HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.18426, 18437, 18438, 18444, 18451, 18472 & 18473 of 1999 Dated: 24.09.2009 Between: G. Pentachary & others. …..Petitioners And The Addl. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad & another. …..Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.18426, 18437, 18438, 18444, 18451, 18472 & 18473 of 1999 COMMON ORDER : As on identical set of facts, common questions of law arise for consideration, all these writ petitions are heard together and are being disposed of by this common order. 2. For the purpose of disposal, I refer to the facts as narrated in W.P.No.18426 of 1999. This writ petition is filed by the workman, questioning the validity of the award, dated 31.12.1998, passed by the Additional Industrial Tribunal-cum-Labour Court, Hyderabad, in I.D.No.51 of 1997, published in G.O.Rt.No.619, dated 09.04.1999, and for consequential directions to the 2nd respondent to reinstate the petitioner into service with continuity of service, backwages and attendant benefits. 3. The 2nd respondent is an establishment involved in printing and circulation of newspapers. The petitioner herein joined in the 2nd respondent organization on 17.11.1975 as a Compositor. During the year 1980, disciplinary proceedings were initiated against him by the management, and two sets of charges were framed against him, vide two separate charge sheets. In the charge sheet, dated 25.05.1980, the petitioner and other employees were charged as under: “Charge No.1: The workmen failed to exhibit their name slugs at the top of the matter composed by each of them, contrary to the established practice and in utter disregard of the notices and specific instructions issued to them by the Foreman, Shift Incharge and the press Manager, which is a misconduct as per Model Standing Order No.20 (a). Charge No.2 : The workmen refused to receive notices dated 18th, 20th and 23rd March, 1980, which were sought to be served on them, which act of theirs is a misconduct as per Model Standing Order No.20 (k). Charge No.3 : The workmens’ failure to exhibit their name slugs resulted in considerable slow down of the production which amounts to ‘go slow’ a misconduct under Model Standing Order No.20 (c).” Another charge sheet was issued on 02.06.1980 with the following 4 charges : “1. Riotous and disorderly behaviour during working hours at the Establishment and acts subersive of discipline. 2. Causing willful damage to work in process and also causing willful damage to the property of the establishment. 3. Assaulting your co-worker. 4. Trespassing into Company premises during your weekly-off.” 4. In the domestic inquiry conducted against the petitioner, the inquiry officer has found that the petitioner was guilty of charge Nos.1 and 2 of the first charge sheet, and all the 4 charges of the 2nd charge sheet. The inquiry officer has further recorded a finding that though the production has fallen from 282 lines to 224 lines against the standard prescribed 300 lines, but, by observing that such fall in lines is not willful, held that the 3rd charge of the 1st charge sheet was not proved. The disciplinary authority, while accepting the findings recorded by the inquiry officer on charge Nos.1 and 2 of the 1st charge sheet, deferred with the findings on the 3rd charge, and held that the 3rd charge is also proved, as the petitioner did not deny the charge of willful ‘go slow’, and did not give any reply in respect of the said charge and also did not adduce any evidence to show that fall in production would not be attributed to him. After issuing the 2nd show cause notice based on the domestic inquiry proceedings, and considering the explanation offered by the petitioner, having regard to the gravity and seriousness of charges, which are held proved, the petitioner was terminated from service by an order dated 23rd January 1982. Though the petitioner is not concerned with the proceedings which were pending in I.D.Nos.15 and 16 of 1977, the respondents, by way of abundant caution, filed Miscellaneous Petition in M.P.No.37 of 1982 under Section 33 (2) (b) of the Industrial Disputes Act, 1947, and the order of dismissal was also approved by the Industrial Tribunal, by recording a finding that the domestic inquiry conducted against the petitioner is in accordance with the principles of natural justice and that the petitioner- workman was given ample opportunity to represent his case and to adduce evidence. 5. The termination order is questioned by the petitioner nearly after 15 years, by filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947, which was introduced by A.P.Amendment Act 32 of 1987 with effect from 27.07.1987. In the Claim Petition filed before the Tribunal under Section 2-A(2) of the Act, it was the case of the petitioner that the order terminating the services of petitioner was passed illegally and without any just cause. It was his further case that the termination based on the findings of the inquiry officer was perverse, and the order of termination was not based on any substantial misconduct, but was passed as an act of victimization. To explain the delay, it is stated that the Workers Union i.e. ‘Eenadu Press Workers Union’ was agitating on illegal termination of some employees, who resorted to strike, and the case was pending in Civil Appeal No.2662 of 1979 before the Hon’ble Supreme Court, which was disposed of by an order dated 07.02.1996, and only thereafter, the Management has settled the amounts due to the workmen, but however, the petitioner was denied the benefit, as such, the said application is filed. 6. Before the Tribunal, a detailed counter affidavit is filed on behalf of the 2nd respondent-Management. While denying the various allegations of the petitioner, it was the case of the 2nd respondent that though the petitioner was terminated from service by an order dated 23rd January 1982, the claim petition under Section 2-A(2) of the Act was filed only in the year 1987 i.e. nearly after a lapse of 15 years. It was the case of the 2nd respondent- Management that as much as the petitioner had approached the Tribunal belatedly, even without explaining the delay, the petition is liable to be dismissed in limini due to laches and abnormal delay on the part of the petitioner. 7. Before the Labour Court, no oral or documentary evidence was adduced on behalf of the petitioner. But on behalf of respondents, documentary evidence under Exs.M-1 to M-8 were marked. 8. Having regard to the pleadings of the parties before the Tribunal, the Tribunal has framed the following points for consideration : “1. Whether this petition is not maintainable under Sec.2- A(2) of the Industrial Disputes Act 1947 ? 2. Whether the petition is liable to be dismissed for laches ? 3. Whether the domestic enquiry was validly held ? 4. Whether the findings on the charges are correct ? 5. Whether the punishment imposed on the petition is proportionate on the acts of misconduct ? 6. To what relief ?” 9. With regard to point No.1 on the question of maintainability of application filed under Section 2- A(2) of the Industrial Disputes Act, 1947, the Tribunal has held that the said application is maintainable. On point No.2, while considering the plea of the respondents that there were laches on the part of the petitioner in approaching the Tribunal, it has recorded a finding that the petition is filed by the petitioner after 15 years of his termination from service, and that too, without sufficient cause or proper explanation for his inaction and inordinate delay in raising the dispute, and therefore, the claim of the petitioner is not only a staled one, but also over-delayed, as such, it was held that the claim is liable to be dismissed on account of laches and inordinate delay. While adjudicating on Point No.3 on the validity of domestic inquiry, the Tribunal has found that the domestic inquiry was validly held. On point No.4 whether the findings on charges are correct or not, the Tribunal has found that all the charges framed against the petitioner were held proved. Coming to point No.5 with regard to proportionality of punishment imposed to the acts of misconduct, the Tribunal found that the punishment awarded is not proportionate to the acts of misconduct, but declined to order reinstatement in view of the finding recorded on point No.2 to the effect that the application was filed after 15 years of termination, without explaining such inordinate delay and laches. 10. Heard Sri V.Hari Haran, learned counsel appearing for the petitioner and Sri C.R.Sridharan, learned counsel appearing for the 2nd respondent. 11. It is submitted by the learned counsel for petitioner that the charges framed against the petitioner were trivial and technical in nature, and inspite of the same, in utter disregard to the theory of proportionality, the petitioner’s services were terminated after several years of entry into service. It is submitted by learned counsel that as disputes were pending in I.D.Nos.15 and 16 of 1977, raised by the Workers Union, of which, the petitioner was a member, and further, in view of the orders of Hon’ble Supreme Court in Civil Appeal No.2662 of 1979, the petitioner, having found that he was not extended any benefit as was extended to other workers, has approached the Tribunal. It is submitted that in view of the circumstances stated, the Tribunal ought to have seen that there was a proper and valid explanation for the delay on the part of the petitioner. It is submitted that after the order of termination is approved by the Tribunal, the petitioner has filed an application under Section 2-A(2) of the Industrial Disputes Act, 1947, questioning the termination order. It is submitted that instead of dismissing such application, the Tribunal ought to have granted appropriate directions for compensating the petitioner by granting monetary benefit. In support of his arguments, the learned counsel for petitioner has relied on the judgments of the Hon’ble Supreme Court in the case o f Madhya Pradesh Administration V. Tribhuban[1], U.P.State Road Transport Corporation V. Babu Ram[2], Uttaranchal Development Corporation V. M.C.Joshi[3] and the judgment in the case of N.Balakrishnan V. M.Krishnamurthy[4]. 12. On the other hand, it is submitted by Sri C.R.Sridharan, learned counsel for the 2nd respondent, that there was no explanation offered by the petitioner in the claim petition filed before the Tribunal, to explain the inordinate delay and laches. It is submitted that though the order of termination is passed in the year 1982, applications were moved before the Tribunal in the year 1997 i.e. nearly after 15 years of termination, as such, in view of the unexplained and inordinate delay on the part of the petitioner, the Tribunal has rightly considered the said aspect and rejected to grant any relief. It is further submitted that having regard to the evidence placed before the Tribunal, all the charges are held proved, and in that view of the matter, there are no grounds to interfere with the Award of the Tribunal at this stage. The learned counsel has relied on the judgment in the case of Syed Yakoob V. Radhakrishnan[5] in support of his argument that in the absence of any error committed by the Tribunal and in the absence of any illegality, this Court cannot interfere with the findings of facts arrived at by the Tribunal. In support of his argument that application of the petitioner is a belated one without any explanation for the inordinate delay and laches, the learned counsel has relied on the judgments of Hon’ble Supreme Court in the case of Nedungadi Bank Ltd. V. K.P.Madhavankutty and others[6], and in S.M.Nilajkar and others V. Telecom District Manager, Karnataka[7]. 13. Having regard to the above contentions of the learned counsel for the parties, in this case, it is to be noted that the disciplinary proceedings were initiated against the petitioner as early as in the year 1980 and two charge sheets containing two sets of charges, were issued. On the said charges framed against the petitioner, domestic inquiry was conducted, wherein, it was held that charges 1 and 2 of the 1st charge sheet and all the charges of the 2nd charge sheet, were proved. Even with regard to the 3rd charge of the 1st charge sheet, after issuing show cause notice to the petitioner, the disciplinary authority has recorded a finding that the 3rd charge is also proved. The validity of such findings was questioned before the Industrial Tribunal-cum-Additional Labour Court, but the Tribunal also, after elaborately considering the charges framed against the petitioner and the supporting material and the findings recorded by the inquiry officer, approved the findings, by holding that the charges framed against the petitioner were proved. In that view of the matter, in the absence of any further material placed before this Court, absolutely no ground is made out to interfere with the factual findings recorded by the Tribunal, approving the findings of the inquiry officer on the charges framed against the petitioner in the inquiry proceedings. So far as the delay aspect is concerned, it is not in dispute that the order of termination against the petitioner is passed as early as on 23rd of January 1982 and the said orders are questioned by way of claim petition under Section 2-A(2) of the Industrial Disputes Act, 1947, only in the year 1997. Though there was an abnormal delay of 15 years, the said delay is sought to be explained by the petitioner, by referring to the disputes which are pending before the Tribunal in I.D.Nos.15 and 16 of 1977 and the orders of the Hon’ble Supreme Court, passed in Civil Appeal No.2662 of 1979. So far as the dispute in I.D.No.15 of 1977 is concerned, it was the matter referred by the Government on the demand of workmen for enhancement of wages, including D.A. for non-working journalists. Ultimately, the said I.D. was closed as infructuous in view of the Palekar Award. The dispute in I.D.No.16 of 1977 is with regard to the reference made by the Government whether the action of the management against Kum.Ratnamala, Kum.Jamuna and Smt.Usha Rani is justified under Standing Orders applicable for the industrial establishment, and if not, what relief the employees are entitled to. The said I.D. was also closed on 03.09.1996, as it was not pursued. In view of the said scope of references, it is absolutely a lame excuse on the part of the petitioner to explain such abnormal delay on the ground that said I.Ds. were pending. So far as the orders of the Hon’ble Supreme Court in Civil Appeal No.2662 of 1979 are concerned, there is a prohibitory order issued by the Government in G.O.Ms.No.716, dated 01.07.1977 and G.O.Ms.No.715, dated 01.07.1977, which were the subject matters of I.D.No.15 of 1977 and Writ Petition No.1965 of 1977, and the said writ petition was dismissed on 27.10.1978, and against the same, the matter was carried by way of Civil Appeal in C.A.No.2662 of 1979 and the Supreme Court has passed the following order : “We have suggested to Mr.Pai that all those workmen whose services were terminated prior to the interim stay granted by this Court may be given suitable compensation. Those workmen who are continuing in service (either under suspension or otherwise) shall be treated to be in service and be paid regularly till they are superannuated in accordance with the rules of the establishment. Mr. Pai seeks short adjournment to seek instructions.” 14. Even the proceedings pending in M.P.No.37 of 1982 and Civil Appeal No.2662 of 1979 also cannot come to the rescue of the petitioner to explain the delay. The Tribunal itself, having taken the said aspects into consideration, recorded a finding that there is no valid explanation for the delay of 15 years. Even from the date of approval of the termination orders on the application filed by the 2nd respondent in M.P.No.37 of 1982, there was a delay of more than 8 years, and such delay is also not at all explained. In the light of the unexplained delay and laches on the part of the petitioner, there is absolutely no illegality committed by the Tribunal in rejecting the claim of the petitioner, having found that the punishment imposed is not proportionate with the gravity of the charges framed against the petitioner. 15. The learned counsel for petitioner has relied on the judgment in the case of Madhya Pradesh Administration (1 supra), wherein, while considering the retrenchment proceedings, the Hon’ble Supreme Court was of the view that the question as to what relief to be granted to the workman would depend on the peculiar facts and circumstances of each case. 16. The learned counsel has also relied on another judgment in the case of U.P.State Road Transport Corporation (2 supra), wherein, when there was a delay in seeking reference to the Industrial Tribunal, the Hon’ble Supreme Court has found that no formula of universal application can be laid down for determination of the question whether the industrial dispute was raised within reasonable time or not, would depend upon the facts of each case. 17. In another judgment in the case of Uttaranchal Development Corporation (3 supra), when there was a delay of about 6 years in approaching the Tribunal, the Hon’ble Supreme Court has molded the relief by substituting the judgment with an award of compensation of Rs.75,000/- in favour of the workman. 18. Further, reliance is placed in the case of N.Balakrishnan (4 supra), wherein, when there was a delay of 883 days in filing an application for setting aside the exparte decree, and when the cause was shown that the Advocate on record failed to inform the appellant about dismissal of application, the Hon’ble Supreme Court has observed that such explanation can be construed as a satisfactory one, and in such cases, it was held that opposite party should be compassionated by appropriate terms. 19. From the judgments referred above, it is clear that whether the delay is properly explained or not, is a matter to be considered having regard to the factual situation of each case. In this case, having regard to the explanation offered by the petitioner that in view of the pendency of I.D.Nos.15 and 16 of 1977 and the orders passed by the Supreme Court in Civil Appeal No.2662 of 1979, the delay cannot be excused. Having regard to the proceedings for which the petitioner was not a party, and further, having regard to the relief sought for in the writ petition, which was dismissed and carried to Supreme Court in Civil Appeal No.2662 of 1979, the delay, which is sought to be explained, is a lame excuse and is not a basis at all to explain such delay. Therefore, the judgments relied upon by the learned counsel for petitioner would not render any assistance in support of his arguments, having regard to the facts and circumstances of the cases on hand. 20. On the other hand, the learned counsel for the 2nd respondent-Management has relied upon the judgment in the case of Nedungadi Bank Ltd (6 supra), wherein, the Hon’ble Supreme Court has held : “Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is staled could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.” 21. Further, in the case of S.M.Nilajkar (7 supra), the Hon’ble Supreme Court has held as follows: “It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants, the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd V. Workmen (AIR 1959 SC 1217), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re- employment of most of the old workmen was held to be fatal in Shalimar Works Ltd V. Workmen. I n Nedungadi Bank Ltd V. K.P.Madhavankutty ((2000) 2 SCC 455), a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta V. Union of India (1993 Supp (4) SCC 67), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour V. Union of India ((1988) 1 SCC 122), the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum- Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay.” 2 2 . Further, in the case of U.P.State Road Transport Corporation (2 supra), the Hon’ble Supreme Court has held : “It is to be noted that the High Court has very crytically disposed of the writ petition. The workman has not placed any material to show that he had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. The High Court, on a hypothetical basis has assumed that the dispute might have been raised promptly but delayed by the State Government and he cannot be penalized for delay in finalizing