1. This appeal is directed against the order of Mohan, J., in W.P. No. 6381 of 1980 dismissing the same in limine.
2. The circumstances under which the writ petition came to be filed before this Court can be briefly set out. The petitioner, who was a Reserve Pool Mazdoor, was dismissed from service on 6th March, 1980 by order of the Deputy Chairman of the Dock Labour Board, who was the disciplinary authority. The order of dismissal was served on the appellant on 22nd March, 1980. However, he filed an appeal against the order of dismissal to the Chairman of the Dock Labour Board, the appellate authority, on 25th April, 1980, after a delay of 20 days. In his memorandum of grounds of appeal, a prayer has been added for condonation of delay in filing the appeal. In the said appeal petition the appellant has been served with a communication, dated 12th May, 1980, by the Secretary of the Dock Labour Board, which is as follows -
'With reference to his appeal, dated 24th April, 1980, I am directed to inform Shri V. Kandan, Reserve Pool Mazdoor No. 1924, that as required under clause 48 of the Madras Dock Workers (Regulation of Employment) Scheme 1956, every appeal shall be preferred within fourteen days of the date of receipt of the order appealed against. As your present appeal is time-barred, the same cannot be entertained. As desired, copies of deposition of witnesses and the entire enquiry proceedings will be furnished to you in due course.'
Aggrieved against the said order, the petitioner filed W.P. No. 6381 of 1980 and in that writ petition the said contention advanced by the petitioner was that though the appeal was filed belatedly the Appellate Authority, i.e., the Chairman, Dock Labour Board, had the power to admit the appeal after excusing the delay, that such power has not been exercised by the appellate authority and that the communication sent by the Secretary, more or less rejecting the appeal, is in contravention of Regulation 48(5) proviso of the Madras Dock Workers (Regulation of Employment) Scheme, 1956. However, the learned Judge, before whom the writ petition came up for hearing, has observed that the reasons given by the petitioner are no satisfactory, that, therefore, there is no sufficient explanation for the delay, and that as such the writ petition cannot be admitted. In this view, the writ petition came to be dismissed.
3. In this appeal, the learned Counsel for the appellant contends that the discretion either to condone the delay or refusing to condone the delay should be exercised only by the Chairman of the Dock Labour Board and not by this Court. It is also urged by the learned Counsel that the communication sent by the Secretary shows that the Chairman of Dock Labour Board did not exercise his appellate power, which includes the discretionary power provided under Regulation 48(5) proviso, to condone the delay.
4. After hearing the counsel on both sides, we are of the view the both the contentions of the petitioner should be accepted as tenable. It is no doubt true that in this case the appellant filed an appeal with a delay of 20 days. But even such appeals cannot be rejected outright. Though Regulation 48(5) provides that every appeal shall be preferred within fourteen days of the date of receipt of the order appealed against the proviso to that Regulation says that the appellate authority may for reasons to be recorded admit an appeal preferred after the expiry of 14 days. The prayer to condone the delay is part of and inherent in the appellate power. If the appellate authority considers on the explanation given by the appellant or for other reasons that the delay is to be condoned, it can entertain the appeal and dispose of the same on merits. No doubt, power to admit the appeal preferred after the period fixed under Regulation 48(5) is discretionary. But, when a statute confers discretionary power on an authority that power is for exercise and not for non-exercise. The appellate authority cannot arbitrarily say that it will not exercise the power provided for in the proviso to Regulation 48(5). In this case the matter has not gone before the Chairman of the Dock Labour Board and the Secretary himself has rejected the appeal on the ground that it is filed belatedly and the order does not show whether the appellate authority, the Chairman of the Dock Labour Board, exercised its discretionary power under the proviso and considered whether this is a fit case of condonation of the delay or not. As already stated, even in he grounds of appeal filed by the appellant, he has set out the reasons for the delay in filing the appeal and has prayed for the condonation of the delay. If the appellate authority considered the reasons given by the petitioner for the condonation of the delay and had chosen to exercise its discretion and refused to condone the delay it would have been a different matter. But the materials do not indicate that the appellant authority has exercised its power under the proviso and rejected the appeal on the ground that there is no reason for the condonation of the delay.
5. As a matter of fact the proviso to regulation 48(5) is wider in scope than the provision in S. 5 of the Limitation Act. While S. 5 of the Limitation Act imposes a duty on the party to give sufficient reasons for the condonation of the delay the power under the proviso to Regulation 48(5) indicates that the appellate authority can condone the delay for any reason whatever, provided the reasons are recorded. The learned Judge has dismissed the writ petition after holding that the petitioner has not made out a case for condonation of the delay under proviso to Regulation 48(95). We are of the view that the authority to exercise the discretionary power to condone the delay is the Chairman, dock Labour Board and if he has not performed that function this Court must direct him to perform the same, instead of looking as to whether the reasons given by the petitioner are sufficient or not for the condonation of the delay. We have to, therefore, allow the appeal, set aside the order passed in W.P. No. 6381 or 1980 and quash the order impugned in the writ petition with a direction to the appellate authority, the Chairman, Dock Labour Board, the first respondent in the writ petition, to consider the question of delay in filing the appeal petition and decide one way or the other, after exercising its discretionary power under proviso to Regulation 48(5). The writ appeal is ordered accordingly. There will be no order as to costs.
6. Since the learned Judge while dealing with the writ petition has given expression to his views in the matter and now that the order has been set aside, the appellate authority will pass orders on the question of delay on merits, untrammelled by the views expressed by this Court in the writ petition.