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2009 DIGILAW 101 (CAL)

Board of Trustees for the Port of Calcutta v. Sukdeo Ram Yadav

2009-02-16

DIPANKAR DATTA

body2009
Judgment Per DIPANKAR DATTA. J. The judgment and order dated July 24, 2008 of the Court appointed under the Payment of Wages Act, 1936 (hereafter the Act), being the competent authority, allowing an application under Section 15 thereof of the concerned employees (respondents herein) on contest and holding that they are entitled to a decree for a sum of Rs. 70,185/- against the opposite parties viz. the Board of Trustees for the Port of Calcutta (petitioners herein) and compensation for a sum of Rs. 1,40,370/-, is the subject matter of challenge in this writ application. 2. Mr. Dutta, learned counsel appearing for the petitioners contended that the impugned order is one passed without jurisdiction and, therefore, this Court ought to entertain the writ petition despite availability of an appellate forum under the Act. According to him, the claims of the employees were barred by limitation and, therefore, ought not to have been entertained by the authority. The authority without assigning any reason considered the claims to have been filed within time and thus maintainable, and therefore failed to exercise discretion in a reasonable manner. 3. The other submission of Mr. Dutta is that relevant evidence produced by or on behalf of the said Trust was not considered by the authority thereby rendering the impugned order perverse and thus vitiated. He, accordingly prayed for stay of operation of the impugned order. 4. While answering a query of Court, Mr. Dutta submitted that alternative 'remedy is not an absolute bar for entertainment of a writ application and since it is the claim of the petitioners that the competent authority acted in excess of jurisdiction vested by law, the Court ought not to refuse relief as claimed. 5. The writ petition was filed on December 2, 2008 questioning the legality and/or propriety of the order dated July 24, 2008. In terms of Section 17 of the Act, the order impugned in the writ petition is appealable within thirty days. It appears from the certified copy of the order impugned that it was made ready by September 25,2008. An appeal could have been presented by the said Trust by October 24, 2008 before the appellate forum in terms of provisions contained in the Act. No 5 appeal was, however, filed. It appears from the certified copy of the order impugned that it was made ready by September 25,2008. An appeal could have been presented by the said Trust by October 24, 2008 before the appellate forum in terms of provisions contained in the Act. No 5 appeal was, however, filed. There is no period of limitation for approaching a Court of Writ yet, it is well recognized in law that jurisdiction of the Writ Court ought to be invoked by person aggrieved by asserting his right within a o reasonable time. What period time is reasonable would necessarily depend on the facts and circumstances of each case. In State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006 , it was ruled that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be reasonable standard by which delay in seeking remedy under Article 226 can be measured. The order passed by the competent authority, in view of Section 22 of the Act, cannot be challenged by filing a suit before the Civil Court. It has not been brought to the notice of the Court that the period for preferring an appeal under Section 17 of the Act is extendable beyond the period mentioned therein. Not having preferred any appeal under Section 17 of the Act, the order allowing the Section 15 application attained finality. It is, therefore, clear that the said Trust allowed the right and the remedy provided by or under the Act to be lost and has, thereafter, knocked the doors of the Writ Court. Taking a cue from the ruling in State of Madhya Pradesh v. Bhaila Bhail (supra), this Court would consider the period prescribed for preferring an appeal under Section 17 of the Act as a reasonable period within which the said Trust ought to have assert its right by presenting the writ application before the Writ Court. It is not to say that the Court of Writ would be powerless if a litigant approaches it after lapse of reasonable period. The power conferred by Article 226 is plenary and a writ application may be entertained even after such period provided some justification is advanced or cause is shown for excusing the delay in approaching the Court. It is not to say that the Court of Writ would be powerless if a litigant approaches it after lapse of reasonable period. The power conferred by Article 226 is plenary and a writ application may be entertained even after such period provided some justification is advanced or cause is shown for excusing the delay in approaching the Court. The length or duration of the \delay would not be material what would be material in the circumstances is the justification advanced or cause shown for approaching the Court late. Even delay of long period may be condoned provided the justification advanced or cause shown is convincing and acceptable while delay of a very short duration may not be condoned if no justification/cause therefor exists or is advanced/shown. There is appearance of avoidable delay and no explanation worth the name for the belated approach is traceable in the pleadings. 6. In this connection, reference may be made to the decision Oriental Bank of Commerce v. Sunder Lal Jain and Another (2008) 2 SCC 280 wherein an order passed by the High Court staying execution of a decree passed by the Debt Recovery Tribunal in exercise of powers under Article 226 of the Constitution of India when the said decree had already attained finality due to non-filing of statutory appeal against it was held to be illegal. 7. In the circumstances, this Court is disinclined to exercise extraordinary writ powers and to entertain the writ application. 8. A few words regarding the first point agitated by Mr. Dutta. According to him, the employees had approached the competent authority under the Act with stale claims which were not maintainable in the eye of law, and the competent authority having proceeded to hold their claims to be maintainable, miscarriage of justice would occasion if now the petitioners' writ application be thrown out on the ground of delay. 9. The employees in Annexure "A" to the application filed under Section 15 of the Act had sought to explain the reasons for their belated approach. Considering the contents thereof, the competent authority was satisfied that their claims were not barred by limitation and held the application to be maintainable. In terms of provisions contained in the second proviso to Section 15(2) of the Act, the competent authority is competent to condone delay in an appropriate case. Considering the contents thereof, the competent authority was satisfied that their claims were not barred by limitation and held the application to be maintainable. In terms of provisions contained in the second proviso to Section 15(2) of the Act, the competent authority is competent to condone delay in an appropriate case. Assuming that the writ application is one which should be entertained notwithstanding the belated approach, exercise of discretion by the competent authority in favour of the employees could be a subject of scrutiny by the writ Court and interference therewith could have been 10 permissible if the discretion was exercised unreasonably or injudiciously. To give a decision on this point, it would •be imperative for the Court to look into Annexure "A" to the Section 15 application filed by the employees, purportedly containing cause(s) to enable the competent authority to entertain their claims despite delay. Regrettably, Annexure "A" to the Section 15 application does not form part of the records of the writ application. Mr. Dutta even could not place it before the Court when invited and thus failed in his attempt to demonstrate that the competent authority was wrong in giving its decision. In the absence of Annexure "A", in any event, this Court could not have given its decision on the said point. 10. The other point on which prayer has been made for staying the impugned order does not merit consideration at this stage since the Court has decided against exercise of discretion for reasons assigned supra. 11. The writ petition, accordingly, stands dismissed without any order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefore. Petition dismissed.