidence, could
come to such a conclusion that the petitioner is guilty of, charges. It is an admitted fact that in the register, there are entries to show that some
essential commodities were sold to some of the family card holders. It is also an admitted fact that the corresponding entries were made. Whether
such omission was made inadvertently or for his personal-benefit has to be answered by the Enquiry Officer. Further, after this, in my considered
opinion, the enquiry was not held fairly and properly. Similarly, the conclusions arrived at by the Enquiry Officer that the charges have been
proved, which is based on no evidence is surely arbitrary and so the consequential dismissal order cannot be sustained.
Further, a perusal of the records would go to show that the charges were framed by the Manager (P&M) and the petitioner submitted his
explanation to him. The enquiry report was also submitted by the very same officer. Thus, the Officer who framed charges against the petitioner
has acted as Enquiry Officer and also submitted his report. Based on the same, the order of dismissal has been issued, this In my considered
opinion, amounts to illegality. Above all, as and when there is a finding by the Enquiry Officer that an employee is guilty of charges, it is absolutely
necessary to afford an opportunity to the employee to make his further explanation by the first respondent. That was also not adhered to in this
case. Thus, in my considered opinion, the termination order has not been passed by following the procedure established under law.
The Labour Court, on its part, has also committed an illegality. In the claim statement, a specific plea was taken by the petitioner that the
enquiry was not held fairly and properly. But the Labour Court, had failed to make a preliminary issue on that question. Instead, the Labour Court
concurred with the termination order passed against the petitioner which, I find, is perverse.
For these reasons, I hold that the Labour Court was not right in dismissing the Industrial Dispute raised by the petitioner. The Labour Court
ought to have set aside the order of termination and to have ordered for reinstatement of the petitioner. But at the same time, in my considered
opinion, the petitioner is not entitled for full back-wages. It is settled law that payment of back-wages is not automatic unless it is pleaded and
proved that the petitioner was not gainfully employed elsewhere during the relevant period, he will not be entitled for back-wages. In this case, the
petitioner has not pleaded and proved the same. Therefore, he is hot entitled for full back-wages. But at the same time, I am of the view that for
the period till he raised the industrial dispute, though he is not entitled for back-wages, but for the subsequent period, he will be entitled for atleast
25% of back-wages.
It is stated that the petitioner attained the age of superannuation on 14.7.2006. Therefore, for the period from the date of raising industrial
dispute before the Labour Court and till the date of his retirement viz., on 14.7.2006, the petitioner will be entitled only for 25% of back-wages. In
the result, the writ petition is partly allowed in the following terms:--
(i) The award passed by the Labour Court in I.D.No.34 of 1996 dated 25.6.2003 is set aside and the petitioner is ordered to be reinstated in
service with continuity of service.
(ii) It is further directed that the petitioner shall be deemed to have retired from service on 14.7.2006.
(iii) The petitioner shall be entitled for 25% of back-wages for the period from 16.4.1996 i.e., from the date of filing of Industrial Dispute before
the Labour Court till 14.7.2006 i.e., till the date of his retirement. It is further directed that the petitioner shall not be entitled for back-wages for the
period between the date of dismissal and 15.4.1996.
(iv) In any event, the first respondent shall pass consequential orders and settle the wages as directed above within a period of six months from the
date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.