The Management of M/s Hyderabad Industries Limited v. The Presiding Officer, Additional Industrial Tribunal-cum-Additional Labour Court

Order

By Award dated 15.02.2007 the Additional Industrial Tribunal- cum-Additional Labour Court, Hyderabad, allowed I.D.No.32 of 2003 in part. Aggrieved by the reliefs granted and the relief denied respectively, both the parties to the I.D. are before this Court. Writ Petition No.12295 of 2007 is filed by M/s.Hyderabad Industries Limited (hereinafter referred to as ‘the management’) and Writ Petition No.19258 of 2007 is filed by K.Sangaiah (hereinafter referred to as ‘the workman’). The workman entered the service of the management as a Helper on 08.09.1977. He was subjected to disciplinary proceedings under charge sheet dated 19.06.1995 in connection with his unauthorized absence from duty from 01.06.1995 till the date of the charge sheet. By his reply dated 27.06.1995 the workman stated that he went to his native place in connection with his personal affairs, fell ill there and could not therefore return. He stated that he had taken treatment and requested the management to take him back on duty. He further stated that henceforth he would attend to his duties properly. Dissatisfied with his explanation, the management issued notice of enquiry dated 29.06.1995 proposing to hold an enquiry into the matter. As the notice was returned with the endorsement that the addressee had left without intimation, the management resorted to substituted service through publication in two daily newspapers. The petitioner thereafter participated in the enquiry which culminated in a finding that the alleged misconduct was duly proved. Basing thereon, the management issued the second show cause memo dated 27.09.1995 enclosing a copy of the enquiry report and directing the workman to show cause as to why his services should not be terminated. In his reply dated 04.10.1995, the workman stated that henceforth he would perform his duties properly and requested that he may be taken back on duty. By order dated 01.11.1995, the management terminated the services of the workman with immediate effect. This order was sent by Registered Post with Acknowledgement Due to the workman on

08.11.1995 but was returned with the endorsement ‘refused’. This endorsement was dated 16.11.1995. Nearly either years thereafter, the workman addressed letter dated 16.05.2003 to the management stating that after he submitted his explanation to the second show cause memo dated 27.09.1995, no final orders had been passed or communicated to him till that date. He further stated that he had approached the management on a number of occasions but was informed the orders passed by management would be sent to him in due course. Claiming that he had not received any such orders, he requested the management to forthwith furnish a copy, if any order was passed against him. In response, the management by letter dated 12.06.2003 adverted to the fact that it had intimated the workman of his services being terminated under the registered letter No.1171 dated 08.11.1995 which had been re-directed by the postal authorities and that the amount due to the workman as unclaimed wages had also been paid by it to the Andhra Pradesh Labour Welfare Board in September, 2001. The management further stated that it would not be out of place to mention that the workman had been apprised of the same when he had approached it. A copy of the termination order dated 01.11.1995 was however enclosed. The petitioner then filed the subject I.D. before the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947. Therein, he claimed that he came to know of his termination from service only under the management’s communication dated 12.06.2003 and assailed his termination on various grounds. The management contested the claim of the workman on merits and also on the ground that his claim was a stale one as he had filed the I.D. after a lapse of nearly 8 years.

The Labour Court, in the first instance, rendered a finding on

13.09.2005 that the domestic enquiry held against the workman was valid. This Court, by order dated 31.10.2006, in Writ Petition No.18101 of 2006 set aside the said finding and remitted the matter to the Labour Court for consideration afresh. The Labour Court by order dated

08.01.2007 held that the domestic enquiry was not valid and directed the parties to adduce evidence before it. Thereupon, the management examined two witnesses and marked 18 exhibits while the workman examined himself and adduced 7 documents in evidence. The Labour Court, upon consideration of the case, believed the workman’s version as to why he remained absent from duty. As the disciplinary proceedings were limited only to a particular period of absence, it observed that the past absence could not be taken into consideration. Dealing with the management’s contention that the inordinate delay in the filing of the I.D. was fatal to the workman’s case, the Labour Court held that the evidence on record was insufficient to show that the workman had personal knowledge about the termination order till he received the same along with the management’s letter dated 12.06.2003. The Labour Court directed the management to reinstate the petitioner in service with continuity of service and attendant benefits. Being of the opinion that the workman had not taken proper steps to pursue his remedy till the date of the filing of the subject I.D. in the year 2003 though the termination order was passed in the year 1995 and also on the ground of ‘no work, no pay’, the Labour Court held him to be disentitled to back wages. Hence, these writ petitions by both parties. Sri M.Radha Krishna Murthy, learned counsel for the management, strenuously contended that the Labour Court erred in entertaining the subject I.D. in the light of the unexplained delay on the part of the workman in raising the dispute. He submitted that the Labour Court completely overlooked the returned envelope bearing the endorsement ‘refused’ (Ex.M.15), which amounted to ‘deemed service’, consequently imputing knowledge to the workman of his termination from service. He further submitted that in any event, the workman was not entitled to back wages owing to the long lapse of time between the date of his termination from service and the institution of the case which proved that he would have been employed elsewhere. The learned counsel relied upon case law to support his contentions. Per contra, Sri I.Mallikarjuna Sharma, learned counsel for the workman, contended that once the Labour Court entertained the dispute and adjudicated the same on merits, the issue of delay became purely academic and therefore ought not to be raised or entertained at this stage. The learned counsel pointed out that the management had itself resorted to substituted service for the purpose of intimating the initiation of the enquiry but no such steps had been taken with regard to the intimation of the termination of his client from service. The learned counsel therefore contended that his client could not be attributed with knowledge of the termination order. Further, as the Labour Court, being the Court of first instance, had returned a finding in favour of the workman in this regard, the learned counsel would argue that this Court should not interfere with the same. Dealing with Ex.M.15, the learned counsel submitted that once his client denied having refused to receive the same, the burden was upon the management to prove to the contrary by examining the postman. As it failed to discharge this burden, he argued that there could be no presumption against his client. He further submitted that as the Labour Court had not framed a preliminary issue on this aspect and had adjudicated the matter on merits, the same could not be raised at this stage to undo the decision of the Labour Court. As regards the denial of back wages, the learned counsel submitted that the Labour Court erred in applying the principle of ‘no work, no pay’ to the case. He submitted that given the findings rendered in favour of the workman, the Labour Court ought not to have denied back wages to him. The contention of Sri I.Mallikarjuna Sharma, learned counsel, that this Court cannot go into the aspects of delay and presumption of deemed service as the Labour Court had adjudicated the matter on merits, does not warrant acceptance. Irrespective of whether a preliminary issue was framed by the Labour Court or not, the fact remains that the management specifically raised the issue of delay as a defence and the Labour Court dealt with it. Similarly, the management pressed into service the presumption arising out of the refusal of the termination order under Ex.M.15. Merely because the Labour Court was disinclined to accept these pleas and the matter was thereafter adjudicated on merits, the power of this Court in exercise of certiorari jurisdiction to go into these aspects would not be precluded or shut out. Though this Court would not convert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence while exercising certiorari jurisdiction, it would certainly correct gross errors of jurisdiction including those resulting from flagrant disregard of law or the rules of procedure. The argument advanced is that the Labour Court completely overlooked Ex.M.15 and the statutory presumption which arose from the refusal on the part of the workman to receive the same. The aspect of delay on his part in approaching the Labour Court being interlinked, the same would also be subject to review by this Court. The contention of the learned counsel to the contrary cannot therefore be countenanced. As the domestic enquiry held against the workman was found to be invalid, which finding is not under challenge before this Court, the proceedings of the said enquiry pale into insignificance. The matter therefore turns upon the evidence adduced by the parties before the Labour Court. The preliminary issue which had to be decided was with regard to the maintainability of the I.D. as the management specifically raised the issue of delay on the part of workman in instituting the case. In the context of delay in the filing of the I.D., the knowledge of the workman as to his termination from service becomes crucial. The factual concatenation narrated s u p r a clearly indicates management was very much serious about the disciplinary proceedings. The averment to the contra by the petitioner to the effect that he was lulled into believing that nothing would happen and that he was mollified by stating that the enquiry was only for record purpose and that no action would be taken against him, is not borne out by facts. The workman’s claim that the management continued to get things done by him even after 1995 as he was well connected politically, is also not proved by any evidence. The contents of his letter dated 16.05.2003 also speak against the version put forth by the workman before the Court. The issue however would be whether the ‘refusal’ by the workman to receive Ex.M.15 would amount to ‘deemed service’ and what would be the import thereof. Section 114 of the Indian Evidence Act, 1872 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (f) thereunder details that the Court may presume that the common course of business had been followed in particular cases, but the Court shall have regard to the fact once a letter is shown to have been posted, whether the usual course of the post was interrupted by disturbances, before applying the maxim to a particular case to presume that the letter was received. Similarly, Section 27 of the General Clauses Act, 1897 stipulates that service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The presumption which arises under the above statutory provisions is of course rebuttable. As to what should be the evidence to rebut such a presumption would vary from case to case. I n PUWADA VENKATESWARA RAO v. CHIDAMANA VENKATA RAMANA[1], the Supreme Court observed that it was not always necessary to produce the postman who tried to effect service and that the denial of service by a party may be found to be incorrect from its own admission or conduct. In HARCHARAN SINGH v. SHIVRANI[2], the majority opinion of the Court was: “7. ……… Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act.” I n ANIL KUMAR v. NANAK CHANDRA VERMA[3], the Supreme Court, while considering various High Courts’ decisions which held to the effect that a bare statement on oath denying the tender and refusal to accept delivery was sufficient to rebut the presumption of service, held that in its opinion there could be no hard and fast rule on that aspect. The Supreme Court observed that unchallenged testimony in certain cases may be sufficient to rebut the presumption but if the testimony is itself inherently unreliable, the position may be different. The Court therefore concluded that it would always be a question of fact in each case whether there was sufficient evidence to discharge the initial burden. In JAGDISH SINGH v. NATTHU SINGH[4], the Supreme Court, dealing with a case where notices were refused by the addressee, held that the presumption under Section 27 of the General Clauses Act, 1897 would apply. In P.T.THOMAS v. THOMAS JOB[5], the Supreme Court held that there was no obligation to examine the postman once the presumption under Section 27 of the General Clauses Act, 1897 stood attracted on facts. In K.BHASKARAN v. SANKARAN VAIDHYAN BALAN[6], the Supreme Court was dealing with a notice which was returned as ‘unclaimed’. Relying on its earlier Judgments in HARCHARAN SINGH2 and JAGDISH SINGH4, wherein it was held that a notice refused to be accepted can be presumed to have been served, the Court held that there was no significant difference between return of notice on the ground of ‘refusal’ and being ‘unclaimed’. In BASANT SINGH v. ROMAN CATHOLIC MISSION[7], the Supreme Court having found that once the summonses were sent by registered post to the correct and given address, the defendant’s own conduct becomes important. Applying principle in PUWADA VENKATESWARA RAO1, ANIL KUMAR3 and BASANT SINGH7 to the case on hand, the incomprehensible silence on the part of the workman for nearly eight years in spite of receiving the second show cause memo dated 27.09.1995 threatening his termination from service speaks volumes and belies his claim of ignorance. In the light of this silence coupled with the refusal to receive Ex.M.15, the workman must be deemed to have knowledge of the contents thereof as per the ratio in HARCHARAN SINGH2. In M/S.TRINA ENGINEERING COMPANY (P) LTD. v. THE SECRETARY (LABOUR) AND OTHERS[8], a learned Judge of the Delhi High Court, dealing with a case arising under the Industrial Disputes Act, 1947 wherein the management had sent letters to the workman at the correct address which were returned with the endorsement that the addressee was not available, observed that it would not be necessary for the management to produce the postman to show that the letters were sent. The Court deemed it to be proper service of the letters. In M.A.GHANI v. P.RAMI REDDY[9], a learned Judge of this Court, dealing with statutory presumption of service, observed: “5. In view of Section 114 of Evidence Act, the endorsement on the envelope, made by the postman who is a public servant discharging his official duty, can be presumed to be true. The contention of the learned counsel for the appellant that since the respondent failed to adduce evidence to show that the postman made efforts to serve the notice on some of the members of the family of the appellant in his house or the servant in the house of the appellant by the postman, even if appellant was absent it cannot be said that there was a valid service of notice to quit on the appellant, cannot be accepted. As stated earlier in view of Section 114 of Evidence Act a presumption can be drawn that the endorsement made by the postman that appellant was absent is true. Therefore it is for the appellant to establish that he was available and that the endorsement made by the postman is not correct. But there is no such evidence on record.” In MEMON ADAMBHAI HAJI ISMAIL v. BHAIYA RAMDAS BADIUDAS[10], a Full Bench of the Gujarat High Court, dealing with a registered letter which was returned with the endorsement of ‘refusal’, observed that the presumption which arose out of the said fact can be rebutted by the addressee leading evidence to the satisfaction of the Court. In the present case, the workman admitted during his cross- examination before the Labour Court that the address mentioned on Ex.M.15 was the correct address. He however stated that it was not true to suggest that Ex.M.15 was refused to be received and as such the postal authorities returned the same to the management. Except for this bare denial, the workman did not adduce any evidence to discharge the burden of disproving the presumption. There is no other circumstance to rebut the presumption which arose upon endorsement by the postal authorities that Ex.M.15 was refused. As stated by the Supreme Court in ANIL KUMAR3, the conduct of the addressee in such cases becomes relevant. In spite of the threat of termination of his services under the second show cause memo dated 27.09.1995 the continued silence of the workman assumes great significance. Admittedly, he was not paid any amounts thereafter and continued to be out of duty during this period. His version that he was made to believe that no adverse action would be taken against him and that he continued to do works for the management, is not supported by any evidence. Till the year 2003 the workman did not choose to lift his little finger to enquire about the result of the disciplinary proceedings. These facts lend support to the presumption which attaches to the refusal of Ex.M.15. The effect thereof being that he was aware of his termination from service thereunder. The next question which would arise, given the presumption of knowledge of his termination from service in the year 1995 itself, is whether the delay on the part of the workman in approaching the Labour Court would be fatal to his claims. In STATE OF M.P. v. NANDLAL JAISWAL[11], the Supreme Court, dealing with the issue of delay, observed: “24. ……… If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. ……… Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third-party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third-party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.” It is no doubt true that the Supreme Court in AJAIB SINGH v. SIRHIND CO-OP. MARKETING-CUM-PROCESSING SERVICE SOCIETY LTD.[12] held that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to proceedings under the Industrial Disputes Act, 1947 and relief could not be denied to the workman merely on the ground of delay. In BALBIR SINGH v. PUNJAB ROADWAYS[13], the Supreme Court, while dealing with a case where the plea of delay had been raised by the employer, observed that whether relief should be denied to the workman on the ground of delay or whether it should be appropriately moulded would be at the discretion of the Tribunal depending on the facts and circumstances of the case. Such discretion, as pointed out, has to be exercised judicially. In NEDUNGADI BANK LTD. v. K.P.MADHAVANKUTTY[14], the Supreme Court, dealing with a delay of 7 years in raising the dispute, held that even if law does not prescribe any time limit for reference of a dispute under Section 10 of the Industrial Disputes Act, 1947 such power could not be exercised at any point of time and to revive matters which had already been settled. Such power, according to the Court, was to be exercised reasonably and in a rational manner. As to when a dispute can be said to be stale, the Court opined, would depend on the facts and circumstances of each case. Relevant to note, though AJAIB SINGH12 was not referred to in NEDUNGADI BANK LTD.14 the same learned Judge who was a member of the Bench in AJAIB SINGH12 was also a member in the Bench which rendered NEDUNGADI BANK LTD.14 Therefore, the said Judgment was not delivered in ignorance of the law laid down in AJAIB SINGH12. U.P.STATE ROAD TRANSPORT COPORATION v. BABU RAM[15]; ASSISTANT ENGINEER, C.A.D., KOTA v. DHAN KUNWAR[16]; MANAGEMENT OF M/S.INDIAN IRON AND STEEL CO. LTD. v. PRAHLAD SINGH[17] and KRISHI UTPADAN MANDI SAMITY, MANGLOR v. PAHAL SINGH[18] are instances where the Supreme Court, dealing with matters arising under the Industrial Disputes Act, 1947, held that delay on the part of the workman would be fatal. Reconciling these Judgments and light of observations made in BALBIR SINGH13, it would depend upon the facts of each case as to whether the delay therein would be fatal or whether it can be taken into consideration for moulding the relief. Normally, delay would not be held against a workman who, in most cases, would be half literate or illiterate and unaware of his rights. That is the reason why Courts are usually lenient in dealing with such cases. However, such lenience would not be warranted if it is established that the workman was not unaware and ignorant of his rights. In the present case, admittedly the workman was an elected Working Committee Member of the management’s recognized Trade Union; he was nominated to the post of Director of the Co- operative Credit Society and also as Director of the Consumer Co- operative Society. He was elected as a Joint Secretary for the recognized Trade Union in the year 1988 and was entrusted with the additional position of Health Secretary to look after the health related problems in ESI Hospital and other recognized hospitals. He further claimed close association with a former Minister. These circumstances clearly demonstrate that the workman cannot be equated with other members of his ilk who could, in normal circumstances, claim ignorance of their rights as a reason to explain the delay on their part, if any, in agitating their grievances. Being an active Trade Unionist, the workman cannot claim ignorance of his rights or seek the standard of lenience that would be shown by Courts to cases involving delay on the part of uninformed workmen in seeking redressal of their grievances. As matters stand, the workman must necessarily be imputed with the knowledge of his termination from service owing to the presumption that attaches to the refusal to receive Ex.M.15 termination order in the year 1995. His continued inaction and silence thereafter belie his claim of ignorance of such termination. Given circumstances, the delay on his part in approaching the Labour Court stretching over nearly 8 years is fatal to his claim and would pre-empt examination of his case on merits. Though the workman was reinstated in service pursuant to the Award under challenge on

30.07.2007, it is stated by Sri M.Radha Krishna Murthy, learned counsel for the management, that the workman stopped attending to his work from 06.05.2009 leading to issuance of fresh disciplinary proceedings. Be that as it may. The Award of the Labour Court, overlooking the crucial aspect of delay by completely ignoring Ex.M.15 and holding in favour of the workman on merits, cannot therefore be sustained and is accordingly set aside. In the result, the challenge of the workman with regard to denial of back wages under the said award becomes redundant. The management’s Writ Petition No.12295 of 2007 is allowed and the workman’s Writ Petition No.19258 of 2007 is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. _______ DECEMBER, 2010. VGSR [1] AIR 1976 SC 869 [2] AIR 1981 SC 1284 [3] AIR 1990 SC 1215 [4] AIR 1992 SC 1604 [5] (2005) 6 SCC 478 [6] AIR 1999 SC 3762 [7] AIR 2002 SC 3557 [8] 2006 LLR 51 [9] 2003 (3) ALT 120 [10] AIR 1975 GUJARAT 54 [11] (1986) 4 SCC 566 [12] (1999) 6 SCC 82 [13] (2001) 1 SCC 133 [14] (2000) 2 SCC 455 [15] 2006 AIR SCW 3457 [16] AIR 2006 SC 2670 [17] AIR 2001 SC 69 [18] 2007 AIR SCW 4349