JUDGMENT
Khwaja Mohammad Yusuf, J.
1. On 5th January, 1958 the writ petitioner was appointed as Watchman under the Commissioners for the Port of Calcutta. It is stated that the said Port Commissioners was an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and the petitioner was Workman within Section 2(s) of the Act. The provisions of the Calcutta Port Act, 1890 was applicable and under the said Act the establishment was a Major Port and the respondent No. 2 was the appropriate Government. On 12th December, 1967 the petitioner was charge-sheeted on the allegation of submission of false certificate of National Volunteer Force training. A disciplinary proceeding was started and the petitioner was removed from service with effect from 11th February, 1969. He preferred an appeal before the Deputy Chairman of the Port Commissioners and the petitioner was reinstated with effect from 29th April, 1969. The petitioner became an office bearer of the Watchmen Committee to focus the grievance of the Watchmen and he took a leading part in the agitation before the Chairman of the Port Commissioners relating to a dead body of one Amal Chakraborty, a fellow Watchman, who was stabbed to death by miscreants while on duty and the rehabitation of his family. This trade union activity of the petitioner earned displeasure of the Management and he was finally dismissed on 10th August, 1970 by a communication dated 8th August, 1970 in terms of Clause 1 of the Further Conditions of Service which is ab initio void because of non-compliance of Section 25(F) of the said Industrial Disputes Act. The petitioner states that Clause 1 of Further Conditions of Service of the employee by giving a notice and without assigning any reason is opposed to public policy and void Under Section 23 of the Contract Act. He appealed against the Order of termination of service and made representations to the Chairman of the Port Commissioners on 12th August, 1970 and the Chairman assured the National Union, Calcutta Port Sramik Union and Calcutta Port and Dock Workers’ Union that he would give a personal hearing before taking a final decision but to no effect. On 14th September, 1970 the petitioner protested against the act of the Chairman and requested him to reconsider the appeal/representation. The Chairman then gave personal hearing on 30th November, 1970 and assured him that he would consider his case personally but before he could do so he was transferred. His successor could not be contacted by the petitioner in spite of his best efforts. By a letter dated 18th August, 1971 he requested the new Chairman to consider the representation and ultimately an interview took place sometime in January 1972 wherein the Chairman assured him to reconsider the case but no decision was communicated to the petitioner. The petitioner made further representations on 21st May, 1973 and 7th August, 1974 and persude the said indus trial dispute already raised in the letter of 14th September, 1970. With effect from 1st February, 1975 the Major Port Trust Act, 1963 came into effect with certain exception of municipal assessment and the Calcutta Port Act, 1890 was repealed. The management, administration and control of the Port of Calcutta was transferred to and vested with the Board of Trustees constituted under the Major Port Trust Act, 1963 and the respondent No. 1 is the successor-in-interest of the Commissioners for the Port of Calcutta. The petitioner on 15th September, 1976 wrote to the Chairman of the Board of Trustees to reconsider his illegal order of termination of service and it was followed by a number of further representations on various dates but no one was considered until 17th October, 1984 when the Secretary of the respondent No. 1 informed the petitioner that the Chairman expressed his inability to reopen the case “at this distant date”. The petitioner then by his letter dated 8th June, 1985 requested the Assistant Labour Commissioner (Central), Calcutta, to interfere in the dispute raised by the petitioner on or about 14th September, 1970. The said Assistant Labour Commissioner duly intervened and directed the respondent No. 1 to submit their comments. Before the said Assistant Labour Commissioner, the respondent No. 1, for the first time disclosed that the termination was made for alleged activities of the petitioner which were derogatory to good order of duty and discipline. From this comment of the respondent No. 1 it was crystal clear that the petitioner’s service was terminated as a disciplinary measure which requires observance of the principles of natural justice and which were denied to the petitioner. The said Assistant Labour Commissioner duly held the conciliation proceedings and the last one was held on 9th January, 1986. The respondent No. 1 raised the question of alleged cause of action in the domain of industrial adjudication. Ultimately the conciliation proceedings ended in failure. On 10th November, 1986 the petitioner received a letter dated 4th November, 1986 whereby the respondent No. 2 informed the petitioner that there was no prima facie ground for reference of the dispute for adjudication by a Tribunal and no reasons for raising the dispute after a lapse of 15 years have been given by the Workman. The petitioner has challenged the order of termination of service dated 8th August, 1970 and the order of respondent No. 2 dated 4th November, 1986 refusing to make reference of the dispute for adjudication.
2. The Affidavit-in-Opposition was filed on behalf of the respondent No. 1, the Board of Trustees of the Port of Calcutta, affirmed by the Head Clerk who stated that he was well acquainted with the facts and circumstances of the case and competent to affirm this Affidavit. It is stated that the petitioner was proceeded against departmentally on different charges by the charge-sheet dated 12th December, 1967 and having been found guilty he was removed from service with effect from 11th February, 1969 but on appeal he was taken back in service as a fresher and resumed his duty with effect from 29th April, 1969. In spite of giving written declaration of good conduct in future, his performance had been extremely unsatisfactory. He was staging demonstration, spreading indiscipline and creating trouble in running the Watch and Ward section and as such his service was terminated with effect from 10th August, 1970 by the Chairman’s order dated 29th July, 1970 under Clause 1 of Further Conditions of Service and the same was communicated to him by letter dated 8th August, 1970. As the petitioner in the name of the Trade Union was acting illegally and with gross misconduct, his termination of service would not be termed as bad for non-compliance of Section 25F of the Industrial Disputes Act. It is also denied that Clause 1 of the Further Conditions of Service is opposed to public policy or contradictory to Section 23 of the Contract Act. It is further stated that representation dated 12th August, 1970 was considered by the Chairman but he did not find any reason to recall the order of termination and the Chairman’s order was communicated by letter dated 29th August, 1970. The granting of interview by the Chairman to the petitioner is denied. It is admitted that some representations as stated in paragraph 11 of the Affidavit were received by the Chairman who expressed his inability to reopen the case and the Chairman’s order to this effect was communicated to the petitioner by letter dated 17th October, 1984. It is admitted that the petitioner raised an industrial dispute before the Assistant Labour Commissioner (Central), Calcutta-II, by his letter dated 8th June, 1985 but at the same time it is stated that this respondent did not violate any assurance of reinstatement as alleged. It is stated with emphasis that the principle of natural justice was fully complied with while passing the order of termination of service. The respondent No. 1 supported the decision of the Ministry of Labour that the Central Government was of opinion that there was no prima facie ground for reference of the dispute for adjudication by a Tribunal. It is stated that Clause 1 of Further Conditions of Service was sanctioned by the former Trustees under Resolution No. 709 and the same was approved by the Government of India, Ministry of Shipping and Transport, by letter dated 14th July, 1959. The respondent No. 1 accordingly states that the writ petition be dismissed.
3. The Affidavit-in-Reply filed by the petitioner reiterates what are stated in the writ application and is denial of the statements made by the respondent No. 1 in the Affidavit-in-Opposition. It is most strongly stated in the Reply that Clause 1 of Further Conditions of Service is illegal, wrongful and contrary to laws of the land and as such the same is liable to be struck down and anything done in terms of the said clause is null and void and nonest. It is also stated to be ultra vires the Constitution.
4. Dr. Banerjee, the learned Counsel appearing for the petitioner, made a forceful attack on the Memo dated 4th November, 1986 issued by the Desk Officer of the Government of India, Ministry of Labour, informing the Chairman, Calcutta Port Trust, and the petitioner that termination of service was effective from 10th August, 1970 and the workman raised the dispute on 8th June, 1985. No reason for raising the dispute after a lapse of 15 years have been given by the workman and as such the Central Government was of the opinion that no prima facie ground existed for referring the dispute for adjudication by a Tribunal. In this connection he pointed out that the Memo dated 22nd January, 1986 addressed to the Secretary, Government of India, Ministry of Labour, by the Assistant Labour Commissioner (Central), Calcutta-I, wherein the said Assistant Labour Commissioner pointed out that the petitioner had been representing his case since 1970 and the copies of such representations had already been annexed with his representation dated 8th June, 1985 by which the workman raised the dispute. The petitioner also represented his case personally to the highest authority of the Calcutta Port Trust but he received a letter on 17th October, 1984 from the Secretary of the Trust expressing inability to reopen the petitioner’s case and this caused the delay in approaching the Assistant Labour Commissioner (Central) in the matter. He further argued that the contents of Clause 1 of the Further Conditions of Service is contrary to public policy Under Section 23 of the Contract Act. In this connection he cited a decision of this Court reported in CAL. LT. 1989(2) HC 272 = 1989(2) CHN 35 (Ranjit Chandra v. Union of India and Ors.). The learned Counsel submitted that the Court has ample power to direct and refer the dispute to a Tribunal for adjudication. It is further contended that the Desk Officer has no power to take a decision and also at the same time it appears that the authority did not apply his mind. He laid emphasis on the fact that the question of delay did not arise in this matter because the petitioner was constantly in touch with the Management for the redress of his grievances and he received assurances from the Chairman more than once though the same is now being denied by the respondent No. 1 to avoid the consequences that such an adjudication would yield. He also cited a few decisions including : (i) State of Gujarat v. Mohanlal Jitamalji Porwal and Anr. ; (ii) The M.P. Irrigation Karamhkari Sangha v. State of M.P. and Anr. ; (iii) Ram Avtar Sharma and Ors. v. State of Haryana and Anr. ; (iv) V. Veeraranjan and Ors. v. Government of Tamil Nadu and Ors. ; and (v) Arun Kumar Chatterjee v. South-Eastern Railway and Ors. reported in (1985) 2 SCC 351.
5. Mr. Basu, the learned Counsel appearing for the respondent No. 1, made much emphasis on the delay of about 15 years in moving the writ petition and he submitted that this undue delay is fatal and the writ petition must be rejected on this preliminary issue. He submitted that the termination of the service of the petitioner took place sometime in 1970 and he raised the dispute in 1985 and no effective reason has been given for the cause of the delay of fifteen years and as such the Central Government was within its rights to say that there was no prma facie ground to refer this matter for adjudication by a Tribunal. He further submitted that representations are not enough unless recourse to law is taken. In this connection he referred to the decision in the case of Gian Singh Mann v. The High Court of Punjab and Haryana and Anr. . He also cited a decision reported in FLR 1974 Vol. 28 page 124. Mr. Basu was confined in his defence argument very seriously on the inordinate delay caused in moving the writ petition and he submitted that the writ petition should be dismissed only on this point and the Court must not go into the merits of the case. Mrs. Bhattacharya, the learned Counsel appearing for the Union of India, adopted the argument of Mr. Basu.
6. I have considered the facts of the case and the submissions made on behalf of the parties. The petitioner’s prayer is to quash the order of respondent No. 2 dated 4th November, 1986 and to make reference of the dispute for adjudication to an Industrial Tribunal. Alternatively, the petitioner prayed to quash the order of termination of service dated 8th August, 1970 by declaring Clause 1 of the Further Conditions of Service as null and void and ultra vires Article 14 of the Constitution. It is better first to take up the point of delay in moving the writ application raised by the Respondents. From the facts stated hereinbefore it will appear that the petitioner’s services were terminated with effect from 10th August, 1970 and since then he was making representations one after another to the authorities concerned which are on records and was getting assurances from the highest authorities as stated hereinbefore and this was the real cause of delay in approaching the Assistant Labour Commissioner (Central), Calcutta, in the matter. The delay in moving the writ petition was not wilful or deliberate but by circumstances the delay took place and the respondent No. 1 was, no doubt, a party to it. The petitioner made representations on 15th September, 1976, 4th June, 1977, 25th April, 1978, 9th March, 1979, 21st July, 1980, 14th August, 1981, 22nd April, 1982, 9th November, 1983 and 10th August, 1984. It is on record that he was given interview by the Chairman more than once. But ultimately by letter dated 17th October, 1984 the petitioner was informed by the Secretary of the respondent No. 1 that the Chairman has expressed his inability to reopen the case “at this distant date”. In fact there was no “distant date” but a process of representations and/or appeals was in progress with the Chairman of the respondent No. 1 and, in fact, it was kicked out by the Chairman on 17th October, 1984 and then only the petitioner requested the Assistant Labour Commissioner (Central), Calcutta, to interfere in the dispute by his letter dated 8th June, 1985 due to the non-co-operation and arrogant attitude of the respondent No. 1 but the conciliation proceedings failed which was last held on 9th January, 1986 and there after the petitioner knocked the door of the Hon’ble High Court in 1986. Mr. Basu, the learned Counsel for the respondent No. 1, has cited the decision in the case of Gian Singh Mann v. The High Court of Punjab and Haryana and Anr. (supra) where the Supreme Court held that inordinate delay could not be over-looked on ground that petitioner was making successive representations to the department and there was no valid explanation for the delay and the successive representations during this period could hardly justify over-looking the inordinate delay. The delay in this case was of about 11 years but this was the view of the Supreme Court in 1980 whereas in the case of Arun Kumar Ckatterjee v. South-Eastern Railway and Ors. (supra) which is the decision of 1985 the Supreme Court on the point of delay wherein the Seniority List prepared in 1967 was challenged in a writ petition in 1975, almost after 8 years changed its view on the point. The petitioner during these 8 years filed three departmental representations but without success. It was held by the Supreme Court that on facts there was no delay in filing the writ petition. The latter decision of the Supreme Court can very well be followed in the instant writ application because the facts and circumstances of the case convincingly establish that the petitioner was constantly trying for his reinstatement and the respondent No. 1 did delay very much in giving reply to the petitioner and as such he had to refer the matter to the Assistant Labour Commissioner (Central), Calcutta, for reconciliation after a long gap of several years and on facts there was no delay in filing the writ petition. The entire responsibility of this long gap or delay rests with respondent No. 1 and not the petitioner and the petitioner must not suffer for the act of the respondent No. 1. Also in the State of Gujarat v. Mohanld Jitamalji Porwal and Anr. (supra) the Supreme Court deprecated the rejection of writ petition on the ground of delay. Relying on and (supra) and also on the discussion made hereinbefore I decide the issue in favour of the petitioner and hold that the delay is not fatal in the facts and circumstances of the case.
7. Now I take up Clause 1 of the Further Conditions of Service of respondent No. 1 which runs as follows :-
“The services of any officer or servant may be terminated with a month’s notice or a month’s pay in lieu of notice in any case. For the purpose of this and the following conditions a “month” shall mean the period which runs from any date in any month of the English Calendar to the afternoon of the day preceding the same date of the following month of the Calendar. Provided that the period from the 30th or 31st January to the afternoon of the 28th February or in a leap year the 29th February shall each be taken as a “month”.’
This point has been dealt with by me at length in the case of Ranjit Chandra v. Union of India and Ors. (supra) very clearly wherein I held that such, a term and condition is apparently void Under Section 23 of the Contract Act being opposed to public policy and also ultra vires Article 14 of the Constitution to the extent that it confers upon the employer the right to terminate the employment of a permanent employee after his long service by giving him one month’s salary in lieu of such notice. It was further held by me that such an act is altogether arbitrary and unreasonable and wholly ignores audi alterant partem rule and is also violative of the Directive Principles contained in Articles 39(a) and 41 of the Constitution. It was further held in this case that any misconduct or misbehaviour of an employee ought to have been proceeded with departmentally in accordance with law and the delinquent must have been given a reasonable opportunity to defend himself. The principles of natural justice must not be deliberately violated on the plea of a particular Clause of service which has been condemned by the Hon’ble High Court in unequivocal terms. In this connection reference may also be made to a decision of a Division Bench of our High Court consisting of Mr. Justice G. N. Ray (as His Lordship then was) and myself in the case of Steel Authority of India Ltd. and Anr. v. Dilip Kumar Debnath reported in FLR 1988 (57) page 898 wherein we held on the basis of a Supreme Court decision (Workman of Hindustan. Steel Ltd. and Anr. v. Hindustan Steel Ltd. and Anr.) that dismissing an employee without holding any enquiry whatsoever and without affording a reasonable opportunity of being given to the delinquent employee is reminiscent of the days of hire and fire. I cannot deviate from my own judgment. In the light of this discussion I hold that the termination of the petitioner’s service under Clause 1 of the Further Conditions of Service by respondent No. 1 is void ab initio and opposed to public policy Under Section 23 of the Contract Act and violative Article 14 of the Constitution of India.
8. The Memo of 4th November, 1986 issued by the Desk Officer of the Ministry of Labour, Government of India, refusing to refer the dispute for adjudication by a Tribunal on the plea that there was no prima faice ground could not stand the test of dissection. It has been rightly contended by Pr. Banerjee that there was no application of mind in coming to this decision by the authorities concerned and at the same time the contention of the learned Counsel is correct when he submitted that the Desk Officer is not the competent authority to decide this matter and a communication by him is of no legal value. It has been held in (supra) that the High Court can after examining the reasons given by the proper Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. Here apparently the Memo indicates that the relevant facts leading to the inordinate delay was not considered at all as discussed hereinbefore and there was no application of mind otherwise the decision would have been somewhat different. In the case of V. Veeraranjan and Ors. v. Government of Tamil Nadu (supra) the Supreme Court held that the court could direct the State Government to refer the dispute for adjudication by the Labour Court.
9. Before closing the judgment, I simply want to pin-point the way the respondent No. 1 handled this case. The Affidavit-in-Opposition is affirmed by one Manick Lal Banerjee who is a Head Clerk and claims to be “well acquainted with the facts and circumstances of the case” and further that “he understood the meaning and purport thereof i.e. the writ petition. I wonder how a Head Clerk can open his mouth so wide, and who made him “competent to affirm this affidavit” knowing full well the points raised therein. It is a pity that the Board of Trustees of the Port of Calcutta did not give any importance to this case and a Head Clerk was authorised to do the needful instead of a competent officer of rank. Such indifferent attitude of the Board of Trustees of the Port of Calcutta requires a probe by the Union Ministry concerned.
10. As I have stated in clear terms my view on the legality of Clause 1 of the Further Conditions of Service, accordingly, I hold that the said Clause 1 is null and void and violative Article 14 of the Constitution. Further the termination of service of the petitioner by Memo dated 8th August, 1970 is also illegal and void ab initio. In the circumstances there is no need to direct the Labour Department, Government of India, to refer the dispute for adjudication by a Tribunal but in spite the relevant Memo dated 4th November, 1986 issued by the Desk Officer is quashed.
11. In that view of the matter I quash the order of termination of service dated 8th August, 1970 and declare Clause 1 of the Further Conditions of Service as null and void Under Section 23 of Contract Act as opposed to public policy and violative Article 14 of the Constitution. The respondents are directed to forthwith reinstate the petitioner, Sudhir Barua, and allow him to join his duties to the post he occupied on 8th August, 1970 and pay all arrears of salaries and other benefits to him in accordance with law within-31st July, 1991.
12. The Rule is made absolute. As the petitioner has suffered a lot due to the most callous behaviour of the respondent No. 1, he must be paid costs by the Respondent No, 1 assessed at 200 (two hundred) G.Ms.
13. The Registrar, Appellate Side, High Court, Calcutta, is directed to forward a xerox copy of this judgment by registered post to the Secretary, Ministry of Labour, Government of India, Shram Shakti Bhawan, New Delhi, within 30th April, 1991 drawing the Secretary’s attention to paragraph 9 in particular.
14. Let xerox copy of the judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities.