Rajendra Kumar Jain vs M/S Scooters India Ltd.Thru ...
2021 Latest Caselaw 3222 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 
Case :- SERVICE SINGLE No. - 6111 of 1992
 

 
Petitioner :- Rajendra Kumar Jain
 
Respondent :- M/S Scooters India Ltd.Thru M.D.And Ors
 
Counsel for Petitioner :- A.K.Chaturvedi,D.K.Dixit
 
Counsel for Respondent :- S.C.Misra,R.C.Tiwari,Subhas Chandra Pandey
 

 
Hon'ble Irshad Ali,J.

1: Heard Sri Asit Kumar Chaturvedi, learned Senior Advocate assisted by Sri Ashwani Kumar Singh, learned counsel for the petitioner and Sri R.C. Tiwari, learned counsel for respondent Nos.1 to 3.

2: The present writ petition has been filed challenging the order of termination dated 26.9.1981, passed by the respondent No.3 (Annexure-2 to the writ petition) with the further prayer to issue a writ of mandamus commanding the respondents to reinstate the petitioner in service with full back wages and all consequential benefits accrued to the post of the petitioner and to quash the order dated 23.12.1992 (Annexure-7 to the writ petition).

3: Fact of the case is that the petitioner was granted appointment on the post of Semi-Skilled Mechanist in the respondent-department on 4.3.1975. While working on the said post, a First Information Report under Section 307/34 IPC and Section 25 of Arms Act was lodged against him and a Case Crime No.560/1981 was registered at Police Station Krishna Nagar, District Lucknow. The petitioner was arrested and was sent to jail, therefore, he could not discharge his duties in the respondent-department.

4: Vide order dated 26.9.1981, the service of the petitioner was terminated on the ground of unauthorized absence from duties. The petitioner was granted bail vide order dated 30.9.1981 and thereafter, he moved an application on 26.10.1981 to permit him to join the department. The petitioner was not permitted to join then he again moved an application on 8.4.1991 and due to non consideration of the claim setup by the petitioner, the present writ petition has been filed before this Court, wherein on 2.9.1992, direction was issued to decide the application of the petitioner made for joining in the respondent-department.

5: Vide letter dated 23.12.1992, the petitioner was informed that the application filed by him on 26.10.1981 has already been decided through letter dated 30.11.1981 and a copy of the said letter was enclosed therein. The order dated 23.12.1992 was challenged by filing an amendment application in the present writ petition and the amendment application was allowed and necessary incorporation has been brought on record of the present case.

6: Submission of learned counsel for the petitioner is that without holding disciplinary proceeding, due to absence from duties, the service of the employee cannot be terminated automatically. In support of submission, he placed reliance upon a judgment in the case of Scooters India Ltd. Vs. M. Mohammad Yaqub & Another [(2001) 1 Supreme Court Cases 61].

7: His next submission is that the claim setup by the respondent that the petitioner has not informed in regard to the unauthorized absence is wholly incorrect. He invited attention at page-29 of the amended petition, which is certificate of the Superintendent of Jail that information in regard to the confinement in jail of the petitioner was furnished to the respondent-department, therefore, there was no unauthorized absence of the petitioner from service.

8: In the light of the aforesaid submission, it has been submitted that the impugned order of termination is per se illegal and the petitioner is entitled for reinstatement in service with all consequential benefits.

9: On the other hand, Sri R.C. Tiwari, learned counsel for the respondents raised preliminary objection in regard to the maintainability of the writ petition on the ground of availability of alternative remedy to approach the Industrial Tribunal in regard to the grievances raised in the present writ petition. He next submitted that there is inordinate delay in approaching this Court in filing the present writ petition. The petitioner was terminated on 26.9.1981 and has filed the present writ petition in the year 1992, therefore, there is almost 11 years delay and in case the petitioner was not vigilant to his rights, he is not entitled to get relief under Article 226 of the Constitution of India.

10: In regard to the submission advanced, he invited attention on paragraph 30 of the counter affidavit and the judgment annexed as Annexure CA-14 and CA-15 to the counter affidavit, wherein, this Court while considering the latches and delay, dismissed the writ petition, Special Appeal as well as S.L.P. by the Hon'ble Supreme Court. He placed reliance on the following judgments :-

(i) Virender Chaudhary Vs. Bharat Petroleum Corporation & Others [(2009) 1 Supreme Court Cases 297]

(ii) New Delhi Municipal Council Vs. Pan Singh & Others [(2007) 9 Supreme Court Cases 278]

11: Last submission of learned counsel for the respondents is that in regard to respondent-department i.e. Scooters India Limited, decision has been taken by the Government of India for closure of the department. On the facts and background of the case, he submits that in view of two objections, the petitioner is not entitled for relief under Article 226 of the Constitution of India. The writ petition being highly belated, is liable to be dismissed.

12: In rebuttal, Sri Asit Chaturvedi, learned Senior Advocate submitted that once the writ petition was entertained and vide order dated 2.9.1992, direction was issued to the respondent-department for consideration of application of the petitioner and to pass appropriate order, the objections of availability of alternative remedy is not available after the lapse of almost 18 years. The writ petition was entertained and direction was issued, considering this objection of availability of alternative remedy. He submits that objection of delay is also misconceived in view of the fact that the petitioner and Jail Superintendent intimated to the respondent-department in regard to the absence from duties and in pursuance to the order of this Court, the application moved by the petitioner was rejected vide order dated 23.12.1992 alleging therein that information was furnished in this regard on 30.11.1981, thus, his submission is that there is no delay in approaching this Hon'ble Court and the writ petition is well within time and once it was entertained, it cannot be thrown out on the ground of latches.

13: I have considered the submission advanced and perused the material on record of the writ petition as well as the judgments cited by learned counsel for the parties.

14: Upon consideration of the material on record, two questions arose for consideration in the present writ petition;

a) whether the petitioner can be redeligated on the availability of alternative remedy to raise industrial dispute at this stage?

b) whether the service of the petitioner can be terminated automatically vide impugned termination order dated 26.09.1981 due to unauthorized absence from duties?

15: The first question arose for consideration is that after entertaining of writ petition with a direction to pass appropriate order on the application moved for reinstatement in service after lapse of 18 years, this writ petition can be thrown out on the ground of availability of alternative remedy or not?

16: On perusal of the material on record, it is established that the writ petition was entertained and vide order dated 02.09.1992 direction was issued to the respondent - department for consideration of application of the petitioner and to pass appropriate order.

17: In the light of said direction, it will not be appropriate to redeligate the petitioner to avail alternative remedy at this stage.

18: To resolve the controversy, relevant portion of the judgments relied upon by learned counsel for the respondents are being quoted below:

a) Virender Chaudhary Vs. Bharat Petroleum Corporation & Others (Supra):

"14. He, however, filed a writ application only on or about 23rd November, 2004. The High Court may be correct in its view that the purported cancellation of empanelment of the 5th respondent was made on a wrong premise. Though the advertisement published in `Navbharat Times' mentioned `framing of charge in a criminal case' as a disqualification, the advertisement published in `The Tribune' and the `Dainik Tribune' framing of charge in a criminal case was not mentioned as a disqualification. In the application form also, the applicant was not required to furnish any information regarding any framing of charge in a criminal case. It was neither necessary nor possible for the 5th respondent to disclose the fact that two first information reports had been lodged against him and in one of them he had been charged sheeted. The purported disqualification attributed to him, therefore, led to an unjust decision. The High Court, however, in our opinion failed to take into consideration the effect of delay and latches on the part of the appellant in approaching the High Court. A writ remedy is a discretionary remedy. The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or latches, indisputably, are the relevant factors.

15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and latches.

16. In Uttaranchal Forest Development Corpn. v. Jabar Singh, this Court held: (SCC p. 137, para 43)

"43.... It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches."

17. In NDMC v. Pan Singh this Court held (SCC p. 283, paras 16-17):

"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan).

17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India).

18. In Ramdev Food Products (P) Ltd, v. Arvindbhai Ravbhai Patel it was held : (SCC p. 769, para 104)

"104... 26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc."

b) New Delhi Municipal Corporation Vs. Paan Singh and others (Supra):

"16. There is another aspect of the matter which cannot be lost sight of. Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan).

17. Although, there is no period of limitation provided for filing a Writ Petition under Article 226 of the Constitution of India, ordinarily, Writ Petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India).

18. In Shiv Dass v. Union of India this Court held: (SCC p. 277 paras 9-10)

"9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone."

19: On perusal, it is evident that the facts and circumstances of the aforesaid cases are different than the facts and circumstances of the present case, therefore, the ratio of the judgments relied upon are distinguishable and are not applicable to the present facts and circumstances of the case.

20: Accordingly, this Court refuses to redeligate the petitioner to approach the alternative remedy and proceeded to consider the claim of the petitioner on merit.

21: The moot question is that whether the absence of the petitioner was just and with reasonable cause or not?

22: It is admitted case of the petitioner that a F.I.R. under Section 307/34 IPC and under Section 25 Arms Act was registered at police station Krishna Nagar, District Lucknow against him and he was sent to jail. The petitioner was granted bail vide order dated 30.09.1981 and thereafter, he moved an application on 26.10.1981 to permit him to join in the department.

23: When no permission was accorded, he again moved an application on 08.04.1991 and when no order was passed, he filed present writ petition before this court, wherein on 02.09.1992 direction was issued to decide the application of the petitioner for joining in the respondent department.

24: Vide order dated 29.12.1992, the petitioner was informed that the application moved on 26.10.1981 was decided and information in this regard was given vide letter dated 30.11.1981 and the same was challenged by means of amendment application, which was allowed and necessary incorporation was made in the writ petition.

25: In regard to confinement of the petitioner in jail, I have perused page - 29 of the amended petition, which is certificate of the Superintendent of Jail, whereby information was furnished to respondent department in regard to confinement in jail of the petitioner. Therefore, the circumstances compelled the petitioner for absence from duties and the reason for absence from duties appears to be just and having reasonable cause.

26: It is further reflected that in regard to confinement in jail, information was also furnished by the Superintendent of Jail, therefore, the respondents cannot be permitted to raise that absence of the petitioner from duties was deliberate and willful. Therefore, the respondents would have taken care of the fact in regard to absence of the petitioner from duties.

27: It is further relevant to take into consideration that in case the respondents while taking action against the petitioner in termination of service would have provided an opportunity of hearing by following the principles of natural justice, the petitioner would have submitted its reply that due to confinement in jail, he absented from duties.

28: Law is settled that while taking action against an employee in absence from duties, the standing order which has been taken notice in termination of service of a permanent employee would be bad, if it did not purport to provide opportunity of hearing to the employee, whose service has been terminated automatically.

29: In the case of Scooter India Ltd. (Supra), Hon'ble Supreme Court has considered the issue that whether the stipulation for automatic termination of service for over strive relief would be legally bad or not and was decided in following terms:

"10. We are in complete agreement with the ratio laid down in this case as well as the observations made by this Court in respect of the stray observation in Scooters India's case (supra).

11. Therefore, it is clear that there could not be any automatic termination of the Respondent on the basis of Standing Order 9.3.12. Principles of natural justice had to be complied with.

12. The question which then arises is whether the principles of natural justice were followed in this case. As has been set out herein above Mr. Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called upon to do so. It is contended that principles of natural justice have been complied with in this case. However, the material on record indicates otherwise. The Labour Court in its Award sets out and accepts the Respondent's case that he had not been allowed to join duty. The Respondent has given evidence that even though he personally met Chief Personnel Officer he was still not allowed to enter the premises. The evidence is that in spite of slip Ext. W.2, he was prevented from joining duty when he attempted to join duty. The slip Ext. W.2 had been signed by the Security Inspector of the Appellant. This showed that the Respondent had reported for work. As against this evidence the Appellant has not led any evidence to show that the workman had not reported for duty. Even though the slip Ex. W.2 had been proved by the workman, the Security Inspector, one Mr. Shukla, was not examined by the Appellant. Further the evidence of the Senior Time Keeper of the Appellant established that the workman had worked for more than 240 days within a period of 12 calender months immediately preceding the date of termination of service. This was proved by a joint inspection report, which was marked as Ext. 45/A. It was on the basis of this material and this evidence that the Labour Court came to the conclusion that there was retrenchment without following the provisions of law. As the workman was not allowed to join duty, Standing Order 9.3.12 could not have been used for terminating his services."

30: I have gone through the relevant paragraphs referred hereinabove, wherein the Hon'ble Supreme Court after consideration of material on record came to the conclusion that retrenchment of employee was bad in law and directed for joining of duties holding the termination on the basis of standing order to be illegal and affirmed the view taken by the labour court as well as High Court.

31: Case of the petitioner is that due to absence from duties, his service was terminated without following the principles of natural justice. No disciplinary proceeding was initiated against him neither opportunity of hearing was provided to him. Therefore, the order of termination cannot be held to be just and valid. Due to non adopting of procedure of principles of natural justice, the impugned order cannot be termed to be valid and the order being violation of principles of natural justice cannot be sustained and is liable to be set aside.

32: Accordingly, the impugned orders dated 26.09.1981 and 23.12.1992 (Annexure-2&7 to the writ petition) are hereby set aside.

33: The writ petition succeeds and is allowed.

34: The respondents are directed to treat the petitioner in service and to ensure all consequential benefits admissible to his post. It is further directed that entire dues shall be paid to the petitioner within a period of one month from the date of production of a certified copy of this order.

Order Date :- 9.3.2021

Gautam / Adarsh K Singh