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TMI Blog1989 (9) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order of dismissal by him he fell ill with jaundice due to water contamination and he was advised total rest for a period of three months. The next averment in the said affidavit is: .. I started moving about in the third week of October 1980.. The affidavit proceeds to state that thereafter in the first week of November 1980, he developed chest pain and after taking rest for about live weeks, he went to Nagercoil attend to certain domestic matters pile of having the severity of his condition of health. The affidavit added that he wrote to the writ-petitioner demanding reinstatement, but the writ-petitioner did not reply. There was no reference to any consultation by the second respondent with any doctor for the second illness from which he is alleged to have suffered in November 1980, nor was there any reference to appeal said to have been filed by the second respondent to the writ-petitioner. What all is mentioned in the affidavit is that he wrote to the writ-petitioner demanding reinstatement. 3. The affidavit proceeded to state that on return from Nagercoil he realised that his visit to Nagercoil aggravated his sickness and he had chest pain and the doctor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .N. 6, the Supreme Court held that obsessions with the technicalities of law and procedural requirements must be pushed in the background while dealing with industrial matters.' Further in case reported in 1975-I L.L.N. 238, the Madras High Court has held that starting point of limitation is from the date of appellate order. In this case the appellant appealed to the respondent on 6 September 1980, but no reply was received from the respondent. Further time-limit of 30 days is prescribed only in the rules and the Act does not contemplate such a time. 6. Though we are not impressed with the genuineness of the medical certificates produced by the second respondent, we cannot interfere with the acceptance of the same by the first respondent as we are exercising jurisdiction under Art. 226 of the Constitution only. We will accept the finding of the first respondent that the second respondent was ill during the periods covered by the three medical certificates. However, the first respondent was clearly in error in holding that the second respondent was continuously ill during the whole period after the receipt of the dismissal order by him. Thai finding is not in any way support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by the second respondent on 6 September 1980, and that there was no reply by the writ-petitioner thereto. 8. The third reason given by the first respondent is that as a fundamental right the second respondent can approach a Court of law for justice and justice cannot be denied merely on the ground of limitation. The first respondent has chosen to place reliance on certain observations made in Bhagwant Singh v. Union of India [A.I.R. 1962 Pun. 503], and Hindustan Tin Works, Ltd. v. Employees of Hindustan Tin to (Private), Ltd., and others [1979-I L.L.N. 6]. The first respondent failed to note that the two cases did not have any hearing on the question to be decided by the first respondent. Once there are rules prescribing a period of limitation for preferring an appeal under the provisions of the Act, then those rules have to be obeyed by the concerned parties. If a party wants to get over the rules, he must have sufficient explanation therefor and unless such explanation is tendered, it is not open to any Court to say that interests of justice would require the Court to ignore rules of limitation. 9. Another reason given by the first respondent is that the starting point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules framed under the section will be on par with the provisions of the Act itself The first respondent has ignored these provisions contained in the Act itself and chosen to think erroneously that the prescription of time-limit in the rules will not have any force as the Act does not contemplate such time-limit. The Act contemplates prescription of time-limit for filing an appeal as pointed out above. 12. The Tamil Nadu Shops and Establishments Rules, 1948, have been framed in exercise of the powers conferred by Sub-sec. (1) of S. 49 of the Act. Under rule 9(1), any appeal under Sub-sec. (2) of S. 41 shall be preferred by the person employed within thirty days from the date of service of the order terminating the services and such service shall be deemed to be effective if carried out either personally or if that be not practicable, by prepaid registered post to the last known address when the date of such service shall be deemed to he the date when the letter would arrive in ordinary course of post. There is no dispute in this case as regards the date of service of dismissal order, viz., 11 July 1980. According to the proviso to sub-rule (1), an appeal may be admitted after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was want of bona fides. The presumption, if any, would be just the other way round, Pedantic and unpragmatic approach should not be made to the matter and the Court need not be over-strict is expecting proof of the suggested sufficient cause... ' 14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the concerned party may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 16. The observations made by the Supreme Court have to be understood in the context of the facts of that case. It is seen from the facts that there was a delay of four days in the matter of preferring an appeal by the Government with respect to an acquisition of lands for a public purpose to the extent of nearly 14 lakhs rupees. In that context, the Supreme Court held that the delay should be condoned and Courts should not be zealous in dismissing petitions for condonation of delay on technical grounds. The Supreme Court has clearly pointed out in Sreenivasa General Traders and others, etc., v. State of Andhra Pradesh and others [A.I.R. 1983 S.C. 1246], that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed or qualified by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted facts in this case are taken into account, there is no doubt that the delay on the part of the second respondent is deliberate and the second respondent is clearly guilty of culpable negligence. If he is not able to explain his failure to file the appeal during the periods during which he had been admittedly not ill, there is no question of holding that the delay is not deliberate. When admittedly the second respondent could travel a distance of about 350 kms. to Nagercoil from his residence what prevented him from going to the appellate authority stationed at Madurai just 35 kms. away from his abode? We will not countenance the thwarting of the statutory rules with impunity by a litigant. 19. Learned counsel submitted that this Court should not interfere with the findings on preliminary issue in industrial matters. Reliance is placed upon the judgment of the Supreme Court in Cooper Engineering, Ltd. v. P.P. Mundhe [1975-II L.L.N. 321] and Maheswari (D.P.) v. Delhi Administrative and others[1984-I L.L.N. 1]. In the former case it was laid down that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceeding before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the Latter from Court to Court for adjudication of peripheral issues, avoiding decisions on issues more vital to them. Articles 226 and 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must, therefore, ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst respondent would arise. To apply the dictum of the Supreme Court in the aforesaid two cases to this case would mean that the management would have to wait for years for the conclusion of the proceedings before the Labour Court to get the decision on the question of limitation canvassed before us. That would be really putting the cart before the horse. 23. Hence, in our view, this is a case in which the management is entitled to approach us under Art. 226 of the Constitution of India challenging the condonation of the delay, and we are equally entitled to interfere with the decision if we find that it is not justified on the facts and circumstances of this case. 24. Learned counsel for the second respondent placed reliance on the decision of a Division Bench of this Court in Tiruchirapalli Co-operative Wholesale Stores v. Assistant Commissioner of Labour, Tricky, in Writ Petition No. 104 of 1983. That judgment was rendered on 14 September 1989. The judgment has been placed before us. We find that the Appellate Authority under the Act in that case, had accepted the bona fides of the explanation given by the second respondent in that ease. The Division Bench observed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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