JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition the petitioner has challenged the award dated 12.2.1996 whereby the Industrial Tribunal directed the petitioner to give benefits of promotion from cadre to cadre and other consequential benefits to respondents S/Shri R.S. Gupta, S.S. Upadhyay, Subhash Chander and M.P. Gupta as given to Mr. O.P. Mathur.
2. Briefly, facts are that Mr. O.P. Mathur, Mr. C.M. Dilwaria and respondents were working in petitioner’s hotel. Mr. C.M. Dilwaria was promoted to the post of clerk grade II w.e.f. 1.9.1964 and clerk grade I on 1.6.1966. Mr. O.P. Mathur, who was senior to Mr. C.M. Dilwaria raised an industrial dispute in year 1983 i.e. after 18 years that he was entitled to promotion to the post of clerk grade II from the date Mr. C.M. Dilwaira was promoted since he was senior to Mr. C.M. Dilwaria. The dispute was referred to Industrial Tribunal and Industrial Tribunal vide an award dated 15.12.1987 directed that since Mr. O.P. Mathur was senior to Mr. C.M. Dilwaria, he should also be promoted to clerk grade II on the same date on which Mr. C.M. Dilwaria was promoted. Although all the four aforesaid respondents were senior to Mr. O.P. Mathur and Mr. C.M. Dilwaria, none of them raised dispute along with Mr. O.P. Mathur that they should also be promoted to the post of clerk grade II on the same date on which Mr. C.M. Dilwaria was promoted. After the award in favor of Mr. O.P. Mathur was passed, petitioner implemented the award and Mr. O.P. Mathur was given promotion as directed. It is a fact that the tribunal did not make the respondents as party to the dispute though the seniority and promotion of the respondents was going to be affected by the order of Tribunal. Neither the respondents themselves made application to be included as a party. After the award in favor of Mr. O.P. Mathur was implemented above four respondents raised an industrial dispute about their non-promotion along with Mr. O.P. Mathur and a reference was made by the government to the following effect:
Whether the non-promotion of S/Shri R.S. Gupta, S.S. Upadhyaya, Subhash Chander, M.P. Gupta and S.M. Jamaluddin from the dates Shri. O.P. Mathur was promoted is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect?
3. Even in this reference the other persons, who were senior to these four respondents were not made as a party neither they were heard. The Industrial Tribunal considering the fact that the four respondents were senior to Mr. O.P. Mathur, gave direction that all the four respondents be promoted on the same date when Mr. O.P. Mathur was promoted from cadre to cadre.
4. The award is challenged by the petitioner on the grounds:
(i) that the award was made on a patently frivolous and incompetent, belated reference.
(ii) Secretary (Labour), Delhi Administration had no power to make the reference since the appropriate Government in case of the petitioner was Central Government and not the State Government.
5. On facts, it is stated by petitioner that Mr. O.P. Mathur, who was in the employment of the petitioner hotel as clerk grade III since 6.1.1961 expressed his grievance in the year 1983 on the promotion given to Shri C.M. Dilwaria in the year 1964. The present respondents were senior to Shri O.P. Mathur in 1961 and they continued to be senior thereafter. When Mr. Dilwaria was promoted, the respondents were senior to Mr. Dilwaria like Mr. O.P. Mathur. When Mr. O.P. Mathur raised dispute, respondents did not raise any dispute about promotion of Mr. Dilwaria although they could have raised such a dispute. Therefore, when award in respect of Mr. O.P. Mathur was implemented, the respondents could not have raised an industrial dispute. It is not the case of respondents that respondents were not aware of the dispute raised by Mr. O.P. Mathur. One of the respondents i.e. Mr. Upadhyaya was an office bearer of union of the employees i.e. Ashok Hotel Karamchari Sangh. Other three respondents were also active members of employees union so, it cannot be presumed that they were not aware of the dispute raised by Mr. O.P. Mathur or the issue be pending before the Tribunal. Their not raising issue from 1964 when Mr. C.M. Dilwaria was promoted, for 25 years i.e. till 1989, showed that promotion of Mr. C.M. Dilwaria was a regular promotion. The promotion of Mr. O.P. Mathur was not made by the petitioner under any rule and regulation but promotion of Mr. O.P. Mathur was made as a result of order of the Tribunal, therefore this could not have given any right to respondents.
6. It is submitted that the respondents / workmen do not have a statutory or legal right to claim promotion, the respondents had legal right only be considered for promotion along with other employees at the time when promotion was made. Promotion of Mr. C.M. Dilwaria was made in 1964 due to his efficiency and work. Respondents were later on promoted when they were found fit for promotion. Even before Industrial Tribunal, dealing with the reference in respect of Mr. O.P. Mathur, petitioner had raised the dispute that the reference was highly belated and Mr. O.P. Mathur despite having knowledge of promotion of Mr. Dilwaria did not challenge the promotion for a period of 18 years. The respondents herein had raised dispute about promotion after 25 years of the date of promotion, which was highly belated and the reference made in respect of respondent should have been rejected merely on this ground.
7. The respondents in their counter affidavit replied that there was no illegality in the award passed by the Tribunal. If junior persons were given benefits of promotion, seniority etc. then senior persons to him were also entitled to the same benefits. The award passed in favor of Mr. O.P. Mathur on the basis of promotion of Mr. Dilwaria was never challenged and was binding on the petitioner. Since Mr. O.P. Mathur was given promotion by the Tribunal only because he was senior to Mr. Dilwaria. The respondents being senior to Mr. O.P. Mathur, were entitled to same benefits and same relief as given to Mr. O.P. Mathur. The Tribunal has merely done that, there was no illegality.
8. No reason has been given why respondents did not prefer any dispute after promotion of Mr. C.M. Dilwaria in 1964. No reason is stated as to why the respondents had not raised the issue when Mr. O.P. Mathur had raised an industrial dispute. The respondents kept silent for 25 years after promotion of Mr. C.M. Dilwaria and did not challenge his out of turn promotion. Only Mr. O.P. Mathur challenged this promotion that also after 18 years. The Tribunal should have disallowed the challenge on the ground of delay and latches. In Yashbir Singh and Ors. v. Union of India and Ors. AIR 1988 SC 662 Supreme Court has observed:
It is well settled that any one who may feel aggrieved with an administrative order of decision affecting his right should act with due diligence and promptitude and not sleep over the matter. Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create insecurity and instability in the service which would affect its efficiency. The petitioners are therefore not entitled to challenge the validity of the Railway Board’s Circular dated July 2, 1970 after 11 years and their challenge is bound to fail on this ground alone.
9. The petitioner in this case made the promotion of Mr. O.P. Mathur as basis of claiming promotion. However, Tribunal ignored the fact that Mr. O.P. Mathur was not given promotion on merits or as per rules and regulations of the Petitioner Corporation. Mr. O.P. Mathur’s claim was based on promotion given to Mr. C.M. Dilwaria in 1964. The respondents were senior to Mr. C.M. Dilwaria in 1964. The cause of action arose in 1964 and they raised dispute in 1989. Implementation of judgment of Court/Tribunal could not have given cause of action to respondents. In P.S. Sadsivaswamy v. State of Tamil Nadu , Supreme Court observed as under:
A person aggrieved by an order promoting a junior over his head should approach the Court at least within six months or at the most at a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is that there can never be a case where the Court cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, have been dismissed in liming. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellants petition as well as the appeal.
10. In view of the law laid down by Supreme Court, I consider that delay of 25 years made by the respondents in raising the dispute was fatal to their case. The promotion of Mr. C.M. Dilwaria had taken place in 1964 and the respondents had raised the dispute in 1989 i.e. after 25 years. The award is liable to be set aside on this ground alone.
11. The respondents had also not made others, who were affected by the order of the Tribunal, as party to dispute. Whenever a Tribunal considers the case of promotion of a person on the ground that his junior has been promoted of other, all affected persons should be given notice and should be heard, so that, they are not condemned unheard. Since the decision of the Tribunal in respect of promotion and seniority affects other employees of the organisation, it is necessary that the Tribunal should make them necessary parties in the dispute. Although, this was not done and the award of Tribunal was implemented that cannot be a ground to give same relief to others. Committing another mistake does not rectify the earlier mistake, ‘ two wrongs do not make one right’. I consider that Tribunal could not have decided the reference without giving notice to the other affected employees. In Rajbir Singh HFS II v. State of Haryana and Anr. 1996, 2 SSC 19, Supreme Court declined to express any opinion on merits and dismiss the petition on the ground that one of the employees, Mr. M.P. Sharma, who was going to be affected was not made party to the petition; order of Supreme Court reads as under:
We decline to express any opinion on merits since M.P. Sharma, who was appointed to an additional post as a general candidate pursuant to the direction issued by the High Court in Writ Petition No. 13700 of 1990, on 8.7.1990 while the appellant was regularly selected by the Public Service Commission and appointed earlier to him, is not made a party to these proceedings. The main thrust of the agreement is on inter se seniority between the appellant and M.P. Sharma. But in the absence of M.P. Sharma being imp leaded as a party respondent to these proceedings, we cannot go into the question. Under these circumstances, we do not find that though the High Court dismissed the writ petition in liming, it would be open to the appellant to approach the High Court, if so advised, to file a fresh writ petition impleading the affected parties and seek his remedy according to law.
12. In Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. 2004 2 SSC (76), Supreme Court observed as under:
It is true that the order of promotion was in question in Writ Petition No. 1551 of 1990 at the instance of one Ashok but even in the said writ petition the promotees were not imp leaded as parties. As in the case of the Association, even in the writ petition filed by Ashok, the order of de-reservation passed by the Union of India or NABARD or the sponsor Bank had not been questioned. Admittedly, the Union of India or NABARD were not parties in the said writ petitions. An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favor had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In absence of the “promotees” as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment.
13. The award was passed by the Tribunal without giving an opportunity to the other persons affected, who have not been even made party in the writ petition. Similarly, the earlier award was passed by the Tribunal without giving hearing to the present respondents, who were affected. The earlier award was bad in law but since that award has already been implemented and the petitioner did not challenge that award that award has attained finality but the present award which has been passed on the basis of earlier award cannot stand the test of reason and therefore is liable to be set aside.
14. In view of the above discussion, the writ petition is allowed, the impugned award is set aside, the amount already deposited by the petitioner in the this Court be withdrawn by the petitioner.