Belated filing of conciliation petition not fatal.

P. Sathasivam, J.

1. The petitioner-Management has approached this Court to issue a writ of prohibition forbearing the first respondent to proceed with the petition filed by the second respondent-workman under Sec.2(A)(2) of the Industrial Disputes Act, 1947 in I.D. No. 34 of 1991 on the file of first respondent on various grounds.

2. The case of the petitioner is briefly stated hereunder : The second respondent herein seeks to claim reinstatement with the petitioner company on the allegation that he was denied employment about 5 years back when he reported for duty during September, 1985, by an application under Sec.2(A) of the Industrial Disputes Act, (hereinafter referred to as "the Act") in his petition dated 5.9.1990 before the conciliation officer, by way of an Industrial Dispute, after a lapse of 5 years from alleged date of non-employment. By order dated 10.12.1990, the conciliation officer has sent a failure report and consequently, the second respondent has filed I.D. No. 34 of 1991 under Sec. 2(A)(2) of the Act. It is stated that though the Act did not prescribe any limitation within which any claim for Industrial Dispute of relief should be preferred, the implied limitation would always apply. It is further stated that the Tamil Nadu Government has introduced an amendment to Sec. 2(A) of the Act with effect from 1.11.1988, wherein without a reference intervened under Sec. 10(1) of the Act, application under Sec. 2(A)(2) can be preferred before Labour Court as if the same is deemed to refer under Sec. 10(1). In the instant case, since the Legislature did not provide any limitation, the second respondent has preferred a claim after a lapse of five years, the claim of the respondent notwithstanding any other ground is vitiated by delay, Teaches, acquiescence on his part. The petitioner states that he cannot raise the question of limitation either before the conciliation officer or before the Labour Court as the conciliation officer's jurisdiction is limited. Notwithstanding the above grounds, the petitioner also states that the amendment Act applies prospectively and it will not go back to the alleged date of non-employment which was during September, 1985. In such circumstances, having no other effective alternative remedy, the petitioner approached this Court by way of the present writ of prohibition.

3. In the light of the above factual position, I have heard Mr. K. M. Vijayan, learned senior counsel for the petitioner and Mr. K. M. Ramesh, learned counsel for the 2nd respondent-workman.

4. Mr. K. M. Vijayan learned senior-counsel for the petitioner, contended that inasmuch as the non-employment was in the year 1985 and Sec. 2-A(2) of the Act having been introduced by the Tamil Nadu Government in 1988, the claim made by the second respondent before the first respondent Labour Court cannot be sustained. He also submitted that since the said provision, namely, Sec. 2-A(2) of the Act is prospective in its operation, it is not open to the second respondent to approach the Labour Court without, proper reference by the Government. In support of the said contention, he relied on a decision reported in Workmen of Firestone and Rubber Company v. The Management. On the other hand, Mr. K. M. Ramesh learned counsel for the second respondent, after taking me through the Tamil Nadu Amendment introducing Sub-sec.(2) of Sec. 2-A of the Act, has contended that in the absence of any limitation, the 2nd respondent is competent to approach the first respondent to ventilate his grievance; accordingly the first respondent is competent to dispose of the said claim. He also submitted that inasmuch as on the date of filing of the writ petition, there was, no Industrial Dispute pending before the first respondent, the present writ petition itself is not maintainable and hence, the same is liable to be dismissed. He further submitted that even otherwise by change of procedure, the petitioner management cannot be said to be aggrieved;