2004(3) ALL MR 211
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

N.N. MHATRE, J.

Shri. Krishna Ganpat Kasar Vs. India United Mills No.2 & Anr.

Writ Petition No.2782 of 1986

7th April, 2004

Petitioner Counsel: Mr. S. N. DESHPANDE
Respondent Counsel: Mr. I. A. SAIYAD

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), Sch.IV, Item 5, 9, 10 - Retirement age - Petitioner working in retail cloth shop of a mill - Mill workers were entitled to continue in service till the age of 63 years under the standing orders - Petitioner retired at the age of 60 years as the retail shop was not covered by Bombay Industrial Relations Act - Held, contention that petitioner ought to have been retired only at age of 63 years could not be accepted as same set of service conditions were not applicable in two establishments - Further held that cause of action arose immediately on the receipt of retirement memo and not on the date of retirement itself. (Paras 7, 9)

Cases Cited:
S. G. Chemicals and Dyes Trading Employees Union Vs. S. G. Chemicals and Dyes Trading Ltd., 1986 I LLJ 490 [Para 6]
National Textile Corporation (South Maharashtra) Ltd. Vs. A. S. Athavale, 1992 Lab.I.C. 2209 [Para 7,8]
Mathuradas Mohta College of Science Vs. R. T. Borkar, 1997(1) ALL MR 149=(1997)2 Mh.L.J. 168 [Para 7]


JUDGMENT

JUDGMENT :- This petition impugns the order of the Industrial Court whereby the Industrial Court has dismissed the complaint on the ground that the Petitioner has not made out a case under Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act and has also not been able to explain the delay in filing the complaint.

2. The facts giving rise to the present petition are as follows:

The Petitioner was employed in the retail cloth shop of Respondent No.1 mill. He was issued a retirement memo on 26.11.1989 retiring him w.e.f. 9.6.1990 at the age of 60 years. The Petitioner challenged this action of the Respondent-mill by filing complaint (ULP) No.758 of 1990. The main contention raised in the complaint was that the Petitioner should be continued in service till the age of 63 years just as the mill workers are continued till the age of 63 years. According to the Petitioner, retiring him at the age of 60 years attracted the provisions of Item 5, 9 and 10 of Schedule IV of the MRTU & PULP Act. The contention was that two sets of service conditions could not apply to those employed in the retail cloth shop and persons working in the mill when they do the same kind of work.

3. In the written statement filed by Respondent No.1 it was pleaded that since retail cloth shop was covered by the Bombay Shops and Establishments Act, model standing order would apply and therefore, the Petitioner had rightly been retired at the age of 60 years. The contention was that the Petitioner had no right to continue upto the age of 63 years as the retail cloth shop was not covered by the standing orders framed under the Bombay Industrial Relations Act.

4. The evidence of the workman was led before the Industrial Court. Respondent No.1 chose not to examine any workman on their behalf.

5. The Industrial Court held that the complaint was barred by limitation as the Petitioner had challenged the action of the respondents in issuing the retirement memo only after he was in fact retired on 9.6.1990 although the memo had been issued in November, 1989. The Industrial Court came to the conclusion that since the Petitioner was working as a cashier in the retail cloth shop, he did not fall under the category of operatives and, therefore, the standing orders framed under the Bombay Industrial Relations Act were not applicable to the Petitioner.

6. The learned Advocate for the Petitioner submits that after coming into force of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 the employer cannot show favouritism to one set of workmen and give them better benefits than the workman. He submits that if the employer indulges in such action, the provisions of Item 5 of Schedule IV of the MRTU & PULP Act are attracted. He then submits that when the mill workers are entitled to continue in service under the standing orders applicable till the age of 63 years, the workmen employed in the retail cloth shop would have to be treated in the same manner although the retail cloth shop is not covered by the Bombay Industrial Relations Act. According to the learned Advocate, for the sake of receiving benefits, the coverage by the Bombay Industrial Relations Act is not necessary as the employer cannot have two sets of service conditions for workmen in the establishment. He relies on the judgment in the case of S. G. Chemicals and Dyes Trading Employees Union Vs. S. G. Chemicals and Dyes Trading Ltd. & Anr. (1986 I LLJ 490) to submit that although the mill is registered under the Factories Act and the retail cloth shop is registered under the Bombay Shops and Establishment Act, it does not follow that for providing certain benefits to the workmen employed in the factory or shop as the case may be the registration under a specific Act is iimportant. According to the learned Advocate, merely because registration is under a particular Act it would not mean that the benefits to the employees in the different establishments should vary especially if they are doing the same kind of work.

7. On the other hand, Mr. Saiyad, Advocate appearing for Respondent No.1, submits that the complaint is barred by limitation as held by the Industrial Court and, therefore, the Industrial Court need not have embarked on the merits of the case. He further submits that as held by the Division Bench of this Court in the case National Textile Corporation (South Maharashtra) Ltd. Vs. A. S. Athavale (1992 Lab I.C. 2209), the retail cloth shop is not covered by the Bombay Industrial Relations Act and, therefore, the standing orders framed under that Act will have no application to the employees working in the retail cloth shop. According to the learned Advocate, the contract of service indicates and it has been the practice to adopt the provisions of the model standing orders qua the workmen employed in the retail cloth shop as there are less than 50 workmen in the retail cloth shop. Reliance is placed on the judgment of this Court in the case of Mathuradas Mohta College of Science Vs. R. T. Borkar & Ors., (1997)2 Mh.L.J. 168 : [1997(1) ALL MR 149]) to submit that since there is a statutory limit prescribed within which a complaint can be filed, it is necessary to file an application for condoning the delay which the petitioner has not done. According to him, the Industrial Court has rightly held that the complaint is barred by limitation because the cause of action arose when the Petitioner received the retirement memo on 26.11.1989 and not only after the actual retirement.

8. It is undisputed that the Petitioner was working in the retail cloth shop. He continued to work there till the age of 60 years and was retired after he attained that age. The workmen in the retail cloth shop are not governed by the Bombay Industrial Relations Act as held by the Division Bench of this Court in the case of National Textile Corporation (supra). Therefore, the standing orders framed under the Bombay Industrial Relations Act would also not apply to the workmen employed in the retail cloth shop. The contention of the workmen that he should have been continued in service till 63 years of age since others have been continued in the mill till that age under the standing orders Act, therefore, cannot be accepted. The submissions of the learned Advocate for the Petitioner that despite the Bombay Industrial Relations Act not being applicable, there cannot be two sets of service conditions in an establishment and, therefore, the employees even in the retail cloth shop ought to be retired at the age of 63 years if found efficient, cannot be accepted. The retail cloth shop of employees and the employees in the mill have two different sets of conditions of service. The mill workers are governed by the standing orders framed under the Bombay Industrial Relations Act. The retail cloth shop employees admittedly in view of the judgment of this Court are covered by the Bombay Industrial Relations Act and the standing orders framed thereunder. Therefore, to submit that the same set of service conditions are applicable is not correct. Whatever conditions of service have been laid down either in the contract of serive or due to practice, usage, custom will apply to the employees in the retail cloth shop. Had there been more than 50 workmen in the retail cloth shop, the provisions of the Industrial Employment (Standing Orders) Act would have been applicable in view of the provisions of section 38(B) of the Bombay Shops and Establishment Act. Admittedly, in the retail cloth shop, with which we are concerned, less than 50 workmen were employed and therefore, the model standing orders would not apply mutatis and mutandis to the retail cloth shop employees as section 38(B) would not then come into operation. Whether there was in fact a practice or usage or custom to adopt the provisions of the model standing orders is not apparent as there is no evidence to that effect on record. This is obviously because the Respondent proceeded on the premise that the Bombay Industrial Relations Act not being applicable, the standing orders framed thereunder would have no application and, therefore, the Petitioner would not be able to continue till the age of 63 years.

9. The contention of learned Advocate for the Petitioner is that although the two establishments that is the mill and the retail cloth shop are registered under the two different Acts, namely, the Bombay Industrial Relations Act and the Bombay Shops and Establishment Act respectively, same benefits would be available to the retail cloth shop workers as are available to those working in the mill. This submission cannot be accepted. As stated above, there are two different establishments and two sets of service conditions applicable to the workmen working in those establishments. The question of parity of the benefits available to the workmen in two different establishments does not arise. It is not the case of the Petitioner that there was favouritism shown by the employer in case of workmen employed in the retail cloth itself. Once it is held that there are two sets of service conditions it can not be gainsaid that the benefits available to the mill workers need not be available to retail cloth shop. Therefore, the submission of Mr. Deshpande for the Petitioner cannot be countenanced.

10. As regards limitation, in my view, the cause of action would arise immediately on the receipt of the retirement memo dated 26.11.1989 and not on the date of retirement itself. The employee knew the facts that his services were to be terminated in 1990 and, therefore, the limitation prescribed under the Act would run from November 1989 itself. In this view of the matter, the Industrial Court has rightly concluded that the complaint is barred by limitation.

11. Rule discharged with no order as to costs.

12. Writ Petition is disposed of accordingly.

Petition dismissed.