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2004 Supreme(Bom) 1039
IN THE HIGH COURT OF BOMBAY
Mhatre Nishita (Smt.), J.
Vasudeo Dharanidhar Joshi others .... Petitioners.
Versus
Bombay Textile Research Association others.... Respondents.
Writ Petition No. 5481 of 1996 along with Writ Petition Nos. 6275 of 1996, 537 538 of 1997, decided on 26/27-7-2004.
Advocates appeared :
S.N. Deshpande, for petitioner in W.P. Nos. 5481 6275/1996 for respondent No. 1 in W.P. Nos. 537 538/1997.
A.V. Bukhari with P.M. Palshikar, for petitioner in W.P. Nos. 537 538/1997 and for respondent No. 1 in W.P. Nos. 5481 6275/1996.
Respondent No. 2 formal party in all W.Ps.
The judgment established the principle that complaints alleging unfair labour practice must be filed within the prescribed period and must fall within the jurisdiction of the adjudicating court.
Headnote:
Unfair Labour Practice - Retirement Age Dispute - M.R.T.U. P.U.L.P. Act - Model Standing Orders - 2(p) of the Industrial Disputes Act, 1947 - [Item 5, 9, 1(a), (b), (d), (f) of Schedule IV]
Fact of the Case:
The petitioners were retired by the respondent at the age of 58 years, contrary to their claim of entitlement to continue till the age of 60 years as per the Model Standing Orders. They filed complaints alleging unfair labour practice and sought wages till the age of 60 years.
Finding of the Court:
The Industrial Court held that the respondent committed unfair labour practice under Items 5 and 9 of Schedule IV and also under Items (a), (b), (d) and (f) of Schedule IV of the M.R.T.U. P.U.L.P. Act, 1971. However, the court found the complaints barred by limitation and not maintainable under Item 1 of Schedule IV.
Issues: The court analyzed the maintainability of the complaints, the concept of continuing cause of action, and the jurisdiction of the Industrial Court to adjudicate on unfair labour practices.
Ratio Decidendi: The court held that the complaints were not maintainable due to being barred by limitation and falling outside the jurisdiction of the Industrial Court under Item 1 of Schedule IV. The concept of continuing cause of action was rejected based on the overt act of termination of service by the employer.
Final Decision: Writ Petition No. 5481 of 1996 and Writ Petition No. 6275 of 1996 were rejected, while Writ Petition No. 537 of 1997 and Writ Petition No. 538 of 1997 were allowed.
2.The facts giving rise to the present petitions are not disputed. The workmen were employed with the BTRA and continued as such in employment till they attained the age of 58 years. The workman in Writ Petition No. 5481 of 1996 was issued a memo on 30-9-1984 informing him that he would be retired on 30-12-1989 when he would be 58 years of age. The workman in Writ Petition No. 6275 of 1995 was informed by a letter of 2-6-1987 that he would be retired on 6-7-1987 on completion of 58 years. Both these workmen, therefore, were accordingly, retired at the age of 58 years and had no cause to make a grievance till they filed their complaints on 24-11-1995 and 22-11-1995 respectively. The contention raised by each of the petitioners in their complaints was that the BTRA had retired them at the age of 58 years in violation of the Model Standing Orders which were applicable. According to them, they were entitled to continue till the age of 60 years. Furthermore, according to the workmen, some other workmen continued in service till the age of 60 years after the petitioners were retired. This they claimed was discriminatory and, therefore, submitted that there was an unfair labour practice under Item 5 of Schedule IV of the M.R.T.U. P.U.L.P. Act. They also claimed that by issuing them the notices terminating their services, the BTRA had committed unfair labour practice under Item 1 of Schedule IV of the M.R.T.U. P.U.L.P. Act. The claim was also made that in the case of one G.D. Kamath, A.R. Gadigaonkar and V.P. Shetye they were deemed to have been continued in service upto the age of 60 years and they were paid two years wages and other benefits by the BTRA. According to the petitioners, BTRA ought to have complied with the orders of this Court in Writ Petition No. 2665 of 1991 in respect of G.V. Kamath and in Writ Petition No. 2324 of 1994 in respect of A.R. Gadigaonkar where the learned Single Judge of this Court had taken the view that the Model Standing Orders were applicable and that the age of retirement for the workmen of BIRA was 60 years. The petitioners, therefore, claimed by their complaints that they were entitled to have been deemed to be in service till they attained the age of 60 years and accordingly, ought to be paid wages upto that age.
3.The written statement filed by BTRA before the Industrial Court was to the effect that the circular which was issued by BTRA on 2nd December, 1971 and which has been signed by individual workers specifies that the age of retirement for Scientific and Research Officer would be 60 years and 58 years for other workmen. According to BTRA, the complainants having signed this circular, it constituted a contract between the parties and, therefore, the workmen could not resile from that contract stipulating the age of retirement as 58 years. BTRA also pleaded that the Model Standing Orders permitt
