Judgment:
ORDER
R.J. Kochar. J.
1. The basic and salient feature of the Bombay Industrial Relations Act. 1946 is prompt action within the prescribed period by any party who is either affected by any change effected by the other side or any change desired from the opposite party. There is the law of limitation inbuilt in this enactment which governs equally both, the employer and the employees and also 'the representative of employees'. This piece of legislation does not approve of delay or laches in any action, nor does it encourage stale and belated legal action in the Court of law. Wherever desired the Legislature has prescribed for condonation of delay by specific provisions. It is crystal clear from the reading of the whole enactment which is a self contained complete code of Industrial Relations that thereis hardly any scope for judicial legislation in the guise of interpretation of the statute unless the clear language is violated.
2. The Petitioner, a state owned sick corporation under the B.I.F.R., is seriously aggrieved by the decision of the Labour Court directing reinstatement of the Respondent employee with full back wages and continuity of service and the order of the Industrial Court confirming In appeal under Section 84 of the Act the aforesaid decision of the Labour Court. The following admitted and undisputed facts would reveal the entire conspectus of the case of the employee from his application and evidence :
18.1.1982 - General indefinite strike in the Cotton Textile Industry including the Petitioner's Mills.
12.2.1982 - The strike was declared illegal by the Labour Court under the B.I.R. Act.
April, 1982 - Some employees started reporting for work.
Oct. 1982 - In response to the appeal by the Hob'ble Shri Vasantdada Patil, the Chief Minister, more employees started reporting for work and were taken in employment.
9.12.1985 - Letter of Approach sent by the employee under Section 42(4) of the Act.
15.1.1986 - Application under Section 79 read with Section 78 of the Act filed.
According to the employee he reported on the following days/dates but he was not allowed to join :
23.1.1982 - Reported but not taken back.
April, 1982 - Some workers reported and were taken back that but the Respondent employee was not taken back.
Oct., 1982 - Some more employees were taken back but the Respondent was not taken back deliberately.
According to the employee, he was not aware of the cut-off date 31.5.1983 on the basis of an understanding between the Representative Union and the Mill Owners Association that those who would report for work by that date would be employed. He did not know about the innumerable notices and press notices calling upon the striking workers to report for work. His whole case before the Labour Court was that he was reporting for work but he alone was not allowed to join, deliberately. The Petitioner's case in the Written Statement was that the Respondent employee never reported for duty and never responded to the Appeal of the Chief Minister and also before the cut-off date 31.5.1983. The Petitioner had not served on him any notice of termination. The letter of approach dated 9.12.1985 was barred by limitation prescribed under the Act, and hence they prayed for dismissal of the application as not maintainable being in contravention of the mandatory provisions of the Act. The Labour Court framed the following issues and answered them as below against the Petitioners :
1. Does the applicant prove that his services were illegally terminated in October, 1982 ?
2. Does the applicant prove that he has served the opponent with a Valid approach notice?
3. Does the Opponent prove that the services of the applicant were validly and legally terminated on 31-5.83 as he committed misconduct?
4. Does the applicant prove that he is entitled to declaration?
5. Does he prove that he is entitled to reinstatement and back wages?
3. The Labour Court has accepted the contention of the Respondent employee that after some days after the general strike from 18.1.1982 he was reporting for work at the gate of the Mill and was meeting the watchman, who was telling the employee every time to come after some time and that he continued to report for work till the approach letter was sent by him on 9.12.1985. It further appears that the Labour Court accepted the contention of the employee that he had met one Labour Officer Shri Khan and the Department In-charge Shri Raje. who told him that he would be taken back when the Mills would start functioning. The employee feigned ignorance about the understanding between the R.M.M. Sangh. the Representative Union, and the Mill Owners Association that those who would report for work by 31.5.1983 would be allowed to join their employment. It is significant to note that admittedly the Respondent employee was a member of the said R.M.M.S. It is further reflected from the reasoning of the Labour Court that such understanding was not binding on the Respondent employee. The Labour Court has further held that the approach letter dated 9.12.1985 was a valid letter of approach under Section 42(4) of the Act read with Rule 53. According to the Labour Court, since the Respondent employee was reporting for work till 9.12.1985 and since he was not taken back, his cause of action was of recurring nature and, therefore, the approach letter was not barred by limitation. The Labour Court has positively held that the relationship of employer-employee subsisted and, therefore, the approach notice served on the petitioners was a valid letter of approach. The Labour Court has finally held that the Petitioners had failed to prove that the Respondent employee was legally and validly terminated from employment and he granted the relief of reinstatement with full back wages and continuity of service w.e.f. 28.11.1985. This order of the Labour Court was confirmed by the Learned Member of the Industrial Court in Appeal under Section 84 of the Act. The Industrial Court has tried to discuss the evidence of the Petitioners and also the employee. One fact has surfaced in the order of the Industrial Court that the Printing Department wherein the Respondent employee was employed was closed in 1992.
4. I have carefully gone through the entire proceedings. It is very pertinent to note that the findings of the Labour Court are self-contradictory and unsustainable in law. While answering the Issue No. 1 the Labour Court has categorically held that the services of the Respondent employee were illegally terminated in October. 1982. If that is so I fail to understand how the letter of approach dated 9.12.1985 could be held to be legal and valid letter of approach under Section 42(4) of the Act read with Rule 53 as these provisions required the approach letter to be sent within the prescribed period of three months from the date of such order. On the face of the established facts and conclusions which are recorded by the Labour Court, by no stretch of Imagination it can be said that the letter of approach dated 9.12.1985 challenging the order of termination in October, 1982 can be held to be a legal and valid approach. In my opinion the mandatory provisions of Section 42(4) of the Act have been clearly violated by the Respondent employee and, therefore,his application cannot be held to be maintainable at all and the same deserved to be dismissed.
5. While answering the Issue No. 2 in respect of legality and validity of the letter of approach the learned Labour Judge held that the employer employee relationship continued and subsisted and that the Respondent employee was forcibly kept out of employment and that as there was continuous cause of action the letter of approach dated 9.12.1985 was legal and valid. He has already held that the Respondent employee was illegally terminated in October. 1982. But on the basis of alleged subsistence of employer-employee relationship it is observed by the Labour Court that the Petitioners should have allowed the Respondent to join his work. It is unfortunate that the Appeal Court has also not applied its mind to the pleadings and evidence and also to the impugned judgment and order of the Labour Court. 1 would have remanded the matter back to the Trial Court for fresh consideration of the application but it would be not in the interest of justice to do so to allow the parties to have the litigation continued in the second round particularly when the Petitioner company is a Sick Industrial Company and the Respondent employee has also been suffering from 1982 at the hands of the unrecognised union, which have brought the textile workers in the street and left them in lurch after their disaster. The employees including the present respondent are also to be blamed when the deserted the representative union which tried its level best to protect their interest and gave an opportunity to them to save their employments by 31.5.1983. If I were to remand the matter to the Labour Court the journey of the litigation would again take another span of very long period which might be unbearable for the Respondent employee.
6. The crucial question which requires a solid reply is whether the letter of approach dated 9.12.1985 was a legal and valid approach under the provisions of the Act i.e. Section 42(4) of the Act read with Rule 53. which are reproduced hereinbelow :-
Sec. 42(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 make an application to the Labour Court [and as respect 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. (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 III 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 itmay 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.
7. If we go by the findings recorded by the Labour Court that the Respondent employee was illegally terminated in October, 1982 no wisdom and logic of even one milligram is required to conclude that a letter of approach dated 9.12.1985 was beyond the prescribed period of three months from the date of (even month of October. 1982). Order of termination becomes illegal and improper if it is in contravention of the Standing Orders. If the Respondent employee desired to challenge the said illegal order of termination which took place in October. 1982 as per the findings of the Labour Court, it was mandatory for the Respondent employee to have sent his letter of approach within three months from the date of his termination and thereafter within three months he ought to have filed the present application before the Labour Court.
8. In the aforesaid proved facts and the findings recorded by the Labour Court the above relevant provisions stare in my face to say how the said approach letter could be held as legal and valid According to me, on this ground alone the application filed by the Respondent employee under Section 79 read with Sections 78 and 42(4) of the Act must fail. Both the Labour Court and the Industrial Court have not applied their mind and have recorded a totally perverse and untenable findings which deserve to be quashed and set aside forthwith and the same are quashed and set aside by me in exercise of my Jurisdiction under Article 226 of the Constitution of India.
9. Even considering the matter from another angle it is not possible for me to agree with the findings recorded by the Labour Court and the Industrial Court. I have mentioned earlier the chronology of the events given by the Respondent employee himself in his application and in his oral evidence and from it, it is very clear that he was in the know of the events which were taking place during the Textile Strike. He knew that the strike was declared illegal by the Labour Court on 12.2.1982 but still he did not report for work and if he had reported and if he was not allowed to join his duties he did not choose to write a letter to the Petitioners that he was not allowed to join his duties. This was the first point of time when he ought to have placed his grievance on record that he was not allowed to join his duties though he had reported for work. Secondly according to the employee himself some employees had reported for work and that they were allowed to join their work. Knowing this fact even at that time neither he appears to have reported for work nor did he write a letter to the Petitioners in case he was not allowed to join his duties. Third point of time was October, 1982 when in response to the appeal by the then Hon'ble Chief Minister Shri Vasantdada Patil a large number of employees had reported for work and they were employed. According to the Respond ent employee, he had reported for work and that he was not allowed to join deliberately. There is no reason if a large number of employees were allowed to join their work/duties why only the Respondent employee was not taken back. I am therefore not prepared to believe the story of theRespondent employee that he had reported for duly in the month of October, 1982 and that he was Singled out from not joining the duties.
10. This was the next point of time i.e., October, 1982 when he could have and he ought to have sent a letter of approach if he was not employed by the Petitioners. It appears that the Labour Court had taken this point of time being the termination order. Assuming that there was no termination order in writing but according to the Respondent employee himself he was not taken back in employment by the Petitioners. At this point of time he could have approached the Petitioners in respect of the industrial matter of his non employment as contemplated under Item 6 of Schedule 111 of the Act. Since there is no specific date given by the Respondent employee at least by the end of January, 1983. he ought to have sent the letter of approach but he did not do so. On all the aforesaid occasions there was a case of refusal to employ the Respondent employee which resulted in his non-employment and this grievance is squarely covered by the Industrial matter of employment under Item 6 of Schedule III of the Act. It was obligatory for him to have acted in accordance with Section 42(4) of the Act read with Rule 53 but he failed to do so. Construing the law in the context of the peculiar facts even with most liberal manner the last point of time to count the limitation was from October. 1982 and according to the Labour Court also the services of the Respondent employee were terminated in the month of October, 1982. In either case we cannot travel any further to condone the delay in making the approach letter for employment as contemplated by Item 6 of Schedule HI of the Act. The Labour Court had no business to hold that though the Respondent employee was terminated from the employment in the month of October 1982 still he continued to be in employment and that the cause of action was of recurring nature and that his approach letter dated 9.12.1985 was within the prescribed limitation holding his letter of approach as legal and valid and the application maintainable. This finding and conclusion of the Labour Court is totally misconceived and perverse. In my opinion even when an employee is orally told by the Watchman at gate that he will not be allowed to join his duties it is obligatory for the employee to send a letter of approach challenging the act of the Watchman on behalf the employer at the gate not allowing the employee to enter the Mills to join his duties. Such an employee has to act in accordance with the provisions of the Act within the prescribed period of limitation and challenging 'the change' of non employment brought about by the employer illegally and to desire a change of employment or reinstatement and all other consequential benefits under Sections 79 read with Section 78(1)(A)(a) and (iii) read with Item 6 of Schedule III of the Act. The act does not contemplate a situation that as and when employee is not employed by the employer for one or the other reason the employee should merely continue to come to the gate and go away. Such an employee must challenge the act of his non employment and desire employment within the prescribed period of limitation of three months from the date on which he was 'non employed'. He cannot continue indefinitely for years together to come at the gate of the work place and go away without any legal action. Neither the law expects this to happen nor the law helps those who sleep over their rights. It cannot be said that merely because an employee keeps on reportingfor work at the gate his cause of action becomes of recurring nature and that he can wake up. say after ten years, and send a letter of approach and file an application for reinstatement with full back wages and continuity of service. To entertain such applications by saying that the employee was reporting for work daily for years together he had kept his dispute alive for the indefinite period to enable him to claim the relief of reinstatement and back wages. This Act has specifically provided limitation for every action, as I have already stated hereinabove. If the parties do not act within the prescribed period the other party takes it that there was no challenge to its action and that it was acceptable to the other side and on that basis it decides and organises its subsequent activities. If the employee does not challenge in accordance with law the action of the employer within the prescribed period of limitation the employer decides and organises his business accordingly. He may fill up the post which became vacant by dismissal or termination of his employee. In these circumstances it would cause tremendous prejudice and hardship to the employer if after the lapse of years together the employee seeks to come back by making approach letter and then application for reinstatement and back wages. The Act does not permit any party to cross the boundaries of limitation and wherever possible and desirable the legislature has vested in the Courts discretion to condone the delay for sufficient reasons shown by the party.
11. Mrs. Mhatre the learned counsel for the Respondent employee has relied on the following judgments in support of her case :
1. Changunbai Chanoo Palkar v. Khatau. Makanji Mills & Anr.
2. Jayawant Yaswant Rout v. Simplex Mills Ltd. & Ors.
3. Morarjee Gokuldas Spinning & Weaving Co. Ltd.. v. Mantti Yeshwant Narvekar & Ors.
Shri More the learned counsel for the petitioners, has cited the following judgments :
1. Oriental Textile Finishing Mills, Amritsar v. Labour Court. Jullundur & Ors.
2. National Textile Corporation, (South Maharashtra) Ltd. v. P. Gama (Mrs.) & Ors.
12. In the peculiar facts and circumstances of this case it is not necessary for me to discuss the aforesaid rulings. In the present case the Labour Court has held that the employee was terminated in October, 1982 and he had sent a letter of approach on 9.12.1985. From these facts it is crystal clear and beyond any manner of doubt that the letter of approach was barred by limitation. The Labour Court had erroneously considered that the Respondent employee continued to be the employee of the Petitioner Company and that the employer employee relationshipcontinued and. therefore, the cause of action was of recurring nature. Having held that the respondent employee was terminated illegally in October,1982 the Labour Court committed a grave error of law in holding that the employee continued to be an employee of the Petitioners Company. The Industrial Court has also committed a grave error of law in confirming such a perverse order of the Labour Court. These facts were not present in any of the judgments cited by the learned counsel for the respondent employee and. therefore, they have no application in the present case. On the contrary 1 am supported by the Judgment of the learned Single Judge of this Court [Dr. Saraf, J.], who has held that if there was refusal to give work it can be treated as a case of termination and the limitation prescribed under Section 42(4) of the Act read with Rule 53 would come into play, NTC v. P. Gama, supra. The learned Judge has succinctly analysed the provisions of the law in the following two paragraphs, which read as:
'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 cause 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 term'nation. etc. as observed earlier, it will not fall in any of the clauses or sub-clauses of Section 78(1) anc the Labour Court will have no jurisdiction to decide any dispute in relation the reto. 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 orillegality of such order passed by an employer purporting to act under the Standing Orders. 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 arc 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 disputes 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. That aspect is left open to be examined in a proper case as and when occasion arises.'
Facts of the case before the learned Single Judge were more or less similar to the facts of our case and therefore, 1 am bound by the ratio of this Judgment.
13. Though I have held that the application filed by the Respondent employee was not maintainable in view of the violation of Section 42(4] of the Act read with Rule 53 and though I have held that the application filed by the Respondent employee deserve to be dismissed it will not be in the interest of justice to throw the employee out of employment at this stage. He was reinstated by the Petitioner Company when the employee filed a contempt petition for disobedience of the orders of reinstatement with full back wages and continuity of service. There is no dispute that the respondent employee has been reinstated and has been paid 50% back wages. 1 do not wish to disturb the present position of employment of the respondent employee. I also do not wish to order payment of 50% back wages in addition to the already paid 50% back wages to the employee. The Printing Department in which the respondent employee was employed was admittedly closed in 1992. In view of the Courts orders the Petitioners have employed the respondent employee in some other department. In view of the Inordinate delay on the part of the employee and in view of the financial sickness of the Petitioner Company it will not be proper for me to burden the Petitioner Company any more than what it has spent to the tune of 50% back wages.
14. Rule is made absolute as above. No order as to costs. Certified copy is expedited.