TaxTMI 
TaxTMI 
1989 (9) TMI 405
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.... support of the application, the second respondent stated that after the receipt of 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 r....
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....lay held immaterial and irrelevant in entertaining petition on merits," Further in a case reported in 1979-I L.L.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....
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....it-petitioner, the first respondent was not entitled to assume that there was an appeal to the writ-petitioner sent 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 Cou....
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....y shall have effect as if enacted in Act. [emphasis supplied.] Sub-section (4) of S. 49 makes it clear that the 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 ....
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.... by instituting a proceeding beyond time and there is no presumption that the delay has been occasioned deliberately or on account of culpable negligence or that 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. Hen....
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....se of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, 0 account of culpable negligence, or on account of mala fides. A litigant does 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 Cour....
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....tion. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent? 18. Of course there is no presumption that the delay is occasioned deliberately or on account of culpable negligence. If the admitted 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 issu....
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....n the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that Tribunals, particularly 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....
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....delay. 22. The management is not precluded from challenging that decision before us. If as in this case we come to the conclusion that the condonation of delay was wholly unjustified, then there would be no need for any further proceedings before the first respondent. If, on the other hand, this Court comes to the conclusion that the delay had been properly condoned, then only the question of further proceedings before the first 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 Divis....