K. Rama Rao Vs. Chief Executive, Nellimarla Jute Mills and ors. - Court Judgment

Excerpt:
labour and industrial - termination - sections 2a, 2a (1) and 2a (2) of industrial disputes act, 1947 and andhra pradesh (amendment) act, 1987 - petition filed under section 2-a (2) for challenging order of termination - lower tribunal dismissed the same on ground that section 2-a (2) came into force after termination of petitioner - as said section was prospective termination cannot be challenged under same - court observed that there is nothing section 2-a (2) which shows that any order issued prior to date on section 2-a (2) came into force cannot be challenged under same - accordingly order of termination in present case can be challenged - petition allowed and matter remitted back to lower tribunal for disposal. - orderneeladri rao, j.1. the writ petitioner herein filed a petition under section 2-a(2) of the industrial disputes act (for short 'i.d. act') challenging the order of termination on november 30, 1980. the lower tribunal, that is, r-3 herein dismissed the said application by holding that section 2-a(2) which had come into effect from july 27, 1987 is prospective and it cannot be invoked for challenging the order of dismissal, removal or discharge which was passed prior to july 27, 1987. the correctness of the said view is challenged in this writ petition.2. section 2-a(2) of the i.d. act was incorporated by the andhra pradesh amendment act 34/87. it is evident from section 2-a(2) of the i.d. act that workman who was dismissed, removed or discharged from service can challenge the same by filing an application under section 2-a(2) before the concerned labour court and it need not be referred to under section 10 of the i.d. act. there is no period of limitation for challenging the order of dismissal, removal or discharge, under i.d. act. it is neither expressly stated nor it can be stated by implication that section 2-a(2) of the i.d. act cannot be invoked to challenge the order of dismissal etc., which was issued prior to july 27, 1987. the lower court relied upon the decision in union of india v. tulasiram patel reported in (1985-ii-llj-206) and mm. wagh v. state of maharashtra reported in 1991-lln 764, in support of its finding that section 2-a(2) of the i.d. act is not applicable to challenge the order of dismissal etc., that was passed prior to july 27, 1987. the latter judgment is a judgment of the bombay high court. it merely refers to the scope of section 34(1) of the i.d. act. it is not helpful in considering as to whether an application under section 2-a(2) of the i.d. act can be filed to challenge the order of dismissal etc., of the date prior to july 27, 1987. the judgment of the supreme court (1985-ii-llj-206) does not throw any light for considering this aspect.3. as admittedly there is no period of limitation for challenging the order of dismissal etc., before the forum constituted under i.d. act, and by incorporation of section 2-a(2), the workman is given a right to directly approach the labour court to ventilate his grievance in case of dismissal, removal or discharge instead of moving the state government for reference, and as there are no express words in section 2-a(2) nor it can be construed by implication that section 2-a(2) cannot be invoked in regard to the order of dismissal etc., which was passed prior to the date of incorporation of section 2-a(2), it has to be held that it can be invoked to challenge even the order of dismissal etc., of the date earlier to july 27, 1987, the date on which andhra pradesh act 34/87 had come into effect. the delay in challenging the order of termination can be taken into consideration for moulding the relief if the court finds that the order of termination is illegal, that is, it can disallow back wages from the date of alleged termination till the date of filing of the petition. hence, the impugned order of r-3 has to be held as illegal and the same has to be set aside. the matter is remanded back to the lower court, that is, the labour court and industrial tribunal, visakha-patnam for restoring the i.d. and for disposing of the same in accordance with law. the writ petition is accordingly allowed. no costs.

Judgment:
ORDER

Neeladri Rao, J.

1. The writ petitioner herein filed a petition under Section 2-A(2) of the Industrial Disputes Act (for short 'I.D. Act') challenging the order of termination on November 30, 1980. The Lower Tribunal, that is, R-3 herein dismissed the said application by holding that Section 2-A(2) which had come into effect from July 27, 1987 is prospective and it cannot be invoked for challenging the order of dismissal, removal or discharge which was passed prior to July 27, 1987. The correctness of the said view is challenged in this writ petition.

2. Section 2-A(2) of the I.D. Act was incorporated by the Andhra Pradesh Amendment Act 34/87. It is evident from Section 2-A(2) of the I.D. Act that workman who was dismissed, removed or discharged from service can challenge the same by filing an application under Section 2-A(2) before the concerned Labour Court and it need not be referred to under Section 10 of the I.D. Act. There is no period of limitation for challenging the order of dismissal, removal or discharge, under I.D. Act. It is neither expressly stated nor it can be stated by implication that Section 2-A(2) of the I.D. Act cannot be invoked to challenge the order of dismissal etc., which was issued prior to July 27, 1987. The Lower Court relied upon the decision in Union of India v. Tulasiram Patel reported in (1985-II-LLJ-206) and MM. Wagh v. State of Maharashtra reported in 1991-LLN 764, in support of its finding that Section 2-A(2) of the I.D. Act is not applicable to challenge the order of dismissal etc., that was passed prior to July 27, 1987. The latter judgment is a judgment of the Bombay High Court. It merely refers to the scope of Section 34(1) of the I.D. Act. It is not helpful in considering as to whether an application under Section 2-A(2) of the I.D. Act can be filed to challenge the order of dismissal etc., of the date prior to July 27, 1987. The Judgment of the Supreme Court (1985-II-LLJ-206) does not throw any light for considering this aspect.

3. As admittedly there is no period of limitation for challenging the order of dismissal etc., before the forum constituted under I.D. Act, and by incorporation of Section 2-A(2), the workman is given a right to directly approach the Labour Court to ventilate his grievance in case of dismissal, removal or discharge instead of moving the State Government for reference, and as there are no express words in Section 2-A(2) nor it can be construed by implication that Section 2-A(2) cannot be invoked in regard to the order of dismissal etc., which was passed prior to the date of incorporation of Section 2-A(2), it has to be held that it can be invoked to challenge even the order of dismissal etc., of the date earlier to July 27, 1987, the date on which Andhra Pradesh Act 34/87 had come into effect. The delay in challenging the order of termination can be taken into consideration for moulding the relief if the Court finds that the order of termination is illegal, that is, it can disallow back wages from the date of alleged termination till the date of filing of the petition. Hence, the impugned order of R-3 has to be held as illegal and the same has to be set aside. The matter is remanded back to the lower Court, that is, the Labour Court and Industrial Tribunal, Visakha-patnam for restoring the I.D. and for disposing of the same in accordance with law. The writ petition is accordingly allowed. No costs.