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2013 DIGILAW 1031 (MAD)

Vanavar Exports v. Deputy Commissioner of Labour

2013-02-19

ELIPE DHARMA RAO, M.VENUGOPAL

body2013
Judgment M. Venugopal, J. 1. The Appellant has preferred the present two Writ Appeals before this Court as against the order, dated 21.07.2010, made in W.P.Nos.32430 and 33304 of 2006 passed by the learned single Judge in allowing the Writ Petitions filed by the second Respondents. 2. The Learned single Judge, while passing the order dated 21.07.2010 in W.P.Nos.32430 and 33304 of 2006, has inter alia observed that, ".... the Petitioners have shown sufficient cause for condonation of delay and the first Respondent ought to have condoned the delay and allowed the parties to agitate the matter on merits" and consequently allowed the writ petitions by setting aside the order dated 21.03.2006 in TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005. Further, the learned single Judge, after condoning the delay, has directed the first Respondent to number the appeals, issue notice to the second Respondent (Appellant herein) and decide the matter after hearing both the parties and pass orders on merits and in accordance with law. 3. Challenging the order, dated 21.07.2010, in W.P.Nos.32430 and 33304 of 2006, passed by the Learned single Judge, the Appellant/Management has focussed the instant two Writ Appeals contending that the impugned order suffers from wrongful exercise of jurisdiction vested on the Writ Court. 4. The Learned Counsel for the Appellant/Management strenuously submits that the Learned single Judge ought to have seen that the delay of 1186 days in preferring the appeals under the Tamil Nadu Shops and Establishment Act is an enormous one and further no valid or acceptable reasons or any sufficient cause have been shown by the second Respondents/Writ Petitioners in W.P.Nos.32430 and 33304 of 2006 for condonation of delay in question. 5. Expatiating his contentions, the Learned Counsel for the Appellant/Management contends that the first Respondent/Deputy Commissioner of Labour, Chennai, has taken into account all relevant and attendant circumstances and only on appreciation of the entire gamut of the relevant facts, has thought it fit to dismiss the TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005 on 21.03.2006, because of the reason that no sufficient cause for condoning the delay has been made out and therefore, the learned single Judge is not correct in interfering with the same under Writ Jurisdiction. 6. 6. Yet another plea projected on behalf of the Appellant/Management is that the second Respondent (writ petitioners in W.P.Nos.32430 and 33304 of 2006) has clearly averred that since the criminal case against his relative, Koteeswaran, was completed only in the month of July, 2005 he was afraid to file a case against his dismissal order and before that, for the fear that the Management may rope in also in that case, he could not prefer the Appeal in time before the competent Forum. As such, the said reason assigned by the second Respondent is not an acceptable one because of the simple reason that the criminal case against Koteeswaran Writ Petitioner in W.P.No.33304 of 2006 was over in the month of July 2005 and he should have filed the appeal in November, 2005. In fact, according to the Appellant/Management, the second Respondent in W.P.No.32430 of 2006, Anandakumar, has not assigned sufficient or reasonable cause for the condonation of delay of 1186 days in issue. 7. The Learned Counsel for the Appellant/Management strenuously takes a plea that the Learned single Judge has passed a common order in W.P.Nos.32430 and 33304 of 2006 as if the writ petitioner in W.P.No.32430 of 2006 (second Respondent in W.A.No.1996 of 2010) is also involved in the criminal case. 8. The Learned Counsel for the Appellant relies on the decision of the Hon'ble Supreme Court reported in Jagdish Narain Maltiar vs. The State of Bihar and others [ 1973(1) LLJ 474 ], whereby and where-under, it is observed and laid down as follows:- "The writ petition was filed against an order of removal from service. It was summarily dismissed on January 21, 1960 presumably because a statement was made on behalf of the State Government that he was not removed for misconduct but his services being temporary were terminated by a simple order of discharge. Appellant thereafter made representations to the Government asking for a review of his case and for grant of gratuity. In reply it was stated by the Government that the claim for gratuity could not be entertained in view of the fact his services were terminated for gross misconduct. This was in August, 1963. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a writ petition challenging the order of removal. This was in August, 1963. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a writ petition challenging the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law, he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary power in his favour. The High Court was justified in refusing to entertain the petition." 9. Lastly, it is the contention of the learned counsel for the Appellant that no acceptable reasons have been assigned by the second Respondents in W.A.Nos.1996 and 1997 of 2010 (Writ Petitioners) for condoning the delay in issue inasmuch as the delay of 1186 days cannot be construed to be a technical one. 10. The first Respondent/Deputy Commissioner of Labour, Chennai, while passing the order in TSE No.IA.17 of 2005 and TSE NO.IA.18 of 2005 on 21.03.2006, has rightly observed that, "pendency of criminal case against another employee, by name, Thiru Koteeswaran (Writ Petitioner in W.P.No.33304 of 2006) would not deter the appellant to prefer this appeal in time in any way". Likewise, while dismissing TSE No.IA.18 of 2005 on 21.03.2006, the first Respondent/Deputy Commissioner of Labour, Chennai, has, among other things, observed that, "it is well settled principle in law that pendency of criminal case is not a bar for other quasi judicial proceedings or any other similar proceedings. Even when the criminal case was pending, the Appellant (Writ Petitioner in W.P.No.33304 of 2006) could have very well filed his appeal in time and there is nothing that could prevent him from filing this appeal petition in this Forum ....". 11. It is to be borne in mind that under Rule 9 of the Tamil Nadu Shops and Establishment Rules, an appeal shall be filed within 30 days. In the instant case on hand, both the second respondents/writ petitioners have taken a plea before the first Respondent/Authority that they have been informed in police station on 28.08.2002 about the Appellant/Management terminating their services. In the instant case on hand, both the second respondents/writ petitioners have taken a plea before the first Respondent/Authority that they have been informed in police station on 28.08.2002 about the Appellant/Management terminating their services. At this juncture, one cannot ignore an important fact that both the second respondents/writ petitioners were acquitted by the Criminal Court in C.C.No.8808 of 2003 on the file of the learned VI Metropolitan Magistrate, George Town, Chennai, on 04.07.2005. From 28.08.2002 till the date of filing of TSA No.IA.17 of 2005 and TSA No.IA.18 of 2005, viz., on 03.11.2005 both the second respondents have slept over the matter or in any event, they have not moved their little finger to prefer the Appeals against their termination. 12. It is to be pointed out that the existence of sufficient cause for not filing the Appeal in time is a condition that must be satisfied before the appropriate Authority/Court and ultimately it is for the proper Authority/concerned Court to exercise its power of either granting or refusing to grant the extension of time. If the condition for condonation of delay is not fulfilled/satisfied, certainly, there is no scope for the applicability of the power to excuse the delay. It is true that when a Court of Law deals with the issue of condonation of delay, it has to adopt a liberal approach by avoiding the hyper-technical view. Also that, Law of Limitation is to serve the interest of justice and not to defeat it. 13. Indeed, condonation of delay is not an empty formality as it vests a valuable right to the other side to obtain a favourable order in its/his favour and as such, the person seeking condonation of delay is to make out a case for the said purpose, in our considered opinion. Further, when no cause has at all been shown, i.e., where no acceptable explanation has been furnished for filing the proceeding out of time, there arises no action for considering the sufficiency or otherwise or the reasons for that fact and there is no scope for the exercise of discretion. If the condition is satisfied, then only a competent Court of Law/Tribunal/concerned Authority gets a discretionary power to grant or refuse the prayer either for condonation of delay in issue or for the extension of time sought for. 14. If the condition is satisfied, then only a competent Court of Law/Tribunal/concerned Authority gets a discretionary power to grant or refuse the prayer either for condonation of delay in issue or for the extension of time sought for. 14. But, in the present cases, before this Court, the second Respondents/Writ Petitioners in W.P.Nos.32430 and 33304 of 2006 have been negligent or they remained inactive and suffice it for us to point out that the TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005 filed by them suffer from want of bonafides. Even after the disposal of the criminal case, on 04.07.2005 in C.C.No.8808 of 2003 by the Learned XVI Metropolitan Magistrate, George Town, Chennai, the unnumbered Appeal and the TSE No. IA 18 of 2005 have been filed by the second Respondent in W.A.No.1997 of 2010 before the competent authority on 03.11.2005 merely after four months from the date of disposal of the criminal case. No doubt, the length and breadth of delay is not material for condoning the delay. But at the risk of repetition, we have to point out that both the second Respondents in W.A.Nos.1996 and 1997 of 2010 (Writ Petitioners in W.P.Nos.32430 and 33304 of 2006) in their affidavits in TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005 in paragraph No.4 have not spelt out any justifiable or acceptable reasons for condoning the enormous delay. 15. Viewed in that perspective, TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005 filed by the second respondents in W.A.Nos.1996 and 1997 of 2010 (Writ Petitioners in W.P.Nos.32430 and 33304 of 2006) suffer from want of bona fides and also it points out to their inaction/negligence. The condonation of delay, while exercising the discretion by a Court of Law, is a matter of concession to be showered on the concerned Applicants or indulgence being shown to them, which one cannot claim either as a matter of routine or as an absolute right. 16. Looking at from any angle, we are of the considered view that the second Respondents in W.A.Nos.1996 and 1997 of 2010 (Writ Petitioners in W.P.Nos.32430 and 33304 of 2006) have not made out a prima facie case for accepting the reasons assigned by them in TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005. 16. Looking at from any angle, we are of the considered view that the second Respondents in W.A.Nos.1996 and 1997 of 2010 (Writ Petitioners in W.P.Nos.32430 and 33304 of 2006) have not made out a prima facie case for accepting the reasons assigned by them in TSE No. IA.17 of 2005 and TSE No. IA 18 of 2005. Also, on going through the impugned order, dated 21.07.2010, in allowing the writ petitions (W.P.Nos.32430 and 33304 of 2006) by setting aside the orders dated 21.03.2006 passed by the first respondent in TSE No. IA. 17 of 2005 and TSE No. IA 18 of 2005, we hold that the learned single judge is not correct in allowing the Writ Petitions by observing that, "the Petitioners have shown sufficient cause for condonation of delay...." Therefore, we interfere with the impugned order, dated 21.07.2010, in W.P.Nos.32430 and 33304 of 2006 passed by the learned single Judge and to prevent an aberration of justice, sets aside the same. 17. In the result, the Writ Appeals are allowed by setting aside the order passed by the learned single Judge in W.P.Nos.32430 and 33304 of 2006, dated 21.07.2010. Resultantly, the writ petitions are dismissed. Consequently, the order passed by the first Respondent/Deputy Commissioner of Labour, Chennai, in dismissing the interlocutory applications in TSA No.IA.17 of 2005 and TSA No.IA.18 of 2005, dated 21.03.2006, are restored. Connected M.Ps. are closed. However, there will be no order as to costs.