M. Anantanarayanan, Offg. C.J.
(1) This is an appeal instituted by the Management of the United Bleachers (Private) Ltd., Mettupalayam, from the judgment of Veeraswami J., in W. P. No. 129 of 1962, which itself was a proceeding for the issue of a writ of certiorari, quashing the award in I. D. 41 of 1961 on the file of the Labour Court, Coimbatore. The facts have to be set forth, first, with some precision and care, for a proper appreciation of the true scope of controversy before us. For the purpose of the disposal of this appeal, we are segregating certain essential facts alone for notice, and disregarding others.
One P. Krishnan, employed as a workman in the organisation of the appellant institution, in a particular capacity of a supervisor of a shift, in the stitching department, was informed by a letter of the management, dated 3-10-1957, that his post was abolished. This was in consequence of a decision by the Management to work both stitching machines during the day-shift, and to abolish the night-shift. In order to lessen the hardship to the worker, he was offered an alternative job of a helper in the same department, admittedly, a different and lower category. On 8-10-1957, the Management terminated the services of another worker. C. Krishnan, in that lower category, so as to provide P. Krishnan with the employment offered. P. Krishnan declined, on 8-10-1957, to leave his post of supervisor in the stitching section, and to work as a helper. He also declined, according to the Management, to receive a 'show cause' notice for alleged misconduct. He was then dismissed form service, and a dispute was raised on this issue, which was the subject matter of a proceeding before the Labour Court. It ended in an award dated 10-3-1958, directing P. Krishnan to be reinstated in service.
(2) Meanwhile, the workers comprising the Union had taken up the question of the retrenchment of C. Krishnan, in the inferior category of helper, on the ground that this was not justified. That separate industrial dispute also ended in favour of the contention of labour, and the Labour Court gave an award to that effect, dated 15-5-1958. According to the management, they then found themselves in a real difficulty in implementing the two awards, because the cumulative effect of the awards was that the Management could not offer the post of the helper to P. Krishnan, but had to retain or reinstate C. Krishnan, while the management was compelled to continue P. Krishnan as a supervisor in the stitching section, according to them, a post which ought to be retrenched in the interest of economy. Some correspondence followed, into the details of which we need not here enter. One matter stands clear, and that the award of the Labour Court with regards to P. Krishnan was not implemented, according to the contents of Labour (I. D. 1 of 1958), and that there were certain proceedings in consequence, a prosecution of the management under a relevant section of law, in the court of the District Magistrate, Coimbatore.
They resulted in a conviction; but, on an appeal to the District and Sessions Judge, the Management was acquitted; throughout, the claim of the management was that there was no intentional failure to implement the award. On 29-5-1958, the management dismissed a large number of workers of the establishment for alleged participation in a strike, and that gave rise to a third industrial dispute I. D. 69 of 1958. That culminated in certain writ proceedings, and a pending writ appeal. According to the case of the of the Union, the delay in making the reference by the State Government, in the present industrial dispute, was on account of these circumstances, as we shall see later, the question of delay is one of the relevant facts in the present proceedings.
(3) The Labour Court held, by the award which was the subject of the writ petition before the learned Judge (Veeraswami J.) that the dismissal of P. Krishnan, whose case alone now concerns us, was wrongful for failure of the Management to observe the provisions of S. 25(g) of the Act, which relates to the principle of retrenchment that the last to come, or to be employed, must be the first to go, and that retrenchment can only be in that order. We might here conveniently note that the Management attempted to raise the argument that every separate section of supervisors in the Stitching establishment should be considered as an independent category, in which case the retrenchment of P. Krishnan could be technically justified. The Labour Court specifically overruled this contention, and came to the conclusion that the dismissal of P. Krishnan was wrongful. But, curiously enough, the logical consequence of this conclusion was not embodied in the award, owing to one circumstance. It appears that, during proceedings in the Labour Court, there was an admission by P. Krishnan, or at least, a concession that he would be willing to be employed as a helper in the inferior category, even if he could not be reinstated in the grade of supervisor, the Labour Court hence directed the reinstatement of P. Krishnan, in the category of helper.
(4) In substance, Veeraswami J., held, and if we may say so with respect, justifiably on the record that there could be no reinstatement of P. Krishnan, directed, with regard to the inferior category of helper. Actually, that would complicate matters a great deal, for, the vacancy in that category was created by the dispensation of the services of C. Krishnan, which has led to an independent industrial dispute culminating in the award. Once the Labour Court held that P. Krishnan was wrongly dismissed with regard to the post of supervisor, it followed that the erroneously retrenched employee would have to be reinstated in the post that he was occupying; the repercussions of that measure on other persons in the same grade, would have to be worked out, and cannot concern the court. But, with regard to one important ground raised by the management, viz., that the laches negligence of the worker or the Union in advancing this industrial dispute, constituted a factor for consideration of court entitling the management to plead that, on that account, no relief should be given, the learned Judge overruled the argument upon considerations which fund no place in the award itself.
It is pleaded by learned counsel on behalf of the management (Sri V. Thyagarajan) (1) that the question of laches is relevant, and not merely this, but an adequate factor under certain circumstances, which will disentitle, the worker to any relief; (2) that this ground was specifically put forward by the Management in their affidavit in the Labour Court; (3) that this ground has not been referred to by the Labour Court anywhere, in its award; (4) that therefore, the learned Judge (Veeraswami J.) was in error in referring to a matter which does not appear ex facie in the award, in canvassing facts not comprised in the award, and in condoning the laches as a consequence, and (5) that, similarly, the learned Judge was in error in directing not merely the restoration of the worker in the category of supervisor but also the payment of the entire a back wages; the contention is that, on the aspect of back wages, the factor of laches or delay will be crucial.
(5) Per contra: learned counsel for the Union Mr. Dolia, argues that on the strength of certain decisions which we shall immediately refer to, the aspect of laches or delay in making the reference cannot at all be relevant, and ought not to impede the court in granting relief. The argument of learned counsel is that delay occurred under circumstances of the criminal proceedings that we have earlier referred to, in the wake of the alleged failure of the management to implement the earlier award. Not merely, this; but there was also the matter of the dispensation of the services of a number of workmen for an alleged strike, and the agitation by organised labour in consequence. It is strenuously contended that, once, after the failure of conciliation, the is an industrial dispute raised by a reference made by the State Government under S. 10, the question of anterior laches or delay cannot be canvassed at all. It was also contended that the learned Judge was not in error in traversing facts not strictly appearing in the record, for the purpose of dealing with this matter of laches or delay. Authorities are cited for the proposition that, once it has been held that retrenchment was wrongful and that S. 25(g) was infringed, this constitutes a use of the power of retrenchment, mala fide or as an 'unfair trade practice', which would entitle the workman to reinstatement, irrespective of delay and whether the workman has found alternative employment elsewhere.
We might briefly deal with the authorities on this aspect, to which our attention has been drawn, before finally disposing of the writ appeal itself. In our view, the appeal seems to require only a certain clarification, in the light of the directions made by the learned Judge for reinstatement of the worker in the category of 'supervisor' and payment of back wages.
(6) In Vedachala Mudaliar v. Central Road Traffic Board Madras : AIR1948Mad454 a bench of Rajamannar C. J. and Satyanarayana Rao J., held that it was well established that, in certiorari, the court could not take notice of any fact 'which does not appear on the fact of the order'. The authorities cited for this decision are Halsbury's Laws of England Vol. XI page 889 and the King v. Liston, (1793) 101 ER 189. Certainly we do not find in the Award itself any specific treatment of the question of laches, though there is one somewhat oblique reference. Equally, we must accept the contention of the management that, in paragraph 7 of the affidavit, the management did submit that the delay and laches on the part of the Union in raising he dispute, disentitled the worker to any relief. Under those circumstances, this much at least seems clear to us that, unless it can be shown as a question of law that he ground of laches is altogether irrelevant, it is the Labour Court that must now be directed to deal with that objection, upon the merits; the learned Judge could not really dispose of this ground of facts outside the award itself, and not specifically adverted to therein.
(7) Turning to decisions upon the question of the relevance of laches of delay, the first that may be cited is Swadesamitran Ltd v. Their Workmen, : (1960)ILLJ504SC . That is also a decision cited by the labour court, and there is actually n extract from that judgment in the award. The decision is authority for the view that, once it is found that retrenchment was unjustified and improper, the court alone is clothed with the duty of shaping the necessary relief, such as re-instalment, irrespective of other considerations like the convenience of the employer, the fact that he has engaged other workmen who might be affected, the lengthy nature of the litigation in regard to the dispute, or the fact that the workman himself has been employed elsewhere in the meantime. In Shalimar Works Ltd v. Its Workmen, : (1959)IILLJ26SC we have what would appear to be a converse case of relief declined on the ground that the industrial dispute relating to non-employment of certain dismissed workmen was referred for adjudication after a lapse of four years, without specifying the names of the concerned workmen; but, indisputably, the facts appear to be quite special, and it is difficult to spell out any general proposition of law from the case. All that can be said is that, under such circumstances of unreasonable and unjustified delay in raising the dispute, that would be a relevant factor for the consideration of court and might even entitle the court to decline relief altogether.
The last case is Bombay Gas Co. v. Gopal Bhiva : (1963)IILLJ608SC . That case really relates to S. 33C(2) of the Act, and it makes a distinction between a claim under that provision of law, and other claims like a claim for bonus. Where a claim under Section 33C(2) is in question, which was based in the case on an Award and intended as a mere execution of that Award, their Lordships of the Supreme Court held that limitation cannot be introduced as a factor disentitling relief, on any academic ground of social justice. If limitation is to enter into the picture at all, it could only be by legislative enactment. The dicta in Management of Chandramalai Estate v. Its Workmen, : (1960)IILLJ243SC are also relevant here, for, the Supreme Court held, on the facts of that case, that the mere circumstance that the workman did not raise a dispute all 1955, though the arrears of allowance related to the period 1949 to 1953, was not a sufficient ground for declining relief.
(8) It appears to us that an analysis of these decisions leads to the conclusion that, while the time that subsequently elapses, once the industrial dispute has been raised, would, of course, be quite irrelevant in the consideration of relief, the delay that might have occurred between the occasion for the dispute, and the agitation or complaint by labour which leads to the reference, might be one relevant circumstance in shaping itself. For instance, it would have an obvious and indisputable significance with regard to the matter of the period for which the worker, even if the management is to be directed to reinstate him, might be entitled to back wages. But, while the ground of delay is relevant, there are decisions of the Supreme Court, wherein delay per se has not been held to be any adequate ground for declining relief, particularly where the dismissal or retrenchment is illegal and, therefore, amounts to an 'unfair trade practice'. But it is clear that everything will depend on the period of delay, the facts which occasioned the delay, and the degree of negligence with which organised labour could be rightly taxed.
We agree that this is entirely a matter for the Labour Court to decide, upon the facts, and in the light of the guiding principles to be found in the authorities. When the ground was raised in the averments of the record, and the Labour Court did not deal with the ground, this court would really have no jurisdiction to this court would really have no jurisdiction to proceed with it in a matter of certiorari, and to hold that laches did not disentitle the concerned party to relief. Equally, the direction with regard to payment of back wages upto the time that the dispute was raised, would have to be set aside, as that is a matter primarily for the decision of the labour court.
(9) Under the circumstances, we dismiss the appeal, subject to certain modifications of the direction in the judgment of Veeraswami J. The finding that the retrenchment is illegal will stand. The relief of reinstatement has necessarily to be considered with regard to the past form which the worker was retrenched, namely, of supervisor in the concerned category. The claim for back wages cannot be questioned, on the ground that the concerned worker was employed elsewhere, or was engaged in other business during the period of his non-employment for, we find that evidence was adduced and there is a specific conclusion of fact of the Labour Court on that aspect. In the release of the proceedings occasioned by the judgment of the learned Judge, the parties will not be entitled to file any additional pleadings; but they will be entitled to adduce additional evidence if desired. The question of back wages will have to be confined to the period from the date of the discharge of the worker till the date on which the dispute was raised by the Union, with regard to the subsequent period, there is really no room for controversy. The question whether there was delay or laches on the part of organised labour and whether this would disentitle the concerned worker to the relief either of reinstatement or of back wages or of both must be left to the decision of the labour court, upon the facts of record, and the principles applicable, as set forth in the authorities of the available case law. We have already referred to certain of the decisions cited before us. The appeal is accordingly allowed in part.
(10) The amount of Rs. 250 paid to the worker towards back ages under directions of this court pendente lite will abide the ultimate decision of the labour court, and its award as to any liability for repayment.
(11) Appeal partly allowed.