ORDER
P.S. Mishra, J.
1. Petitioner has moved this Court by the two writ petitions, in one (W.P. 9906/84) for quashing of the proceedings in CP.No.966 of 1980 and the impugned order of the Principal Labour Court, Madras and in the other (W.P.No. 9907 of 1984) for quashing the order under which the Principal Labour Court, Madras, has dismissed his petition under Section 33C(2) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’) and the order of the Chairman- cum-Man-aging Director of the Neyveli Lignite Corporation Ltd. (for short, ‘the Corporation’) under which he has been removed from service. Both these petitions have arisen because the respondent-Chairman-cum-Managing Director of the Corporation has, in a proceeding, dispensed with the services of the petitioner. The petitioner has contended that the order of the Chairman-cum- Managing Director in proceedings No. 17349/RI/3/75-16 and dated November 7, 1975 is ultra vires, incompetent, void and without jurisdiction.
2. Petitioner has been in the services of the Corporation as a Junior Engineer (Civil) and in due course promoted as Asst.Engineer (Civil) with effect from November 1, 1971. After sixteen years of continuous service only, however, he was suddenly subjected to the impugned order of the Chairman-cum-Managing Director of the Corporation and informed that his services were terminated with effect from the afternoon of November 10, 1975 and an amount equivalent to three months’ pay in lieu of three months’ notice was delivered to him. The removal from service, according to the Chairman of the Corporation and the Hon’ble Minister, Energy and Power Ministry, Government of India, only to get a reply from the Director (Personnel) of the Corporation stating that his services were terminated in terms of the service conditions governing the Higher Grade Employees under the contractual obligation fulfilling and discharging on payments due and that there was no case for reconsideration. Petitioner moved the Central Government by filing C.P.No. 82/78 claiming relief under Section 33C(2) of the Act. The Management of the Corporation objected to the said petition and opposed the grant of relief for retrenchment compensation. The Central Government dismissed the application on September 11, 1980. The petitioner then moved the Principal Labour Court, Madras, in Claim Petition (C.P.No. 966/80), which was dismissed on April 23, 1984. The petitioner has, in the proceedings in C.P.82/78 and in C.P.966/80 however, claimed that he was a workman and was accordingly entitled to retrenchment compensation under Section 25FF of the Industrial Disputes Act. The Labour Court has recorded that at the time of the termination of the petitioner’s services by the respondent-Corporation, he was not a workman as defined under the Workmen’s Compensation Act. While moving this Court against the said proceedings and against the order of the Labour Court, the petitioner has chosen to move the other writ petition for quashing the order of the Corporation under which his services have been terminated.
3. The respondent-Corporation, although registered as a Government company under the Companies Act, is an instrumentality of the Government of India and is accordingly a ‘State’ under Article 12 of the Constitution of India. The petitioner thus is an employee of an instrumentality of the Government of India and accordingly, an employee of a State for the purposes of Part III of the Constitution of India.
4. The above, however has been contested by learned counsel for the respondent-Corporation on the ground(1) that in the year 1975 when petitioner served under the Corporation, the Corporation for all purposes was treated as a company and thus, a separate legal entity and the realisation of knowledge that it is an instrumentality of the Government of India, according to the respondent-Corporation, also dawned only after the Supreme Court in the year 1979 extended the concept of agencies or instrumentalities of the State being authorities satisfying the definition of a State under Article 12 of the Constitution of India, and (2) that, as under any private employment, petitioner herein has entered into a contract of service with the respondent-Corporation and respondent Corporation had such authority under the contract to terminate the appointment, which the respondent then exercised to terminate the petitioner’s services.
5. There is no serious argument, however, before me on the merits that in case it is found that the petitioner is protected under Articles 14, 16, 21 of the Constitution of India in the matter of his status as an employee of the respondent-Corporation, the respondent’s act in terminating his services may not be found justified. It is stated however on behalf of the respondent that it was during the period of Emergency that was declared on account of the threat to the internal security that the Government of India has taken a policy decision to weed put the dead-woods in the services under it and it had asked accordingly such establishments, which were controlled by it, to follow the policy of chop-ping-off the dead-woods exercising such option as desired by the Government of India, and accordingly the respondent-Corporation reviewed the cases of its employees and although the petitioner had put in only 16 years of service, he was noticed as one of the dead-woods, which were no longer required by the Corporation.
6. There are two serious questions thus before me; (1) whether, in the year 1975, when the Corporation terminated the petitioner’s services it was an instrumentality of the Government of India and it was thus a ‘State’ within the meaning of Article 12 of the Constitution of India, and (2) whether the petitioner is entitled to the protection in Articles 14, 16(1) and 21 of the Constitution of India. The answer to the second question depends on the answer to the first. In case the answer to the first question is in the affirmative, the answer to second question must go in favour of the petitioner. It is difficult to countenance a contention that until the Supreme Court emphasized the law that instrumentalities and agencies of the Government of a State, whether constituted by or under a statue or otherwise, under Government instructions, incorporated as companies or as societies, were not ‘State’ for the purposes of Article 12 of the Constitution of India. If they are hands or wings of the body known as the State, they were a part of it as they are a part of it and there is no change in their character when the Supreme Court has recognised their true identity and called them ‘State’ for the purposes of Article 12 of the Constitution of India. It is not in dispute that the petitioner herein has been employed under the respondent-Corporation as an Assistant Engineer when the respondent issued the notice of termination of his services. The petitioner, for the said reason, was an employee of a State under Article 12 of the Constitution of India. He is entitled to the protection under Articles 14, 16(1) and 21 of the Constitution of India.
7. In the course of the hearing of these petitions, the Court enquired from the learned counsel for the respondent-Corporation whether there was any written contract of service of the petitioner and when the answer was given in the affirmative, wanted the respondent to bring on the record of the case, the contract, if any in this, behalf. The respondent-Corporation has brought on the record of the proceeding, two circulars, of which one is dated February 3, 1975 with which a copy of a Circular from the Office of the Deputy General Manager addressed to all the Chief Engineers is appended. This reads as follows:
“With reference to the condition in the appointment orders that the appointee to posts in the Corporation will be subject to such other terms and conditions of service as may be prescribed by the Corporation from time to time, all the employees of the Corporation in the regular establishment other than those on foreign service terms and retired reemployed personnel and those governed by the terms of contracts binding themselves to serve the Corporation for a fixed number of years are informed that they shall have to give notice as follows if they desire to resign from the service of the Corporation:
1. Non-technical personnel – one month’s notice or forfeit one months’ pay in lieu of notice.
2. Technical Personnel – Three month’s notice or forfeit three month’s pay in lieu of notice.
This condition will apply irrespective of whether such a condition had been incorporated or not in the orders appointing the employee concerned to the post now being held by him in the Corporation”.
Nothing has been brought from which it can be found that the Corporation can terminate the contract of service by giving a three-month’s notice or one month’s notice, as the case may be, and it seems except the rules which were made applicable to the employees under the services of the Union of India, there were no such regulations and rules or any term or condition in the contract of service, which empowered the Corporation as the employer to terminate the services of any of its employees midway before the conclusion of the contract period. Such termination as has been brought to my notice is possible only by way of a penalty as a result of a disciplinary proceeding or compulsory retirement under the Fundamental Rule after a period of qualifying service or after attaining certain age of superannuation/compulsory retirement. It is conceded by the respondent Corporation that the petitioner’s services have not been terminated as a result of any disciplinary proceedings and the termination is not the result of any punishment. It is also conceded on behalf of the respondent-Corporation that they have not taken recourse to such fundamental rules which prescribe period of qualifying service and/or attainment of certain age of superannuation/compulsory retirement of the employees. According to learned counsel for the respondent- Corporation, such a power was inherent in the employer- Corporation as a result of a contract which existed between the petitioner on the one hand and the Corporation on the other hand and under which, the petitioner could, at the best, complain of breach of contract but not of any violation of any of the constitutional or legal rights. It is indeed an argument of desperation, desperation which has been created on account of subjugation of the administration of the Corporation to the commands of the principal, i.e. Government of India, which were issued for general application during the period of Emergency. It is not shown to me, however, in spite of repeated and lengthy arguments on behalf of the respondent-Corporation, that the policy that the Government of India had adopted then, to compulsorily retire its employees or its instrumentalities and agencies, enabled them to pick up any employee from anywhere and hold that it has found him no longer suitable for the services of the Corporation. All acts, which are arbitrary, which is now the common knowledge, are discriminatory and/or accordingly are in the teeth of Article 14 of the Constitution of India, and when they affect the conditions of service of any employee, they attract Article 16(1) thereof. Right to life as envisaged under Article 21 of the Constitution is one which also applies to the right of a person as an employee under one, which is obliged to respect the conditions of service. The respondent’s (Corporation’s) act of termination of the petitioner’s services in the course of implementation of the policy decision of the Government of India is so arbitrary that it has gone against the very fundamentals of the fundamental rights under the Constitution, i.e. rights under Articles 14, 16(1) and 21
8. Learned counsel for the respondent-Corporation has, however, urged that the instant writ petition (W.P.9907/94) has been filed after almost a decade of the respondent’s action and therefore, is one which should be rejected on the ground of inordinate delay and laches on the part of the petitioner. We have seen from the facts aforementioned that when the petitioner received a reply from the Director (Personnel) to the effect that there was no possibility of review of the order of termination of his services by the Corporation, he moved the Labour Court taking the plea that he is a workman and that he is entitled to retrenchment compensation and the Labour Court has found that he was/is not a workman. Learned counsel for the petitioner has not been able to show either from the provisions of the Act or otherwise that with the position of the Assistant Engineer under the respondent-Corporation, the petitioner was a workman and that he thus was/is protected under the provisions of the Act including Section 25FF thereof. Soon after the order passed by the Labour Court, the petitioner has come to this Court. He has, under one writ petition, impugned the proceedings of the Labour Court.
9. T had occasion to deal with a similar contention in a Full Bench of the Patna High Court in the case, of Jagannath Mishra v. State AIR 1990 Patna II FB). Relying upon the judgments of the Supreme Court in the case of State of M.P. v. Nandlal Jaiswal , in the case of Narayan Devi Khailan v. State of Bihar AIR 1964 SC Notes 259 and in the case of P.B. Roy v. Union of India , Binod Kumar Roy, J., speaking on my behalf, as well as on behalf of U.P. Singh, J. has said as follows.
“Coming to the next point argued by the learned Addl. Advocate General that the writ petition should be thrown out on account of laches, this too has to be rejected as the Supreme Court in State of M.P. v. Nandlal Jaiswal,(supra) has laid down as follows:
this rule of laches or delay is not a rigid rule which can be cast in a straight jacket formula, for, there may be cases where despite delay and creation of their party rights the High Court may still in the exercise of its discretion interference (sic) and grant relief to the petitioner”.
“In Narayan Devi Khaitan v. State of Bihar C.A.No. 140 of 1964 decided by the Supreme Court on September 22, 1964: ( supra) it was laid down that no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches”.
“In P.B. Roy v. Union of India (supra), the Supreme Court itself had laid down that the delay in filing the petition under Article 226 may be overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of party is relaxed and need not be applied if his case is ‘positively good’.
“In my view, the writ petition having been admitted, and the case of the petitioner being “positively good” as it is squarely covered by the decision of the Supreme Court itself (Annexure 3) and the respondents being bound by that judgment ought to have given a notice to the petitioner. I accordingly overrule the second contention of the learned Addl. Advocate General also.”
The rule of laches or delay, it is well settled is not a rigid rule which can be cast in straight jacket formula. Delay in filing the petition under Article 226 of the Constitution may be overlooked on the ground that after the admission of a writ petition and hearing the arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if the petitioner’s case is positively good. This, however, does not mean that the courts shall take no notice of the happenings and the consequences that may ensue in the case after a long inordinate delay, a certain employee is restored and put back in service with all consequential benefits. Law in this behalf has been stated by the Supreme Court in S.S. Moghe v. Union of India (1981-II-LLJ-198). The Supreme Court was dealing with a case of certain employees who challenged the promotions in government service on the ground of infringement of fundamental rights and gave no explanation for the delay of several years in filing the : writ petition. The Supreme Court has, in the said case, pointed out: pp. 211-212:
“….A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief”
and then proceeded to point out.
“In the case before us, many of the impugned promotions had been effected during the year 1968-69 onwards. Three of the present petitioners had challenged the validity of some of the promotions granted to various deputationists as well as the ranking given to them in a seniority list of ARC personnel published in 1971 by filing Civil Writ Petition No. 1020 of 1971 in the Delhi High Court. Though the High Court by its judgment dated April 7, 1972, dismissed that writ petition on the ground that it was premature inasmuch as it had been submitted before it by the counsel for the Union of India that all the existing arrangements in the ARC were purely ad hoc and that service rules would be framed shortly, the High Court has recorded clear findings in the judgment that the principle adopted for the preparation of the combined seniority list of 1971 could not be said to have violated Articles 14 and 16 of the Constitution and that it had not been shown by the writ petitioners in that case that the impugned promotions had been effected in violation of any ‘statutory rules’ constitutional or statutory limitations or even administrative instructions”.
“If the petitioners were dissatisfied with the aforementioned findings entered by the Delhi High Court, one should have expected them to approach this Court atleast soon after that decision was rendered by that High Court in April, 1972. We are not suggesting that the findings of the High Court operate as res judicata against the petitioners in these proceedings. There is no satisfactory explanation forthcoming from the petitioners as to why no action at all was taken by them to challenge the validity of the impugned promotions given to respondents Nos. 8 to 67 from 1968 onwards for a period of nearly seven years subsequent to the pronouncement by the Delhi High Court”.
The Supreme Court, however, in the said case, after taking notice of the laches, proceeded to determine the question on merits and found against the petitioners therein.
10. Learned counsel for the respondent Corporation has drawn my attention to some orders passed by this Court in the writ petitions filed by some other employees. He has pointed out that this Court has dismissed in limine writ petitions solely on the ground of delay. One is the order in the case of E.Muthiah v. The Neyveli Lignite Corporation Ltd. (W.P.No. 565 of 1982, Order dated January 22, 1982) of Nainar Sundaram, J., as he then was, who declined to admit a writ petition on the ground of delay. The order in M. Thiruneelakanta Pillai v. Neyveli Lignite Corporation Ltd. (W.P.No. 10631 of 1984. order dated March 13, 1985) also shows the same approach. These are cases where the Court declined to admit the writ petitions. Writ Petitions were not admitted to hearing. That is not the case here. Once the writ petition is admitted to hearing the ordinary rule is that the case is not thrown out on the ground of delay. Of course, the Court may still have a discretion to dismiss a writ petition on the ground of laches, but orders as in the case of E. Muthiah (W.P.No. 565/82) (supra) are not applicable to a case admitted to hearing.
11. Although Limitation Act has no application and the periods fixed for action in civil proceedings by the said Act are not applied in a Writ proceeding one can have some idea why even in cases of straight jacket rule of limitation, Courts exclude time taken in proceedings bona fide in Courts without jurisdiction. Section 14 of the Limitation Act says that in computing the period of limitation for any suit under Sub-section (1) and in computing the period of limitation for any application under Sub-section (2), the time during which the plaintiff or the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant/respondent shall be excluded where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
12. Petitioner herein moved under a mistaken impression that he was a workman and that the Government of India or the Labour Court were competent to protect his interests as in the case of a workman under the Industrial Disputes Act. He also had at the relevant time no idea or hope of a relief in a regular proceeding in a Court of law or in a writ petition as learned counsel for the respondent-Corporation has himself contended before me, it was not known to the employer that as an instrumentality of the State it was required to adhere to the constitutional guarantees for its employees, an employee like the petitioner was expected to be more unaware of such a right available to him.
13. On the facts of the instant case, I am inclined to hold that the petitioner is not a workman and thus, he is not entitled to the benefits which workmen are entitled to receive under the labour laws including the Industrial Disputes Act. He, however, is an employee under the State under Article 12 of the Constitution of India, known as Neyveli Lignite Corporation Ltd., and is accordingly entitled to the protection of provisions under Part- III of the Constitution, The respondent-Corporation has acted in complete disregard to the constitutional guarantees aforementioned and has, accordingly, infringed constitutional rights of the petitioner. The order in proceedings No. 17349/RI/3/75-16 dated November 7, 1975 of the Chairman-cum-Managing Director of the Respondent Corporation is wholly arbitrary and unconstitutional.
14. I am not inclined, in spite of the above, to grant to the petitioner any order of reinstatement or benefits, which shall not take into account his employment or non-employment after the termination of service by the respondent-Corporation. It is not stated anywhere in the petition whether the petitioner still has some years to go as an employee before he would attain the age of superannuation. On the facts of the instant case, I am of opinion that the proper course will be to compensate the petitioner by quantifying the amount of compensation for the lost years of service under the respondent-Corporation which will, on the one hand repair to some extent the injuries caused to the petitioner, and on the other hand, make the employer-Corporation aware of its duties towards its employees. Accordingly, I am inclined to order as follows.:
(1) The petitioner shall appear before the Chairman-cum-Managing Director of the respondent-Corporation within ten(10) days from to-day with an affidavit giving details of the period of employment and earnings by him otherwise after the impugned order of termination of service in proceedings No. 17349/RI/3/75/16 dated November 7, 1975; and
(2) On receipt of the petitioner’s application, the respondent Corporation, of course, subject to enquiry, shall quantify the emoluments payable to the petitioner from the date of retrenchment minus any amount paid in lieu of termination of service upto the date of compulsory retirement i.e., of his attaining the age of superannuation (58 year of age), deduct from the same the amount received by the petitioner as emoluments from any other employment and income from any other source and of the amount so worked out, pay to petitioner three-fourth (3/4) only, as quickly as possible, preferably within three months from the date of such application. This, in my view, will meet the ends of justice.
15. Proceeding in the manner as above with the judicial conscience aroused to the extent as indicated above, I have no hesitation in quashing the order of the Chairman-cum-Managing Director of the respondent-Corporation in proceedings No. 17349/RI/3/75-16 dated November 7, 1975, and as a consequence thereof, to hold that the petitioner is entitled to the benefits as indicated above and nothing more.
16. In the result, W.P.No. 9907 of 1984 is allowed as indicated above. W.P.No. 9906 of 1984 is dismissed. No costs.