P. K. Pavoo v. Government of Kerala — 1960 DIGILAW 79 (KER)

JUDGMENT : T.C. RAGHAVAN, J. 1. This appeal is directed against the order of our learned brother, Raman Nayar, J., dismissing O.P. No. 665 of 1959 at the admission stage. The appellant was the Head Accountant of the 2nd respondent Bank 1945 onwards. On 17th February 1951, the Board of Directors of the Bank by resolution, Ext. P. 10 degraded or denoted the appellant to the post of a clerk. He was also, by the same resolution, placed under suspension for a period of six months from 19-3-1951. The resolution further directed that the Accountant should hand over charge to Mr. V.O. Antony. On 19-3-1951 the appellant was served with Ext. Pi-order issued by the Manager suspending him for a period of six months with effect from 19th February 1951. The order also directed that the appellant would work as a clerk on the expiry of the suspension period and it further directed the appellant to hand over charge immediately to the Assistant Manager. Accordingly on 21-2-1951 the appellant handed over charge to the Assistant Manager. During the period when the appellant was under suspension the Bank dispensed with his services with effect from 14-7-1951 by the order Ext. P. 2. 2. The appellant moved the Government of Travancore-Cochin, through the All Kerala Bank Employees’ Union and finally on the report of the Assistant Labour Commissioner the Government by their order dated 19-9-1951 referred the dispute for adjudication to the Industrial Tribunal, Ernakulam, on the question, whether the suspension and subsequent discharge of the appellant was justifiable, and if not, to what relief he was entitled. Before the Industrial Tribunal the Bank contended inter alia that the appellant was not a workman coming under S. 2 of the Industrial Disputes Act of 1947. After an elaborate enquiry the Industrial Tribunal recorded a finding that the action, taken against the appellant and the punishment inflicted on him were high handed actions of victimisation and so the proper relief was reinstatement with all arrears of pay. But the Tribunal held that the status of the appellant would not come under the category of workmen under the Industrial Disputes Act and so it had no jurisdiction to grant him any relief. This award of the Tribunal is Ext. P5. The appellant took up the matter in appeal before the Labour Appellate Tribunal at Madras and the Appellate Tribunal by its order, Ext. This award of the Tribunal is Ext. P5. The appellant took up the matter in appeal before the Labour Appellate Tribunal at Madras and the Appellate Tribunal by its order, Ext. P6, held that the status of the appellant was only that of the Head Accountant of the Bank and not that of a workman and hence dismissed the appeal. Subsequently the appellant filed O.P. No. 330 of 1955(E) before the Travancore-Cochin High Court, praying for the issue of a writ of certiorari or other appropriate writ to quash that portion of the award which held that there was no Industrial Dispute before it and such other reliefs. This writ was dismissed by a Division Bench of the Kerala High Court on 31st January 1958 (1958 K.L.T. 613). The learned Judges held that the award passed by the Industrial Tribunal, Ernakulam, merged in the appellate order passed by the Labour Appellate Tribunal, Madras, and since the Kerala High Court had no jurisdiction to issue a writ to the said Appellate Tribunal at Madras, being outside the jurisdiction of the High Court, they dismissed the writ petition. After the dismissal of the writ petition the appellant seems to have approached the Government once again with a request to refer the dispute afresh to the Industrial Tribunal. The ground on which the appellant claimed a fresh reference was that on 31-7-1957 he came to know of certain frauds committed by the Bank on the Industrial Tribunal, by which the award, Ext. P5, was obtained. The Government refused to make a fresh reference and this fact was intimated to the appellant by order dated 16-4-1959. Thereafter on 21-5-1959, the appellant filed O.P. No. 655 of 1959 which was dismissed by our learned brother, Raman Nayar, J., and the present appeal is against that order. The 1st respondent in the O.P. and in the appeal before us is the Government of Kerala and the 2nd respondent the Bank of Cochin, Ltd., Ernakulam. 3. The learned counsel appearing for the appellant argued the case elaborately and raised several questions of law before us. He contended that there was fraud committed by the Manager in issuing Ext, P1 without disclosing the resolution of the Board of Directors, Ext. P10, in its real form. 3. The learned counsel appearing for the appellant argued the case elaborately and raised several questions of law before us. He contended that there was fraud committed by the Manager in issuing Ext, P1 without disclosing the resolution of the Board of Directors, Ext. P10, in its real form. According to the learned counsel, the resolution demoted the appellant to the rank of a clerk first and then suspended him and so at the time of his suspension and subsequent dismissal he was only a clerk and consequently he came within the definition of workman. In this view, according to the learned counsel, the award of the Industrial Tribunal was obtained by means of fraud and hence a writ of certiorari should issue to quash that award. He has cited a few authorities before us in support of his contention that when an order is obtained by fraud the said order is liable to be quashed by a writ of certiorari. Secondly, he has also cited some decisions before us for the proposition that this court has jurisdiction to quash a portion of an award; for, the appellant’s prayer in the present proceedings is to quash only that portion of the award of the Industrial Tribunal which held that the Tribunal had no jurisdiction. 4. In our opinion, before going into the above questions of law raised by the learned counsel, he has to surmount other factual difficulties in this case. The resolution, Ext. P10, is capable of not the only interpretation that is sought to be put upon it by the appellant’s counsel. Though the clause referring to the depromotion of the appellant to the post of a clerk precedes the clause suspending him for a period of six months, the resolution goes on to direct the Head Accountant, the appellant herein, to hand over charge to Mr. Antony. From this it is clear that at the time of handing over charge the appellant was Head Accountant and hence in issuing Ext. P1, placing the appellant under suspension for a period of six months and then directing him to rejoin duty as a clerk after the expiry of the period of suspension, the Manager has committed no fraud. The resolution is also capable of the interpretation that was put up on it by the Manager. 5. P1, placing the appellant under suspension for a period of six months and then directing him to rejoin duty as a clerk after the expiry of the period of suspension, the Manager has committed no fraud. The resolution is also capable of the interpretation that was put up on it by the Manager. 5. Further, the award of the Industrial Tribunal has now merged in the appellate order of the Labour Appellate Tribunal, Madras. To this effect is the finding of the Division Bench in O. P. No. 330 of 1955 (E). It is also clear from the affidavit of the appellant that he came to know about the fraud, if there be any fraud at all, on 31-7-1957 and the writ O. P No. 330 of 1955 (E) was disposed of only six months thereafter. It was open to the appellant to raise this additional plea of fraud in that O. P. itself. He has not chosen to do this and no valid explanation is forthcoming for this omission. It may also be mentioned that the Minutes Book containing the resolution was exhibited before the Industrial Tribunal and marked as Ext. 26 and if the appellant took care to look into it he would have seen the resolution then itself. Even after the disposal of the said O. P. there is a long delay of about 15 months in filing the present writ. From the date on which the appellant came to know about the fraud to the date of filing the present writ, it is about two years. The only explanation for this long delay is that the appellant has been persuading the Government during the interval for a fresh reference and he got the final order only on 16-4-1959. This, we do not think, is a legally sufficient and acceptable explanation in this case. At this stage we would make it clear that there is no rule, which lays down any period of limitation for seeking relief by way of a writ of certiorari. But, at the same time, it is well settled that a party invoking the jurisdiction of this Court under Art. 226 of the Constitution should come at the earliest possible moment and it lies within the discretion of this Court to interfere in appropriate cases, where the delay is only reasonable. But, at the same time, it is well settled that a party invoking the jurisdiction of this Court under Art. 226 of the Constitution should come at the earliest possible moment and it lies within the discretion of this Court to interfere in appropriate cases, where the delay is only reasonable. In the above circumstances we are not satisfied that the order of our learned brother, Raman Nayar, J., is in any way liable to be interfered with. Hence we dismiss the appeal, but in the circumstances of the case, without costs. Dismissed.