Telangana High Court

Md. Khaja, Nizamabad Dist. vs P.O., Labour Court Ii, Hyd. Ano. on 11 April, 2023

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 16467 of 2014
Between:
Md.Khaja
                                             ... Petitioner
                            And

The Presiding Officer, The Labour Court II and another
                                                ... Respondents

       JUDGMENT PRONOUNCED ON: 11.04.2023


    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers    :        yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?         :       yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?            :    yes



                                     ___________________
                                     SUREPALLI NANDA, J
                                                             WP_16467_2014
                              2                                      SN,J




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                 W.P. No. 16467 of 2014
% 11.04.2023

Between:


# Md.Khaja
                                                ..... Petitioner
And

$ The Presiding Officer, The Labour Court II and another
                                         .....Respondents

< Gist:
> Head Note:



! Counsel for the Petitioner : Sri P.Venkateshwer Rao
^ Counsel for the Respondents: G.P. for Labour and
                                Standing counsel for RTC




? Cases Referred:
1. 2000(9) SCC 496
2. 2008 (4) ALT 9 (SB)
3. 2013 SCC online AP 729
                                                            WP_16467_2014
                               3                                    SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                    W.P. No. 16467 of 2014
ORDER:

Heard learned counsel for the Petitioner, learned

standing counsel for RTC and learned Government

Pleader for Labour.

2. This petition is filed by the petitioner to issue a writ or

order or direction more particularly one in the nature of writ

of Certiorari calling for the records relating to the award in

I.D.No.43 of 2011, dated 03.03.2014 on the file of the 1st

respondent and quash the same by declaring it as bad,

arbitrary, illegal and consequently direct the 2nd respondent to

reinstate the petitioner into service with continuity of service,

attendant benefits with full back wages and consequently

service benefits.

3. The case of the petitioner, in brief, is as follows:

a) The petitioner was appointed as a Casual Driver in the

year 1989 and his services were regularised on 01.07.1990 at

Nizamabad Region.

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b)   The    petitioner    was   removed    from    service      vide

proceedings dated 28.12.2006 of the 2nd respondent on the

allegation of absenteeism of the petitioner from 30.05.2006 to

26.06.2006. Against the same, the petitioner filed appeal,

but the same was not considered. Thereafter, the petitioner

filed I.D.No.43 of 2011 before the 1st respondent and the

same was dismissed on 03.03.2014. Hence, this writ petition.

4. The relevant portion of the order impugned in

I.D.No.43 of 2011 dated 03.03.2014 is extracted

hereunder:

" Now, coming to the question of maintainability of petition? The law officer contended that the petition is barred by limitation. The counsel for the petitioner stated that the petitioner was innocent and hoping the department will consider his case obviously theorder of removal was passed on 12.09.2006 and the petitioner right to approach the Court accrued on that day. Petitioner filed the present petition in the year 2011 i.e. on 27.07.2011 after more than four weeks of dismissal. According to the Section 2-A (3) the person removed must approach the Court under 2-A(2) within three years from the cause of action. Obviously, the petitioner approached after the period of limitation and as such the petition is barred by limitation. Therefore, the petition is WP_16467_2014 5 SN,J

liable to be dismissed as not maintainable.

Though the punishment appears to be disproportionate and needs to be modified but however, as the petitioner approached the Court after lapse of period of limitation and as the limitation gives root to the jurisdiction. This Court will not have jurisdiction to entertain the petitioner and consequently, the petition is liable to be dismissed."

PRUSED THE RECORD

DISCUSSION AND CONCLUSION

5. A bare perusal of the record indicates that the petitioner

was appointed as a Casual Driver in the year 1999 and his

services were regularized w.e.f. 01.07.1990. The petitioner

was issued with charge sheet dated 26.06.2006 levelling the

charge of absenteeism from 30.05.2006 till 26.06.2006 i.e.

date of charge sheet. Thereafter, the petitioner was removed

from service vide proceedings dated 28.12.2006. The

petitioner challenged the said order of removal dated

28.12.2006 before the labour Court-II, Hyderabad by filing

I.D.No.43 of 2011, but the same was dismissed on

03.03.2014 and aggrieved by the same, the present writ

petition is filed.

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6. The relevant portion of the order impugned dated

03.03.2014 passed in I.D.No.43 of 2011 by the Labour

Court-II, Hyderabad extracted to above clearly

indicates that it is not an order passed on merits, but it

is an order passed rejecting the very case of the

petitioner on the ground that the petitioner approached

the Court after lapse of period of limitation and hence,

the lower Court lacked jurisdiction to entertain the

same though the Labour Court-II recorded a clear

finding in favour of the petitioner that the punishment

appears to be disproportionate and needs to be

modified.

7. The Labour Court II, Hyderabad vide its order

dated 03.03.2014 dismissed I.D.No.43 of 2011 applying

Section 2-A(3) of the Industrial Disputes Act, 1947

which reads as under:

Section 2-A(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1)."

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8. It is very pertinent to take note of the fact that

Act 24 of 2010 had been repealed vide Act No.23 of

2016, dated 06.05.2016, so admittedly the Act is not in

existence since May, 2016 onwards. It isalso pertinent

to take note of the fact that the order of removal is

dated 28.12.2006 and Act 24 of 2010 came into force

w.e.f. 15.09.2010 i.e. as on the date of removal the said

Act is not in force and the Act and also the provision

Section 2-A (3) cannot be applied retrospectively. This

Court therefore, opines that the ground on which

I.D.No.43 of 2011 filed by the petitioner on the file of

the Labour Court II, Hyderabad was dismissed vide

orders dated 03.03.2014, at the threshold itself, is

totally biased and irrational.

9. The Apex court in its judgment dated 10.12.1999

passed in Gurmail Singh v Principal, Government

College of Education and others reported in 2000(9)

SCC 496 at para 3 observed as under:

""3. Having heard learned Counsel for the parties we find that the Labour Court having held in case of the appellant whose services were terminated on 30.9.1981, that Section 25F of the Industrial Act WP_16467_2014 8 SN,J

was violated, was in error in dismissing the reference on the ground of delay as the termination was of 1981 and the dispute was raised in 1989. Similarly, the High Court in the impugned judgment committed the same error in confirming the said decision. The reason is obvious. As laid down by this Court in the case of Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr. , if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High Court as well as the Labour Court are set aside. The termination of the appellant on 30.9.1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. But so far as the back wages are concerned, he will not be entitled to any back wages from 30.9.1981 till 27.2.1989 as he had not raised any dispute during that time. Thereafter from 1.3.1989 till the date of reinstatement of the present appellant, on the facts and circumstances of the case, the respondents are directed to pay 50 WP_16467_2014 9 SN,J

per cent of the back wages towards full and final satisfaction of appellant's claim, regarding back wages. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs".

10. The Labour Court in dealing with punishment very

clearly observed that the same was disproportionate in

the given facts of the case and categorically held as

under in the 2nd last para of its judgment dated

03.03.2014 in I.D.No.43 of 2011, as extracted to below:

"If considered, what would be the appropriate punishment in these circumstances? According to the service record the petitioner's date of birth shows as 01/08/1955 and few years service only left by the petitioner if taken into service. Therefore, stopping '4' increments with cumulative effect would be just and reasonable. The petitioner will not get the back wages as he was not worked and loss of increments and back wages is a sufficient punishment. Petitioner is entitled for continuity of service but need not be granted attendant benefits. The punishment is need to be modified accordingly."

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11. In so far as the plea of the learned counsel for the

respondent in availing alternative remedy is concerned

this Court negatives the same referring to a judgment

on the subject issue in particular para 5 thereunder in

the order dated 09.04.2008 passed by the High Court at

Hyderabad in W.P.No.412 of 2006 in Mohammad Jani

Basha v M/s Mitra Tobacco Products, lease holders of

Langar Cigars Company, rep by its Managing Partner,

Nellore and another reported in 2008 (4) ALT 9 (S.B)

para 5 reads as under:

"5. It is no doubt true that the 1966 Act deals with the service conditions of the workers of the establishments, undertaking manufacture of beedies and cigars, and Section 31 thereof, provides remedy to the aggrieved workers. However, there is nothing in that Section, which bars the remedy under Section 2-A(2) of I.D.Act. The principle that a special enactment would exclude the operation of a general one, does not apply in the facts and circumstances of the present case. Further, bar of a remedy under a general enactment must be clear and unequivocal. Even where a provision in one enactment bars the remedy under the other, it was held that exclusion of remedy cannot be inferred, unless an equally efficacious WP_16467_2014 11 SN,J

one is provided for under the other enactment. Further, a Larger Bench of this Court in A.P.S.W.I.Co-operative Society Ltd's case (1 supra) held that the remedy provided for under Sections 40 and 41 of the A.P.Shops and Establishments Act does not bar the one, under Section 2-A(2) of the I.D. Act. Therefore, the view taken by the Labour Court that Section 31(2) of the 1966 Act, bars the remedy under Section 2-A (2) of the ID Act, is incorrect."

12. In so far as the judgment relied upon by the

standing counsel appearing on behalf of the 2nd

respondent on the ground of latches placing reliance in

particular on paras 28, 29, 30 and 48, of the said

judgment i.e. P.V. Narayana v APSRTC, Hyderabad and

others, dated 15.02.2013 passed by the High Court of

A.P. at Hyderabad in W.A.No.1411 of 2012 and

W.P.Nos.6449 of 2011 and 16435 of 2012 and batch

reported in 2013 SCC online AP 729, this Court

however, rejects the said plea of latches and delay

relying on para 74 of the same judgment, which reads

as under:

"74. It is true that in some cases where the delay is five years or so the Supreme Court is inclined to condone the delay but under different circumstances. When the WP_16467_2014 12 SN,J

fundamental rights are violated or where the delay is not directly attributable to the party seeking the relief or where the rights of the third parties are not intervened or in matters where seniority of employees is not finalized, the Court, would be justified to grant the relief, Kulwant Singh Gill's case (Supra), does not confer or clothe an automatic right with the employee to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the regulations or the ratio in Kulwant Singh Gill's case (Supra), where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor."

13. Taking into consideration all the aforesaid facts

and circumstances and the law paid down by the High

Court at Hyderabad referred to and discussed above

duly taking into consideration the fact that the

petitioner already superannuated and also duly taking

into consideration the fact that delay in approaching

the Labour Court had been attributed to the petitioner, WP_16467_2014 13 SN,J

in petitioner's case, by Labour Court II in its Award

dated 03.03.2014 in I.D.No.43 of 2011 and also duly

taking into consideration the observations of Labour

Court II, Hyderabad in the second last paragraph of its

judgment dated 03.03.2014 in I.D.No.43 of 2011 which

are clearly in favour of the petitioner, this Court opines

that the petitioner is entitled for relief.