R.V. Raveendran, J.
1. Admitted. The matter is heard finally by consent of the learned Counsel and disposed of by this judgment.
2. The respondent was working as a conductor under the Karnataka State Road Transport Corporation-appellant herein, ('KSRTC' for short). He was subjected to a disciplinary proceedings by issuing a charge memo containing three charges relating to a trip on 30-5-1970 when he was conducting bus No. MYF 6434 on the Nandigudi - Davangere Route; (i) that he had failed to issue tickets to three passengers; (ii) that he had issued tickets of Rs. 0.30 each to 12 passengers, having collected a fare of Rs. 0.50 from each of them; and (Hi) that he had failed to follow the 'issue and start' rule. He was found guilty in the enquiry and the Disciplinary Authority imposed the punishment of dismissal, by an order dated 19-1-1972. Sixteen years thereafter on 7-10-1988, the respondent filed an application under Section 10(4-A) of the Industrial Disputes Act, 1947 ('Act' for short) before the labour Court, Mangalore challenging his dismissal. The said application was registered as I.D.A No. 295/1988. It was later transferred too Labour Court, Chickmagalore and renumbered as No. 208/1990
3. The Labour Court by Award dated 11-10-1994, rejected the said claim petition, as barred by limitation. The respondent challenged the said Award, in WP No. 3202/1995. A learned Single Judge of this Court, by order dated 2-8-1996 allowed the Writ Petition and directed the Labour Court to consider the matter afresh, including the question of delay.
4. Thereafter, the Labour Court took up the matter afresh. The respondent filed a memo dated 5-8-1998 stated that the enquiry was fair and proper. The respondent tendered oral and documentary evidence. He stated that he was 'apprehended' when he was in the process of issuing tickets. The management did not lead any evidence. The Labour Court passed a fresh award dated 28-10-1998. It held that the management failed to adduce evidence before it and therefore the charges were not proved. It held that even if the charges were held to be proved, it only resulted in a loss of Rs. 2.40 to the Corporation and therefore the punishment imposed was disproportionately high. Therefore, it set aside the order of dismissal dated 19-1-1972 and directed reinstatement with continuity of service and 25% backwages from 19-1-1972 till the date of reinstatement.
5. Feeling aggrieved, the appellant-corporation filed WP No. 35536/ 1999. The learned Single Judge dismissed the petition by order dated 21st December, 2001. While upholding the order of the Labour Court, the learned Single Judge increased the back wages in the following manner
(i) 25% from 19-1-1972 till 31-12-1989;
(ii) 50% from 1990 (that is 1-1-1990) till date of passing of the Award (28-10-1998); and
(iii) Full backwages from 29-10-1998 to date of reinstatement.
6. Feeling aggrieved, the appellant has filed this appeal urging the following grounds:
(a) The application under Section 10(4-A) filed 16 years after communication of order of dismissal, ought to have been rejected on the ground of limitation;
(b) The application ought to have been rejected on the ground that the dispute related to a stale and non- existing claim which did not survive for consideration.
(c) As the enquiry was held to be fair and proper, the Labour Court could not have interfered with the order of dismissal on the ground that Management did not lead evidence before it.
(d) In the Writ Petition filed by the Corporation-employer challenging the reinstatement with 25% back wages from date of dismissal till date of reinstatement, the learned Single Judge could not have increased the back wages to 50% from 1-1-1990 and 100% from 28-10- 1998.
Re Ground (a):
7. The Industrial Disputes Act, 1947 was amended by the Industrial Disputes (Karnataka Amendment), 1987 (Karnataka Act No. 5/88 which came into effect on 7-4-1988), inserting Section 10(4-A) which reads thus:
'(4-A) Notwithstanding anything contained in Section 9-C and in this Section, in the case of a dispute falling within the scope of Section 2A, the individual workman concerned may, within six months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later, apply, in the prescribed manner, to the Labour Court for adjudication of the dispute and the Labour Court shall dispose of such application in the same manner as a dispute referred under Sub-section (1).'
The appellant's contention regarding limitation is twofold: (i) The outer limit for filing an application Under Section 10(4-A) of the Act in regard to any order of termination passed prior to 7-4-1988 is 6-10-1988 and therefore the application filed on 7-10-1998 is barred by time, (ii) Applications under Section 10(4-A) could be maintained only in respect of orders of dismissal/discharge/retrenchment/termination communicated during a period of six months preceding 7-4-1988 and no application can be filed in respect of orders communicated prior to 7-10-1997.
8. Sri Mukkannappa learned Counsel for the respondent submitted that as the Amendment Act came into force on 7-4-1988, the six months period would expire on 7-10-1988 and not on 6-10- 1988. He relied on Section 9 of the General Clauses Act, 1987 (('GC Act' for short) which provides that in any Central Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any period of time, to use the word 'from' He contended that 7-4- 1988 (the date of commencement of the Karnataka Amendment) will have to be excluded for calculating the period of six months from the date of commencement of the Karnataka Amendment and if so done, the last date for filing an application under Section 10A (by a workman who was discharged/dismissed/terminated prior to 7-4-1998) would be 7-10-1988 and not 6-10-1988.
9. There is considerable force in the contention of Sri Mukkannappa. Section 9 of G C Act gives effect to the principle that in reckoning a period, the terminus a quo ('the limit from which', that is the first day) shall be excluded and the terminus ad quem ('the limit to which', that is the last day) shall be included.
9.1) In HARU DAS GUPTA v. THE STATE OF WEST BENGAL, : 1972CriLJ872 the Supreme Court held:
'The rule is well established that where a particular time is given from a certain date within which an act has to be done, the day on that date is to be excluded.. as a general rule, the effect of defining a period 'from such a day until such a day' within which an act is to be done is to exclude the first day and include the last day.'
9.2) In SRINIVASA SILK MILLS v. STATE OF MYSORE, AIR 1962 MYS 117 a Division Bench of this Court held:
'It is a well settled principle that the word 'from' is akin to 'after' and that the word 'from' if used for the purpose of and in reference to computation of time, as for example from a stated date, that stated date is prima facie excluded from computation.'
9.3) Having regard to Section 9 of the General Clauses Act, for reckoning the period six months, the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987 is to be excluded. The last date for filing applications, in respect of orders communicated prior to 7-4-1988, will be 7-10-1988.
10. The next question is whether the retrospective operation of Section 10(4-A) is restricted to orders of dismissal/discharge/ retrenchment/termination (for short 'termination order') communicated during a period of six months preceding 7-4-1988 and that the said section will not apply to termination orders communicated prior to 7-10-1987. Sri Mukkannappa contends that Section 10(4-A) does not mention any cut-off date in regard to the retrospective operation and therefore an application under Section 10(4-A) could be filed in regard to any order dismissal/discharge/retrenchment termination, irrespective of the date of such order, provided the application was filed on or before 7-10-1988.
11. In regard to an termination orders passed on or after 7-4-1988, the period of limitation for filing a petition before the Labour Court is six months from the date of communication of such order. A Division Bench of this Court has held in KSRTC v. KHALEEL AHMED, ILR 2002 KAR 3827 that the period cannot be extended beyond six months:
'Therefore, the remedy provided under Sub-section (4-A) is a remedy alternative to what is provided under Sub-section (1) of Section 10 of the act. But, the right created under the State Amendment is coupled with a condition that individual workman has to prefer application before the Labour Court within the time frame of six months fixed by the legislature. It is a statutory condition precedent for exercise of the right and availment of remedy under Sub-section (4-A) of Section 10 of the Act. Therefore, it has to be held that if an application is filed beyond the period of 6 months as prescribed under the above sub-section then it will be incumbent on the part of the Labour Court not to entertain such an application since the condition does not only bars the special remedy but it also strikes at the jurisdiction of the Labour Court to entertain such an application. Such construction will not also in any way prejudice the right of a workman to get his dispute resolved by a reference under Sub-section 10(1) of the Act provided the dispute sought to be raised do not become stale because of his inaction as held by the Supreme Court in the cases of Balbir Singh v. Punjab Roadways [200I(1)SCC 133], Indian Iron and Steel Co. Ltd. v. Prahlad Singh [2001(1)SCC 424] and Telecom District Manager v. A.A. Angali (ILR 2000 Kar. 2963).... We hold that if an aggrieved individual workman does not file application within the period prescribed under Section 10(4-A) of the Act, then, it will be impermissible for the Labour Court to entertain the same and the same has to be rejected as not maintainable at the very first instance after hearing the workman or his counsel like rejection of the plaint under order VII Rule 11 of the CPC.'
(emphasis supplied)
In EXECUTIVE ENGINEER v. LOKESH REDDY, 2003(3) LLJ 662 a Division Bench of this Court reiterated the principle stated in KHALEEL AHMED and further held that the period of six months mentioned under Section 4(4-A) of the Act is mandatory and not directory and therefore, any application filed beyond the period of six months has to be rejected as barred by limitation. The Division Bench held:
'If really, the Legislature intended the period of limitation provided in Section 10(4-A) of the Act as directory, then it would not have prescribed the period of limitation and it would have used the words 'at any time' instead of using the words 'within six months'. Even the absence of words 'at any time' in Section 10(4-A) though found in Section 10(1) of the Act, also shows that the Legislature deliberately provided limitation period under Section 10(4-A) and as such, did not employ the words 'at any time' found in Section 10(1) of the Act and in that place, provided six months' time to a workman to apply for adjudication of an industrial dispute and as such, to interpret the period of limitation found in Section 10(4-A) as directory and not mandatory, will be adding something not provided in that provision of law by the Legislature.'
12. We are however concerned with a case where the termination order is issued prior to the amendment. There is no dispute that Section 10(4-A) will also apply to termination orders passed prior to 7-4-1988. But the question is whether recourse Section 10(4-A) can be had in regard to any order of termination without any time limit or is there a cut-off date Section 10(4-A) enables an individual workman to challenge an termination order by directly applying to the Labour Court, within 'six months from the date of communication' of such order of termination. Having thus fixed the time within which such application can be filed, the legislature added the words 'or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later'. What is the Legislative intent? It is intended merely to extend the time to those who were entitled to seek the benefit of Section 10(4-A) as on 7-4-1988 on account of communication of termination orders within six months before that date by giving them an uniform time frame of six months from 7-4-1988, to approach the Labour Court? or is it intended virtually to provide an one time revival to all stale, dead, non-existing claims relating to orders of termination passed years or decades ago as contended by the workman? The Legislative intent should be ascertained by keeping in view the law before the amendment, the mischief sought to be remedied and the nature of remedy provided.
12.1) The Statement of objections and reasons given for introducing the State Amendment is extracted below:
'It is considered necessary to amend the Industrial Disputes Act, 1947 (Central Act 14 of 1947)-(i) to enable an individual workman to apply to the Labour Court for adjudication of a dispute falling under Section 2A of the Act without any reference to the Government'.
In KHALEEL AHMED (Supra), the object of Section 10(4-A) was stated, It was held:
'It seems quite clear to us that the State Legislature has incorporated Sub-section (4A) in Section 10 of the Act to provide a more expeditious remedy to the workman enabling him to redress his grievances without undergoing the ordeal of approaching any Labour Union and without approaching the State Government for referring his case to the Labour Court.'
12.2) The Supreme Court while dealing with Section 10(1)(c) and (d) of the Act, has repeatedly held that though the Act does not provide a period of limitation for raising a dispute under Section 10(1)(c) or (d), if an account of delay a dispute has become stale or ceases to exist, the reference should be rejected. It has also held that lapse of time results in losing the remedy and the right as well. The delay would be fatal if it has resulted in material evidence relevant to adjudication being lost or rendered unavailable vide NEDUNGADI BANK LTD v. K.P. MADHAVAN KUTTY, : (2000)ILLJ561SC ; BALBIR SINGH v. PUNJAB ROADWAYS, 2001(1) SCC 133; SAPAN KUMAR PANDIT v. U.P. STATE ELECTRICITY BOARD, 2001 AIR SCW 2685; ASST EX.ENGINEER v. SHIVALINGA, 2002(1)LLJ 457; and S.M. NILAJKAR v. TELECOM DT. MANAGER, : (2003)IILLJ359SC . If a claim was considered as stale and non-existing for the purpose of refusing or rejecting a reference under Section 10(1)(c) or (d)) is it conceivable to think that the Act was amended by insertion of Section 10(4-A) to revive such stale and dead claims?
13. The object of Section 10(4-A) is only to enable workmen to apply directly to the Labour Court for adjudication of disputes relating to termination, without going through the laborious process of seeking a reference by the Government, The Legislative intent is not to revive stale or non-existing claims. While there is no specified time limit for seeking the remedy under Section 10(1)(C) or (d) of the Act, Section 10(4-A) clearly requires that a workman who wants to directly approach the Labour Court, should do so within six months from the date of communication of the order. Then come the words 'or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later'. The use of the words 'whichever is later' with reference 'six months from the date of communication of the order of termination' and 'six months from the date of commencement of the Industrial disputes (Karnataka Amendment) Act, 1987' shows that both categories are similar. It is intended to apply only to those who had a cause of action as on 7-4-1988 on the basis that the period is six month or those in whose cases, the cause of action arose after 7-4-1988. We will now analyse the reason for giving an outer limit of six months from 7-4-1988 by giving an illustration.
14. Let us take the example of a workman who had received thetermination order on 10-10-1987. If the newly introduced provision,that is Section 10(4-A), had merely stated that the application had tobe filed within six months from the date of communication, he had tofile the application before 10-4-1988, that is hardly three days fromthe date when the amendment came into effect on 7-4-1988. Theworkmen would have required some reasonable time to know aboutthe new provision and take steps to approach the Labour Court.Therefore, all workmen who were communicated orders of terminationwithin six months prior to 7-4-1988 were given the benefit of uniformsix months time from 7-4-1988, irrespective of the date of expiry ofsix months. When a new remedy or relief is provided by a statute,such a transitional provision is normally made to ensure that personswho are given a special right, do not lose it for want of adequate timeto enforce it, though they have a cause of action or right as on thedate when the new remedy or relief comes into effect. Section10(4-A) does not therefore revive non-existing or stale or dead claims but only ensuring that claims which were live, by applying the six month rule in Section 10(4-A) as on the date when the Section came into effect, have a minimum of six months time provided in the Section. This is ensured by adding the words 'or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, which is later' to the words 'within six months from, the date of communication to him of the order of discharge, dismissal, retrenchment or termination.' In other words all those who were communicated orders of termination during a period of six months prior to 7-4-1988 were deemed to have been communicated such orders of termination as on 7-4-1988 for the purpose of seeking remedy. This, as we stated earlier is purely a transitional provision. Therefore, the words 'within six months from the .. date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later' only enables those who had been communicated order of termination within six months prior to 7-4- 1988, to apply under Section 10(4-A).
15. Section 10(4-A) is not a provision of 'limitation' for an 'action'. Nor does it create any substantive right. On the other hand Section 10(4-A) merely creates an alternative process for seeking an existing remedy subject to a fetter that such remedy should he sought within the period specified and not beyond that period. It does not take away the remedy under Section 10(1)(c) and (d). Such a procedural provision is not intended to breathe life into claims which had become stale and dead long back. We may in this context refer, by way of broad analogy, to provisions relating to limitation. Statutes relating to limitation are considered to be retrospective in so far as they apply to all legal proceedings brought after they come into force, for enforcing causes of action accrued earlier, but they are prospective in the sense that they neither have the effect of reviving a right of action which is already barred on the date of their coming into operation, nor do they have the effect of extinguishing a right of action subsisting on that date (See G. P SINGH'S PRINCIPLES OF STATUTORY INTERPRETATION 7th EDITION page 381). Therefore, when the right to file a suit comes to end on expiry of period of limitation prescribed under a law relating to limitation, and thereby becomes barred by limitation, the right is not revived by a later limitation Act, even if it provides a larger period of limitation than that provided by the earlier Act. If such a right is to be revived or re-invested, it can be only by an express provision.
16. Section 10(4-A) provides an alternative procedure to seek redressal in regard to an order of termination, by making an application directly to the labour Court, within six months from the date of communication of the order of termination, without the intervention or assistance of an Union and without having to approach the appropriate Government for making a reference. Such a provision cannot be interpreted as enabling a workman to seek remedy beyond six months from the date of communication, except to the extent expressly provided for. The true and proper interpretation of Section 10(4-A) is that an individual workman can apply to the Labour Court for adjudication of the dispute relating to an order of discharge/dismissal/retrenchment/ termination within six months from the date of communication to him, of such order of termination. Where such remedy becomes available to a workman as on 7-4-1988 on account of his having received the communication of termination order within six months prior to 7-4-1988, then the six months period stands extended upto 7-10-1988.
17. Therefore, the effect of Section 10(4-A) can be stated as follows:
(i) In regard to termination orders communicated on or after 7-4-1988, the outer limit for making an application under Section 10(4-A) is six months from the date of communication of the order.
(ii) In regard to termination orders communicated during a period of six months prior to 7-4-1988, the period of limitation would be up to 7-10-1988 even though the six month period from the date of communication may actually expire between 7-4-1988 to 7-10-1988.
(iii) In regard to termination orders communicated prior to 7-10-1987, no claim petition under Section 10(4-A) could be filed, as there is no provision for such claims. The intent of Section 10(4A) is to give a right to the aggrieved workman to challenge the termination order within six months from the date of accrual of cause of action and not to furnish an one time revival in regard to stale and non-existing claims.
18. Sri Mukkannappa learned Counsel for the respondent cited a series of decisions in support of his contention that any aggrieved workman, even if he had been terminated 30 or 40 years prior to the commencement of the Karnataka Amendment Act, can file a claim petition under Section 10(4A) on or before 7-10-1988. The decisions are NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION v. I.H. GADWAL, ILR 1999 KAR 4588. MANAGEMENT OF KSRTC v. B.C. HIREMATH, ILR 2001 KAR 5346 and N.H. THIPPESWAMY v. KSRTC, W.A.No. 3414 & 3415/1995 dd 15.7.1997.
18.1) GADWAL is an authority for the preposition that the remedy under Section 10(4A) is independent of the remedy available under Section 10(1)(c) and (d) of the Act. It has been held that even in a case where a request for reference under Section 10(1)(c) had been rejected, such rejection will not come in the way of the aggrieved workman filing a claim petition under Section 10(4A).
18.2) In B.C. HIREMATH the Division Bench held that where there was 11 years delay in raising the dispute, the workman was not entitled to backwages or continuity of service.
18.3) In THIPPESWAMY, the Division Bench observed that the Act is a complete code and as no period of limitation is prescribed for making a reference under Section 10(1), a reference cannot be rejected only on the ground of limitation. Referring to Section 10(4A), the Court also observed thus:
'It has to be kept in mind that Section 10(4A) of the Act was intended to be a beneficial legislation for the workmen facilitating them to approach the Court directly with the time specified therein.'
18.4) The question which we have considered, that is whether workmen who have been communicated termination orders prior to 7-10-1987 can maintain a petition at all under Section 10(4A) was neither raised nor considered nor decided. Therefore the said decisions are of no assistance to the respondent.
19. We therefore hold that the Labour Court could not have entertained a petition under Section 10(4A) of the Act, in regard to the termination order communicated in January 1972. In view of our finding relating to ground (a), the other grounds do not survive for consideration. However, as those were also argued, we will briefly consider them.
Re. Ground (b):
20 Even assuming that an application could have been entertained by the Labour Court in regard to orders of termination communicated prior to 7-10-1987, the Labour Court ought to have rejected the claim on the ground that it was stale and non-existing. The Labour Court is not precluded from examining whether the claims is in regard to a subsisting claim or whether the claim should be rejected on the ground that the dispute had become stale and non- existent on account of long unexplained delay and laches on the part of the workman in raising the dispute. The fact that a provision is made in Section 10(4A) for filing an application challenging the termination order does not mean that the Labour Court is precluded from examining whether the dispute is subsisting or had become stale. Unexplained delay is a ground to deny relief - vide NEDUNGADI BANK v. K. P.MADHAVAN KUTTY, BALBIR SINGH v. PUNJAB ROADWAYS, ASSISTANT EXECUTIVE ENGINEER v. SHIVALINGA(Supra). Therefore, even if the petition was maintainable, 16 years of delay in seeking relief, disentitles the workman to any relief.
Re-Ground (c):
21 The Labour Court has concluded that the charges are not proved because management did not produce any evidence before it to substantiate the charges. The learned Single Judge has affirmed the said finding on the ground that evidence cannot be re-appreciated in a writ proceedings. But, what is ignored is that the workman had conceded before the Labour Court by filing a memo, that the enquiry is fair and proper. If so, the question of management again leading evidence before the Labour Court to establish the charges does not arise. The management had let in evidence In the enquiry to prove the misconduct and the Enquiry Officer after giving due opportunity to the workman, submitted a report holding that the charges were proved. The said finding was accepted by the Disciplinary Authority. The Labour Court did not examine the evidence let in the enquiry to consider whether the charges are proved or not. Nor did it hold that the finding of guilt recorded in the enquiry is erroneous or unjustified. The Labour Court and Learned Single Judge cannot expect the management to let in evidence before the Labour Court proving the charges, 27 years after the incident, when the charges were duly proved in the domestic enquiry. In the circumstances, the finding that charges are not proved by letting in evidence in regard to misconduct before the Labour Court, cannot be sustained.
Re. Ground (d).
22. The Labour Court ordered reinstatement with 25% backwages from date of dismissal (19-1-1972). The workman did not challenge the said award. The management challenged the award contending that the claim ought to have been rejected on the ground of delay and limitation, and on the ground that Labour Court could not have interfered with the finding of guilt recorded in the enquiry or with the punishment imposed. It also contended that the direction to reinstate the workman with 25% backwages was uncalled for. The question whether the backwages was inadequate was not before the Learned Single Judge. Therefore, in such a Writ Petition filed by the management, the learned Single Judge, while dismissing the Writ Petition, ought not to have increased the back wages.
23. In view of our decision on grounds (a) and (b), the claim petition under Section 10(4A) is liable to be rejected. We accordingly allow this appeal and set aside the order of the learned Single Judge and also set aside the award of the Labour Court. The claim petition under Section 10(4A) is dismissed. Parties to bear their respective costs.