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1994 Supreme(Bom) 61
IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf, J.
National Textile Corporation Ltd. .....Petitioners.
Versus
Mrs. P. Gama and others.....Respondents.
Writ Petition No. 2878 of 1990, decided on 2-3-1994.
Advocates appeared:
S.N. Deshpande, for the petitioner.
G.V. Parmar, for the respondents.
Headnote:BOMBAY INDUSTRIAL RELATIONS ACT, 1946
Sections 42 (4) and 78-Bombay Industrial Relations Rules 1947 Rule 53 (1)-Bombay Industrial Employment (Standing Order) Rules, 1947, Rules 12(k) and 13 - Limitation Act, 1963, Section 5 - Work-Giving of-Refusal for Maintainability of application under Section 78 of 1946 Act-Limitation for.
Under Section 78 of the Act the powers of the Labour Court are restricted to decide disputes specified in Clause A, to try offences specified in Clause B, under Clause C require any employer to withdraw any change or carry out any change which is a mailer in issue in any proceeding before it and under Clause D require an employer where it finds that the order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee made by the employer was covered by any of the sub-clauses thereof to reinstate the employee forthwith or to pay to the employee in addition to wages compensation in regard to the logs of employment etc. The case of refusal to give employment not falling in any of the expressions dismissal, discharge removal, retrenchment, termination of service or suspension would not fall in any of the clauses of Section 78 of the Act. In such a situation it refusal to give work on 18 February, 1984 is there, it is not a case of abandonment of service. For the purposes of Section 78 of the Act it can be treated as a case of dismissal, discharge. removal, retrenchment or termination of service of the employee by the employer In that event the Labour Court will have the powers under Section 78 to decide the dispute. But then Section 42 (2) and Rule 53 will come into play and the limitation of three months for making an application shall apply.
First if it is not an order of termination, etc. as observed earlier, it will not fall in any of the clauses or sub-clauses of Section 78 (1) and the Labour Court will have no jurisdiction to decide any dispute in relation thereto. Second, if it is an order of termination, etc. it would continue to be an order of termination notwithstanding it being in violation of the requirements of the Standing Order. In such a case, it would not cease to be an order under the Standing Order merely because it has been passed in violation of the requirements thereof though that might be a ground to raise a dispute regarding the propriety or illegality of such order passed by an employer purporting to act under the Standing Order. It is therefore, clear that the limitation of three months prescribed by Rules 53 is applicable in such a case. The intention of the legislature in prescribing the time limit for making an approach letter by an employee aggrieved by any order of the employer passed under the Standing Orders is to see that all disputes in regard to the Standing Orders are raised at the earliest possible and stale issues are not reactivated after long lapse of time. It is also evident from the fact that the limitation under Rule 53 which was originally six months was reduced to three months in the year 1965 The whole exercise appears to be intended to ensure that disputes are raised within a reasonable time not exceeding the time specified in the said rule. Evidently in the instant case according to the employee herself, she approached for work of 18, February, 1994 but she was refused work Despite that she decided to wait for almost one year and four months and filed an application to the Labour Court only on 30 May, 1985. The said application, on the face of it, is barred by limitation. There is no application for condonation of delay. No cause has been shown for the delay. In such a situation, there is no basis or justification for the Industrial Court for its observation that even if the application barred by limitation it was a fit case for condonation of delay. In that view of the matter, 1 do no propose to go into the controversy whether the provisions of the Limitation Act will be applicable to an application under Section 78 read with Rule 53 of the Bombay Industrial Relation, Rules or not. That aspect is left open to be examined in a proper case as and when occasion arises.
2. Briefly stated, the material facts of the case are as follows : Respondent No. 1, Mrs. P. Gama, was employed in the undertaking of respondent No. 2 in the year 1966 and since then she was working as a permanent semi clerk. In the month of January, 1982 there was a strike in the mill of respondent No. 2. The petitioner was a member of Rashtriya Mill Mazdoor Sangh who were on strike. She was also on strike from 18 January, 1982 onwards. The strike continued for some time. After some time, some of the mills started functioning. The Kohinoor Mills in which the petitioner was working started functioning some time in February, 1984 after it was taken over on 18 October, 1983 by the Government of India under the provisions of the Textile Undertakings (Taking Over of Management) Act, 1983. In May, 1984, the petitioner allowed its workers to resume work. The case of respondent No. 1 is that she was not given work. The case of the petitioner employer, on the other hand, is that respondent No. 1 did not report for work at any time. According to the petitioner, the workers used to make the application on the basis of which they were allowed to work. The petitioner contends that the respondent No. 1 had abandoned the service. According to respondent No. 1, she did not abandon the work but after the commencement of the Mill in February, 1984 she was refused work. She made an application to the Labour Court under section 78 read with section 42(4) of the Bombay Industrial Relations Act, 1946 (the Act). The Labour Court arrived at a categorial finding that respondent No. 1 had failed to prove that she approached the mill on 10 February, 1984 but she was refused employment. The Labour Court also held that if she was not given work on 10 February, 1984 or soon thereafter despite her reporting for work, it amounted to termination of service and in that case the cause of action would arise on 10 February 1984 and as per the requirements of section 42(4) of the Act read with rule 53 of the Rules an application should be made within three months from the date of such order. That having not been done, the approach letter filed long thereafter on 30 June, 1985 it was barred by limitation. The Labour Court, therefore, dismissed the application of the employee. The employee appealed to the Industrial Court at Bombay under section 84 of the Act. The Industrial Court held that the application was within time. In the alternative, it held that if it was beyond time, it was a fit case for condonation of delay. According to the Industrial Court, no action having been taken by the employer against the employee concerned for not reporting for duty in between 18 January, 1982 to 30 May, 1985, section 42(4) read with rule 53 had no application and the period of limitation prescribed therein for filing an application would not apply. The Industrial Court accepted the fact that rightly or wrongly the petitioner had joined the strike which commenced on 18 January, 1982. The Industrial Court, therefore, held that she was entitled to reinstatement. Dealing with the question of back wages, the Industrial Court observed that the petitioner had participated in the strike which commenced on 18 January, 1982. According to the Industrial Court, it could be presumed that on 30 March, 1985 when she filed an approach letter, she withdrew herse
