( 1 ) IN an appeal filed under section 84 of the bombay Industrial Relations Act, 1946 the Industrial Court has set aside an order of reinstatement and of backwages that was passed by the Labour Court. The industrial Court has held that the approach notice that was preferred by the petitioner was barred by limitation and that it was not preferred within the period stipulated in section 42 (4) of the Act. The petitioner has challenged the judgment and order of the Industrial Court in these proceedings under Article 226 of the constitution.

( 2 ) THE petitioner joined the services of Tata Mills on 1st March, 1973 and was a permanent workman who was engaged as a boiler serviceman. The petitioner worked continuously until 18th January, 1982. On this date a general strike took place in the Cotton Textile Industry including in Tata Mills. The case of the workman was that all the textile mills were closed for a long period of time as a result of the textile strike. As soon as the tension had eased, workmen started reporting for work and the petitioner also reported for duty in front of the gates of the mill every day. However, according to the petitioner the mill in collusion with the Rashtriya Mill Mazdoor Sangh (RMMS) took back only those workers on work who were deemed to be fit and proper according to the union. According to the petitioner, he was informed time and again by the security staff at the gate of the Mill and by the supervisory staff of the company that his name would appear on the notice board that would be displayed at the gate. According to the petitioner his services were never terminated and the relationship of employer and employee continued to subsist. The mill came to be taken over by the Central government on 18th October, 1982 under the Textile Undertakings Takeover of management Act, 1983 and it is the case of the petitioner that even thereafter he had approached the respondent for employment. Despite assurances, according to him, he was not engaged and eventually on 20th January, 1993 an approach notice under section 42 (4) of the Bombay Industrial Relations Act, 1946 was addressed to the respondent. That having evinced no response, the petitioner filed an application under section 79 of the Act praying for a direction that he be allowed to resume duties with consequential benefits including backwages. The respondent filed a written statement denying the allegations of the petitioner and submitting inter alia that the delay on the part of the petitioner in moving an approach notice was unexplained.

( 3 ) EVIDENCE was adduced before the Labour Court both on behalf of the petitioner and the respondent. By an order dated 18th May, 1998 the Labour court came to the conclusion that the approach notice submitted by the petitioner was not barred by limitation. The Labour Court held on the basis of the evidence that the workman had reported for duty on 18th January, 1982 in spite of the strike and that he had eventually sent an approach notice to the employer. The employer, the Labour Court held, ought to have allowed the workman to join duty as no charge sheet or a decision to dismiss the workman had been taken by the management. An order of reinstatement was passed and insofar as backwages were concerned, the Labour Court held that the petitioner would be entitled to his backwages between 18th January, 1982 till 31st December, 1983 and from 20th january, 1993 till the date of reinstatement. The workman was thus held not to be entitled to his backwages for a period of approximately nine years. The matter was carried in appeal by the respondent. By the impugned judgment and order dated 18th February, 2002, the Industrial Court held that the provisions of section 42 (4) of the Bombay Industrial Relations Act, 1946 were mandatory; that the workman had issued an approach notice only in January, 1993 and that the delay in doing so could not be condoned. In the circumstances, the order of the Labour court came t