W. P. No. 2878 of 1990

2nd March, 1994.

Petitioner Counsel: S. N. Deshpande
Respondent Counsel: G. V. Parmar

JUDGMENT

JUDGMENT :- This writ petition has been filed by National Textile Corporation Ltd., Bombay under Article 226 of the Constitution. The petitioner is aggrieved by the judgment and order of the Industrial Court, Maharashtra dated 11th July 1990 in Appeal I. C. No. 149 of 1989 setting aside the order of the Labour Court under section 78 read with section 42(4) of the Bombay Industrial Relations Act, 1946 and holding that the respondent No. 1 was entitled to the relief of reinstatement as also half the wages for the period from 30 March 1985 till the date of her reinstatement in her original job.

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 ofthe Mills started functioning. The Kohinoor Mills in which the petitioner was working started functioning sometime in February 1984 after it was takenover 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 categorical 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 48(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 49(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 herself from the strike. The Industrial Court therefore, allowed half wages for the period from 20 March 1985 till the date of joining and refused to grant wages for the period from the date of strike till the filing of the approach letter as during that period admittedly she participated in an illegal strike. It is this order of the Industrial Court that has been challenged by the petitioner.

3. Learned counsel for the petitioner submits that respondent No. 1 having apparently abandoned the work is not entitled to file an application to the Labour Court under section 78 of the Act. Under section 78, the Labour Court has power only to decide matters specified therein. According to him, if the case of the employee is that no order whatsoever was passed by the employer in that case it will not fall in any of the cases which fall within the jurisdiction of the Labour Court under section 78 of the Act. If refusal to give work is held to be an order, then it amounts to an order of termination of services under the Standing Order. Counsel submits that the order of termination will not cease to be an order of termination even if it is not strictly in compliance with the requirements of the Standing Orders. Even in that case it would be an order of termination under the Standing Orders and the limitation for making an application for change in respect of an order passed by the employer under the Standing Orders shall be applicable which is three months from the date of the order. On merits, learned counsel submits that there is nothing on record except her mere allegation in the approach letter to show that the employee approached for work but she was refused work. Under the circumstances, according to counsel for the petitioner, the Industrial Court was neither justified in allowing the application of the respondent-employee nor in directing reinstatement and payment of part of the back wages. Counsel for the petitioner also challenges that part of the order of the Industrial Court wherein it has been held that if the application is barred by limitation, it is a fit case to condone delay as according to it neither there is an application for condonation of delay by the employee nor is there any material on record to show any sufficient cause for such delay. Delay, according to him, cannot be condoned in the manner as has been sought to be done in this case by the Industrial Court. He, therefore, wants the order of the Industrial Court to be set aside and that of the Labour Court restored.

4. Learned counsel for respondent No. 1-employee supports the order of the Industrial Court. According to him the limitation under section 48(4) read with rule 53 is not applicable as there is no order of termination under the Standing Orders passed by the employer. He submits that in such a case, the employee is free to file an application under section 78 at any time he likes. No limitation will apply to such an application. On merits, learned counsel submits that no fault can be found with the order of the Industrial Court in directing reinstatement and payment of half the back wages from the date of the approach letter till the date of reinstatement. He submits that in fact the Industrial Court should have awarded full back wages from the date of refusal to give work till reinstatement. He, however, does not claim the same as he has not challenged the order of the Industrial Court.

5. I have considered the rival submissions. Section 78 of the Bombay Industrial Relations Act (the Act) which deals with the powers of the Labour Court is in the following terms.

"78. Power of Labour Court. - (1) Labour Court shall have power to -

A. decide -

(a) disputes regarding -

(i) the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders;

(ii) the application and interpretation of Standing Orders;

(iii) any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III except item (5) thereof and matters arising out of such change;

(b) industrial disputes -

(i) referred to it under section 71 or 72;

(ii) in respect of which it is appointed as the arbitrator by a submission;

(c) whether a strike, lock-out, closure, stoppage or any change is illegal under this Act;

B. try offences punishable under this Act and where the payment of compensation on conviction for an offence is provided for, determine the compensation and order its payment;

C. require any employer to -

(a) withdraw any change which is held by it to be illegal or withdraw temporarily any change the legality of which is a matter of issue in any proceeding pending final decision, or

(b) carry out any change provided such change is a matter in issue in any proceeding before it under this Act.

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, -

(i) was for fault or misconduct committed by the employee which came to the notice of the employer more than six months prior to the date of such order; or

(ii) was in contravention of any of the provisions of any law, or of standing order in force applicable to such employee, or

(iii) was otherwise improper or illegal,

(a) to reinstate the employee forthwith or by a date specified by it in this behalf and pay him wages for the period beginning on the date of such order of dismissal, discharge, removal, retrenchment, termination of service or suspension, as the case may be, and ending on the date on which the Labour Court orders his retirement or on the date of his reinstatement, whichever is later, or;

(b) to pay to the employee in addition to wages (being wages for the period commencing on the date of his dismissal, discharge, removal, retrenchment or termination of service and ending on the date on which the Labour Court orders such payment), such sum not exceeding four thousand rupees by way of compensation, regard being had to loss of employment and possibility of getting suitable employment thereafter.

(2) Every offence punishable under this Act shall be tried by the Labour Court within the local limits of whose jurisdiction it was committed.

Explanation. - A dispute falling under clause (a) of paragraph A of sub-section (1) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section (4) of section 42, no agreement is arrived at in respect of an order, matter of change referred to in the said proviso."

Section 42(4) of the Act which gives the right to an employment desiring a change in respect of any order passed by the employer under the Standing Orders to make an application to the Labour Court reads as under :

"(4) Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under Standing Orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders or (iii) an industrial matter specified in Schedule III, except item (5) thereof shall take an application to the Labour Court and as respects change desired in any industrial matter specified in item (5) of Schedule III, to the Industrial Court :

Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period."

Rule 53 of the Bombay Industrial Relations Rules, 1947, so far as relevant, reads as under :

"53. (1) Any employee or a Representative Union desiring a change in respect of (i) any order passed by the employer concerned under Standing Orders or (ii) any industrial matter arising out of the application or interpretation of Standing Orders or (iii) an industrial matter specified in Schedule II shall make an application in writing to the employer. An application for change in respect of an order passed by the employer under Standing Orders shall be made within a period of three months from the date of such order. Where such application is made by an employee it may be made to the employer direct or through the Labour Officer for the local area or the representative of employees concerned. A copy of the application shall be forwarded to the Commissioner of Labour and in cases where such application is not made through the Labour Officer for the local area to that officer.

x x x x x x x x x x x x x x x x x x x x x"

6. A conjoint reading of the above provisions of the Act and the rules makes it crystal clear that 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 to carry out any change which is a matter 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 loss 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 if 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.

7. I have also considered the submission of counsel for the respondent-employee that under Standing Order 13 no order of dismissal can be made unless the employee concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. According to him, in the instant case this requirement was not complied with and, as such, it is not an order under the Standing Order. I am not impressed by the above argument for reasons more than one. 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 Rule 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 dispute 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 on 18 February 1984 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 is barred by limitation it was a fit case for condonation of delay. In that view of the matter, I do not 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 Relations Rules or not. That aspect is left open to be examined in a proper case as and when occasion arises.

8. Learned counsel for the petitioner fairly stated before me that the petitioner has already reinstated the respondent-employee after the order of the Industrial Court and he is prepared to retain her in employment despite any adverse order against her in this writ petition.

9. In view of the above stance of the learned counsel for the petitioner, though the order of the Industrial Court is not tenable in law, it is not necessary to set aside that part of the direction which pertains to reinstatement of the employee. Under the circumstances, I set aside only that part of the impugned order which purports to direct payment of half back wages to the employee from 30th March 1985 till the date of reinstatement.

10. In the result, this writ petition is allowed to the extent indicated above.

11. There shall be no order as to costs.

12. It is stated by counsel for the parties that a sum of Rs. 65,000/- had been deposited by the petitioner with the Prothonotary and Senior Master in this case which was withdrawn by Respondent-employee on furnishing a bank guarantee. Learned counsel for the respondent-employee submits that the Prothonotary and Senior Master may be directed not to enforce the bank guarantee for a period of eight weeks from today. Ordered accordingly.

13. Certified copy expedited.

Ordered accordingly