IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14384 of 2009 1. MAHABIR OJHA S/O LATE SHANKAR DAYAL OJHA VILL&P.O. CHHOTA SINGHANPURA, P.S. SIMARI, DISTT- BUXAR, A/P NO. 19 PROFESSORE COLONY CHITRAGUPTA NAGAR, PATNA 800020 Versus 1. THE STATE OF BIHAR , THROUGH THE PRINCIPAL SECRETARY LABOUR DEPARTMENT GOVT. OF BIHAR 2. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL CUM APPELLATE AUTHORITY U/S 28(7) OF BIHAR SHOPS AND ESTABLISHMENT ACT 1953, BAILY ROAD, PATNA -800001 3. THE PRESIDING OFFICER , LABOUR COURT, PATNA 4. POPULAR NURSING HOME THROUGH ITS TRUSTEE 5. RAJ KUMAR JAISWAL S/O LATE BRIJNANDAN LAL TRUSTEE OF POPULAR NURSING HOME , ALL OF MOHALLA- CHAUHATA, ASHOK RAJ PATH, P.O. BANKIPUR, P.S PIRBAHORE, DISTT- PATNA -4 with CWJC No.11268 of 2009 POPULAR NURSING HOME . Versus STATE OF BIHAR & ORS . ----------- C.W.J.C. No. 14384 of 2009 For the Petitioners:- Mr. Madan Pd. Singh-2, Adv. For the Respondents:- Mr. V.N. Sahay, Adv. Mr. Arun Srivastava, Adv. C.W.J.C. No. 11268 of 2009 For the Petitioners:- Mr. V.N. Sahay, Adv. Mr. Arun Srivastava, Adv. For the Respondents:- Mr. Madan Pd. Singh-2, Adv. ------------- 3. 25.02.2011 Heard learned counsel for the petitioners, the State and for the contesting private respondents in both the writ petitions. In C.W.J.C. No. 14384 of 2009, the petitioner is the Worker, in C.W.J.C. No. 11268 of 2009, it is the Management. The parties shall therefore for convenience be hereinafter referred to as the “Worker” and “Management” for brevity. The Worker was terminated from service on 2 26.3.1981. He preferred B.S.E. Case No. 18 of 1981 under Section 26 of the Bihar Shops and Establishment Act (hereinafter referred to as the „Act‟). The Labour Court allowed the claim on 27.3.1992 directing reinstatement with back wages, other legal dues and consequential benefits. The Management preferred C.W.J.C. no. 4008 of 1992 dismissed on 20.12.1994. L. P. A. No. 24 of 1995 against the same was also dismissed on 12.12.2002. The Management failed to implement the Award. The Worker filed Case No. 28 of 1992 on 17.9.1992 under Section 28(1) of the Act for the dues. The claims of the Worker were partly allowed on 21.2.2003. Aggrieved by the same both the Management and Worker preferred B.S.E. Appeal No. 1 of 2003 and B.S.E. Appeal No. 3 of 2003 respectively. The Appeal of the Management has been dismissed. The Worker‟s Appeal has been partly allowed. Mr. V. N. Sahay, appearing for the Management contended that the organization being a Trust had been impleaded as party through a named Trustee, Brijnandan Lal. After his death on 29.12.1999, the new Trustee had not been impleaded by substitution. The liability of one 3 Trustee could not be fastened on to the next Trustee. The order for payment in Case no. 28 of 1992 was passed against a dead person and was thus a nullity. Appeal No. 3 of 2003 preferred by the Worker was barred by limitation under Section 28(7) of the Act read with Rule 24. The Act was a complete Code and contained no provision for condonation of delay unlike claims under Section 26 and 28(1) of the Act. Condoning the delay was without jurisdiction. Alternatively, it was submitted that the appellate Court had no power to vary or enhance the compensation as may have been Awarded originally in B S E Case no.18 of 1981. No grounds had been discussed why the Appellate Court was satisfied of the need and jurisdiction to vary and enhance the claims in Appeal. Learned counsel for the Worker submitted that Section 39 of the Act provides that the provisions of the Workmen‟s Compensation Act and the rules made there under shall apply mutatis mutandis to every employer or employee under the Act. Relying upon Section 30(3) of the Workmen‟s Compensation Act, it is submitted that the provisions of Section 5 of the Limitation Act have been made applicable to Appeals. The Appellate authority satisfied with the 4 sufficiency of reasons, exercising its discretionary powers has condoned the delay in exercise of powers under Section 5 of the Limitation Act. The writ Court may not interfere with it. Strong reliance has been placed on the observations made in L.P.A. No. 24 of 1995 that the Management was taking inconsistent pleas to deny relief. Legal ingenuity cannot be resorted to deny the claim of the employee. The management could not prolong the proceedings by frivolous objections unsuccessfully in every forum where the Worker may reach. He therefore submits that the Letters Patent Court had virtually debarred the Management from raising questions of the present nature time and again. The submissions on behalf of the parties have been considered. The questions for primary consideration can succinctly be summed up as follows :- (a) Is the order in Case no.28 of 1992 unenforceable in absence of substitution of the Trustee. (b) Could the delay in filing Appeal no.3 of 2003 by the Worker be condoned. (c) Did the Appellate authority have 5 jurisdiction to vary and enhance the claims as allowed in B S E Case no.18 of 1981. The Management is a Trust registered under the Indian Trust Act (hereinafter called the „Trust Act‟). Section 5 provides a Trust may consist of immovable property also. Section 23 stipulates the Trustee is bound to defend Suits against the Trust. Section 25 provides a Trustee is not liable for the acts and defaults of the previous Trustee. Section 51 prohibits the Trustee from using the trust property for his own profit. Section 59 stipulates that after death of the Trustee, the Court may execute the Trust till appointment of a new Trustee. Office of Trustee stands vacated on death under Section 70. Section 73 provides for appointment of a new Trustee after death of the previous Trustee. The property of the Trust vests in the new Trustee and he has the same powers, authorities and discretion. Section 76 stipulates that on the death of a Trustee the Trust survives according to the instrument of the Trust. Section 77 and 78 provide for extinguishment and Revocation of Trust, but Section 79 holds valid all that was done by the Trustee. A Trust is thus a non juristic body. A Trustee is a juristic person bound to defend suits 6 against the Trust. He cannot utilize the Trust property for his own profit. A liability incurred against the Trust by a Court order under a statutory law is not an act or default of the earlier Trustee absolving the new Trustee after death of the former. The Trust has continuity on the death of a Trustee enforceable through Court even in absence of a new Trustee awaiting such appointment. The acts of the previous Trustee bind the Trust except when done contrary to the instrument of the Trust. There is a continuity of the Trust even after death of the Trustee. The Trust having been impleaded as party through its Trustee, the liability incurred there under automatically binds the new Trustee by operation of law. The observations in L.P.A. no. 24 of 1995 with regard to the conduct of the Management are apposite and the Court wholly reiterates the same. The Worker seeks relief under a beneficial legislation reeling under the brunt of institutional opposition against his termination dated 26.3.1981 unable to reap the benefits of an order delivered as far back as 27.3.1992. The objection of the Management that the order dated 21.2.2003 in Case no. 28 of 1992 was bad for lack of substitution of the Trustee is not 7 sustainable. The Labour Court in B S E. case no 18 of 1981 ordered full back wages, other legal dues and consequential benefits that may have been available if the Worker had continued in service. There was no quantification of the dues done under individual headings. Under Section 28 (1) of the Act, wages due and any other sum due can be awarded. The Labour Court in Case no 28 of 1992 has only interpreted and deciphered the legal dues admissible in terms of the original award, allowed some and disallowed others on contest. The Management has not annexed its memo of Appeal no.1 of 2003 to the writ petition though they have annexed the Workers memo of appeal. There is no pleading in the writ petition of the Management that all issues raised and contested by it have not been dealt with by the Appellate Court. A bald casual statement has been made in the pleadinhs of the writ application that claims beyond Section 28 (1). The Worker questioned the award in case no 28 of 1992 on quantification in its Appeal. The judgment of the Appellate Court does not reflect that the Management raised any challenge to the quantification claimed by the worker but confined its challenge on other issues. The 8 Management therefore cannot be permitted to assail the quantification done by the Appellate Court for the first time before this Court and invite it to decide the order on a question to which the Appellate Court had no occasion to apply its mind. Assuming for the sake of discussion that issues may have been pleaded in the memo of Appeal nonetheless it was not pressed, the Apex Court in (2010) 1 SCC 722(Ram Bharosey v. State of U.P,) has observed at paragraph 15 as follows :- “15. It is experience of one and all that in the memorandum of appeal or revision, several grounds are taken/pleaded but at the time of the arguments the learned advocate would confine himself to few points which he considers to be best and presses only those points to be considered by the Court. It is not the case of the appellant that a particular point was argued but is not dealt with by the High Court. In the memorandum of special leave petition no grievance is made by the appellant that certain points were urged but were not considered by the High Court. As the learned Advocate for the appellant and others had emphasised three points before the High Court, the High Court was justified in considering those points and not adverting to all the points which were raised in the memorandum of appeal.” C.W.J.C. No. 11268 of 2009 is accordingly dismissed. On the question of condonation of delay in filing Appeal by the Worker, the order in Case No. 28 9 of 1992 was passed on 21.2.2003. An Appeal could be preferred against the same under Section 28(7) read with Rule 24 of the Act within 30 days from the date on which the decision was made. It does not provide for any condonation. In contradistinction to the same, delay in preferring of the original application of claims under Section 26(2) of the Act within 90 days could be condoned under Section 26(4) if sufficient cause was shown. Likewise Section 28(1) provides for preferring an application against delayed payment of wages within such time as may be prescribed. Rule 22(1) prescribes the period of six months condonable under the proviso on sufficient cause being shown. The legislature in its wisdom intentionally did not provide for any condonation of delay in preferring of the Appeal as distinct from the other provisions with regard to termination or claim for delayed wages. The Bihar Shops and Establishment Act is a complete Code by itself. If the legislature in its wisdom has made provisions for the manner in which and the time within which applications for different nature of relief‟s are to be preferred, it shall have to be done in the manner provided under the Act and in no other manner. 10 In (2003) 8 SCC 431 Prakash H. Jain v. Marie Fernandes) it has been observed as follows at paragraph 10 : - “10. We have carefully considered the submissions of the learned counsel appearing on either side. Questions of the nature raised before us have to be considered not only on the nature and character of the authority, whether it is court or not but also on the nature of powers conferred on such authority or court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein. There is no such thing as any inherent power of court to condone delay in filing proceedings before a court/authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other party under the statute concerned.” The contention that the provisions of the Workmen‟s Compensation Act shall apply mutatis mutandis to proceedings under the present Act by virtue of Section 29 of the Act and therefore condonation of delay was sustainable under Section 30 (3) of the Workmen‟s Compensation Act may have relevance where the provisions of the Act be silent and to give full effect to it. If the Act has made specific provisions, to that extent, the provisions of 11 the Workmen‟s Compensation Act shall stand excluded. Any other interpretation would lead to clash between the two statutory provisions. The phrase mutatis mutandis has been explained in (1983) 2 SCC 82 (Ashok Service Centre v. State of Orissa at paragraph 17 as follows:- “17. We have to understand the meaning of the expression „mutatis mutandis‟. Earl Jowitt‟s The Dictionary of English Law (1959) defines „mutatis mutandis‟ as „with the necessary changes in points of detail‟. Black‟s Law Dictionary (Revised 4th Edn., 1968) defines „mutatis mutandis‟ as “with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Housman v. Waterhouse2. In Bouvier‟s Law Dictionary (3rd Revision, Vol. II), the expression „mutatis mutandis‟ is defined as “[T]he necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like”. Extension of an earlier Act „mutatis mutandis‟ to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act.” The Labour Court, the designated Authority under the Act may be deemed to be a Court but that 12 shall not vest in it the inherent powers of Section 5 of the Limitation Act in regard to Appeals if the Legislature has specifically omitted it. In A.I.R. 1985 SC 1279 (Sakuru Vs. Tanaji) it has been held at Paragraph-3 as follows:- “3…… It is well settled by the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1970) 1 SCR 51 : (AIR 1969 SC 1335), Nityananda M. Joshi v. Life Insurance Corpn. of India (1970) 1 SCR 396 : (AIR 1970 SC 209) and Sushila Devi v. Ramanandan Prasad (1976) 2 SCR 845 : (AIR 1976 SC 177) that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified. powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under S. 90 of the Act not being a Court, the Limitation Act, as such, hid no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of S. 5 of the Limitation Act shall be applicable to such proceedings.” 13 Appeal No. 3 of 2003 preferred by the worker beyond a period of 30 days from the date of decision was not maintainable as barred by limitation. The Appellate authority could not have condoned the delay by invoking Section 5 of the Limitation Act. C. W .J. C. No. 14384 of 2009 is accordingly dismissed. Mandamus is issued to the management to comply the order dated 17.9.1992 in Case No. 28 of 1992 within a maximum period of two months from today, failing which in the facts and circumstances of the case, more particularly the observations contained in L.P.A. No. 24 of 1985, the worker shall be held entitled to interest at the Bank rate upon the same from the date of the order till payment. Both the writ applications are dismissed. P. Kumar ( Navin Sinha, J.)