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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

O. O. C. J.

WRIT PETITION NO.1517 OF 2002

Pedru Mozes Fernandes ..Petitioner.

Vs.

National Textile Corporation

(S.M.) Ltd. ..Respondent.

....

Mr.N.M.Ganguli for the Petitioner.

Mr.Shailesh More with Mr.S.M.Naik for

the Respondent.

...

CORAM : DR.D.Y.CHANDRACHUD, J.

CORAM : DR.D.Y.CHANDRACHUD, J.

CORAM : DR.D.Y.CHANDRACHUD, J.

8th April, 2005.

ORAL JUDGMENT :

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

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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.

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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 p