JUDGMENT
D.Y. Chandrachud, J.
1. The petitioner was employed in the erstwhile Kohinoor Mills in 1956 as a machinist in the Bleaching Department and was assigned Ticket No. 42. The Kohinoor Mills were taken over and acquired by the Central Government and came to be vested in the first respondent. A general strike took place in the Textile Industry with effect from 18th January, 1982. In the application which has been filed by the petitioner before the Third Labour Court at Mumbai under Section 79 of the Bombay Industrial Relations Act, 1946, it has been stated that as soon as the tension of the strike eased and gradually the workmen started reporting for work, the petitioner also reported for duty at the gate of the first respondent every day. The grievance of the petitioner is that the first respondent in collusion with the Rashtriya Mill Mazdoor Sangh which was a recognised Union, took back only those workers who according to the Sangh were considered to be fit and proper regardless of merit, experience and seniority. According to the petitioner, he was informed by the security staff at the gate of the first respondent as well as by the Supervisory staff of the first respondent that his name would appear on the Notice Board which will be affixed at the Gate of the first respondent. In para 4 of the application, it was specifically pleaded that despite several representations made to the first respondent, inter alia, by organizations in support of the workers such as the petitioner, the first respondent had not allowed several workers to resume their duties, including the petitioner. The grievance of the petitioner, therefore, was that though his services had never been terminated at any stage and the contract of employment continued to subsist, he had been prevented from reporting back for work by the first respondent. This slate of affairs, it was alleged, had continued even after the take over of the erstwhile Kohinoor Mills by the first respondent in October 1983 under the Textile Undertakings Taking Over of Management Act, 1983. The petitioner submitted an approach letter under Section 42(4) of the Bombay Industrial Relations Act, 1946 to the first respondent on 7th January 1993 and this not having resulted in a resolution of his claim, filed an application before the Labour Court on 20th March, 1993. The reliefs which the petitioner sought were that he be allowed to resume his duties with the first respondent and that the petitioner be granted full backwages and other consequential benefits on and from 18th January, 1982.
2. The first respondent in its written statement contended that the approach letter which was addressed by the petitioner on 7th January 1993 was not tenable having regard to the fact that he must be regarded as having ceased to be in service of the first respondent on 31st May 1983. Moreover, even assuming that he had continued in service of the erstwhile Textile Company after the said date, it was contended that the petitioner must be regarded as having ceased to be in service on the first date on which he was refused employment. According to the
first respondent, there was an understanding reached between the representative Union and the Mill Owners’ Association to the effect that such of the employees on strike, who did not report on or before 31st May 1983 would not be absorbed thereafter. The first respondent has submitted that after the erstwhile Textile Mill was taken over by the Central Government on 18th October 1983, the first respondent commenced working on 17th October, 1984 The petitioner had not . reported for duty and since he had continued to stay away from work, he must be treated as having abandoned service and was not entitled to any relief.
3. Evidence was adduced before the Labour Court. In its order dated 24th October 1995, the Labour Court noted that the petitioner had deposed in the course of evidence that he had not been allowed to enter into the premises of the Mil! by the Watchmen on the ground that the strike was going on. In the circumstances, according to the judgment of the Labour Court, the cause of action arose sometime in 1983 or 1984 and the approach notice which was sent in January 1993 was not tenable. On the merits of the claim, the Labour Court was of the view that the action on the part of the first respondent amounted to an illegal termination of the service of the petitioner without following due process of law. In fact, the Labour Court noted that no order of termination had been produced or was proved on behalf of the first respondent. However, having regard to the finding that the approach notice was not within the time limit as prescribed by the Act and the rules framed thereunder, the petitioner was held to be disentitled to relief. The order of the Labour Court was sustained in revision by the Industrial Court on 2nd December 1997. The Industrial Court noted that a general strike was declared in the Cotton Textile Industry in 1982 and the Kohinoor Mill was taken over by the first respondent on 18th October, 1983. The Textile Mill had given a call to the workers to resume duty on 31st May, 1983 and there was no specific oral evidence to the effect that the petitioner had been denied an opportunity of resuming his duties even after publication of the notice in the newspapers. In these circumstances, the Industrial Court came to the conclusion that the Labour Court was justified in declining to grant backwages to the petitioner even upon the finding that the termination was illegal.
4. The question as to whether the application which had been filed by the petitioner was beyond the period of limitation would depend upon the construction to be placed on the provisions of Sections 42(4), 78 and 79(3) of the Bombay Industrial Relations Act, 1946 together with the provisions of Schedule III to the Act:
(i) Under Sub-section (4) of Section 42, an employee or a representative Union desiring a change in respect of, inter alia, an industrial matter specified in Schedule III, except Item (5) thereof is required to make an application to the Labour Court and as respects a change desired in any industrial matter specified in Item (5) of Schedule III to the Industrial Court. The proviso lays down that no such application shall lie unless the employee or the representative Union has 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 provides that 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 3 months of the date of such order. The employer and employee may thereupon arrive at an agreement within 15 days or such further period as mutually agreed or as extended by the Labour Officer.
(ii) Section 78 defines the powers of the Labour Court. Section 78(1)A of the Act provides as follows :
“78. Powers of Labour Court. — (1) A Labour Court shall have power
to –
A. decide –
(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;”
Section 78(1)A provides that a Labour Court shall have the power to decide disputes regarding (i) the propriety or legality of an order passed by the employer acting or purporting to act under the Standing Orders; (ii) the application and interpretation of Standing Orders; and (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. The expression “change”, it must be noted, is defined by Clause (8) of Section 3 to mean an alteration in an industrial matter. “Industrial matter” in turn is defined by Clause (18) of Section 3 to mean any matter relating to employment, work, wages, hours of work, privileges, rights or dudes of employers or employees, or the mode, terms and conditions of employment and includes inter alia all the matters pertaining to the relationship between employers or employees or to the dismissal or non-employment of any person. Item 6 of Schedule III of the Act is entitled “employment” and includes in Clause (i) thereto “reinstatement and recruitment”.
5. In the present case, it is an admitted position that no order was passed by the employer terminating the services of the petitioner. Therefore, necessarily, there was no order passed by the employer acting or purporting to act under the Standing Orders. Consequently, the dispute which arose in the present case would clearly not be the one within the meaning of Section 78(l)A(a) (i) of the Bombay Industrial Relations Act, 1946. Disputes referred to in Clause (i) above would be those relating to the propriety or legality of an order passed by the employer acting or purporting to act under the Standing Orders. There “has to be, therefore, not merely an order passed by the employer but, one by which the employer has acted or has purported to act under the Standing Orders. Such was not the case here. The present case clearly relates to a dispute under Section 78(l)A(a)(iii) of the Act. As already noted earlier, Item 6 of Schedule III is entitled “employment including (i) reinstatement and recruitment”. The present
case clearly related to a change made by the employer or desired by the employee in respect of an industrial matter set out in Item 6 of Schedule III. As already noted earlier, an industrial matter means any matter relating to employment and includes all matters pertaining to the relationship between employers and employees or to the non-employment of any person. Having regard to the width of the definition of the expression “industrial matter” in Clause (18) of Section 3 and to the provisions of Clause (iii) of Section 78(l)A(a), I am of the view that the present case clearly fell within the scope of Clause (iii).
6. This would have a bearing on the question as to whether the complaint which was preferred on behalf of the first respondent was barred by limitation. The period of limitation is prescribed by Sub-section (3) of Section 79 of the Act which provides as follows:
“79(3). An application in respect of a dispute falling under Clause (a)’of paragraph A of Sub-section (1) of Section 78 shall be made –
(a) if it is a dispute falling under Sub-clause (i) or (ii) of the said clause, within three months of the arising of the dispute; (b) if it is a dispute falling under Sub-clause (iii) of the said clause within three months of the employee concerned having last approached the employer under the proviso to Sub-section (4) of Section 42: Provided that, the Labour Court may, for sufficient reasons, admit any application in respect of any dispute made to it under this Sub-section after the expiry of the period of three months specified thereof under sub-Clause (a) or (b), as the case may be."
In the case of an application falling under Clause (a) of para A of Sub-section (1) of Section 78, two different periods of limitation are provided for. A dispute which falls under Sub-clause (i) or sub Clause (ii) of Clause (a) of paragraph A of Sub-section (1) of Section 78 of the Act has to be instituted within a period of 3 months of the arising of the dispute. On the other hand, if it is a dispute falling under Sub-clause (iii), then ii is required to be instituted within 3 months of the employee concerned having last approached the employer under the proviso to Sub-section (4) of Section 42 of the Act. Having regard to the facts of the present case, I am of the view that the dispute falls within the scope of Section 79(3)(b) of the Act. This has to be so since it is one within the meaning of Section 78(l)A(a)(iii), Under the circumstances, the dispute was liable to be instituted within three months of the employee concerned having last approached the employer. An approach notice was issued on 7th January 1993 and the application before the Labour Court came to be filed on 20th March 1993. The application was, therefore, filed within the period of limitaiion.
7. In taking this view, I am fortified by the judgment of a Learned Single Judge of this Court, Mr. Justice B.N. Srikrishna in Jayavant Yashwant Rant v. Simplex Mills, Ltd. reported in 1995 II CLR 641. In that case also, in similar facts, a workman of the Textile Mill who had attempted to report for work in 1982 was prevented from reporting for work. The approach letter was sent on 31st May 1984. The Labour Court held that the workman had been dismissed from service by an order dated 26th September 1982 and, therefore, the approach letter sent on 31st May 1984 was not within the period of limitation prescribed
under Rule 53(2) of the Bombay Industrial Relations Rules, 1947. The Industrial Court in appeal held that the evidence did not show that the alleged letter of termination had at all been served on the workman. However, the Court held that the workman had not been permitted entry in the Mill when he reported for work in March and April 1983. According to the Industrial Court, that furnished a cause of action, and the workman should have sent an approach letter within a period of 3 months from that date. The complaint was accordingly dismissed as having been barred by limitation. This Court speaking through Mr. Justice B. N. SriSkrishna held that the approach of both the Courts below was hyper-technical and at the cost of substantive justice. This Court held that once the Industrial Court had come to the conclusion that there was no order of termination of service served on the workman, the dispute which had been sought to be raised by the employer could not be categorised as one under Section 78(l)A(a)(i) of the Act. The Learned Single Judge set aside the order of the Industrial Court, and granted reinstatement in service with backwages. While considering the provisions of Clause (i) of Section 78(l)A(a), the learned Single Judge held thus :
“In order that a dispute falls under this provision, it must first be shown that there is an order passed by the employer and that the order is either in fact passed under the applicable standing orders or, at least purported to have been passed under the Standing Orders by the employer. In the petitioner’s case as the findings of the Industrial Court show, there was no order which has been communicated. As far as the petitioner was concerned, he was merely being orally refused work, right from December 1982, without any one even having disclosed to him the reason for such refusal or his contract ‘of employment having been terminated. If in these circumstances, the employee makes a request that he be taken on work and kept in employment, I am unable to accept the view of the Industrial Court that such a dispute must necessarily, be held to be a dispute within the meaning of Section 78(l)A(a)(i) so as to attract the rigour of the limitation prescribed under Rule 53(2) of the Bombay Industrial Relations Rules. In my view, the ends of justice would have been much better served if a liberal construction had been adopted by holding that the dispute was one which fell properly within Clause (Hi) of sub-paragraph (a) paragraph A of Sub-section (1) of Section 78. In my view since there was neither an order of termination of service, nor any declaration of the reasons for which work was not being given to the petitioner, the petitioner was justified in making an approach even on 31st May 1984 and seeking the relief of being kept back on work and in employment. A dispute of such nature, in my view would be a change sought by the employee in respect of Item 6 of Schedule HI of the Act which would properly fall within Clause (in) of Section 78(l)A(a). Once we come to the conclusion, it is obvious that the approach letter dated 31st May, 1984 would not be hit by the limitation prescribed in Rule 32(2) of the Bombay Industrial Relations Rules, 1947, and, therefore, would be valid approach. Consequently, the application based thereupon would be maintainable.”
8. A reference may also be made to the judgment of a Division Bench of this Court in Changunabai Channo Palkar v. Khatau Makanji Mills Ltd, reported in 1992(2) Mh.L.J. 1641 = 1992 Lab I.C. 138. In the case which came to be decided by the Division Bench also, the petitioner before the Court was a workman in a Textile Mill who claimed to have reported for duties after the Textile strike was over, but, was not allowed to resume. The workman there also was neither chargesheeted, nor was any departmental enquiry held. The workman addressed a letter dated 30th October, 1984 to the Textile Mill and there being no response, moved an application under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946. The employer had contended that the workman had not reported for work despite notices published in the newspapers and that this amounted to misconduct. The employer also contended that it was not possible to hold a disciplinary enquiry and that the workman was dismissed from service on 22nd December, 1982. The Labour Court came to the conclusion that the order of dismissal was served on the workman and the approach letter was not sent within three months thereof. The application under Sections 78 and 79 was hence held to be not maintainable. The Industrial Court differed with the view taken by the Labour Court and came to the conclusion that there was no proof that the order of dismissal had been served and consequently, the application under Sections 78 and 79 could not be held to be barred by limitation. However, the Industrial Court came to the conclusion that the workman was entitled to reinstatement for a period upto 31st December 1985 though without any backwages. The Division Bench of this Court held that no chargesheet was ever served upon the workman, nor was any enquiry held before the workman was dismissed. No dismissal order was served on the workman. In the circumstances, the action taken by the employer was held to be illegal, rendering the order of dismissal void ab initio. The Division Bench held that no case was proved against the workman even during the course of the adjudication proceedings save and except that there was a passive participation in the strike that had taken place. The Division Bench held thus:
“The pertinent point to be borne in mind in disciplinary jurisdiction, when absence during an illegal strike is admitted or proved, is that the industrial jurisprudence makes a cardinal distinction and maintains a clear dichotomy between passive and active strikers. This is considered essential and of practical importance because the kind of quantum of punishment has to be modulated in accordance with the nature of participation in the strike. The real question required to be determined in course of the disciplinary proceeding in such cases is : Did the individual worker, who has to suffer the penalty, actively involve himself or did he merely remain quiescent non-worker, during the explosive period? It must be remembered, for example, that not reporting for work and remaining at home for fear or vengeance in a para violent situation or, if the employment is in an urban township, leaving the place of work and returning to the native place in a rural area on account of economic compulsion and to avoid starvation in case of a prolonged strike, does not lead to an inevitable presumption of active participation in an illegal strike. More is needed to bring home the mens rea and that burden is on
the management. The strike being illegal is really a non-issue under such circumstances. The focus is on active participation. Mere absence, without more, does not compel the conclusion of active participation or involvement.”
“The relevant factors to be kept in view in order to determine the question posed above need recapitulation. The dismissal order was void ab inilio since no charge sheet was served and no inquiry preceded in accordance with law. The finding of misconduct, passive participation in the illegal strike came to be recorded, for the first time, in the course of industrial adjudication. The normal relief under such circumstances is reinstatement with full back wages since pre-dating of the award would have no legal sanction.
Reinstatement on setting aside of a termination which was void ab initio
was no compassionate gesture; it was a legitimate right- The claim for
backwages had a legal foundation; denial thereof must be based on
rational and realistic ground formulated on a consideration for the entire
set of circumstances. The denial thereof on the facts and in the
circumstances of the present case is not only unwarranted but would also
amount to putting a premium on the litigating activity of the employer”.
The Court held that the workman had reported for duty but, was not taken back
and while various other workers had been permitted to resume duties, the
workman in question had not evoked a response from the management. In the
circumstances, the Division Bench was of the view that denial of backwages was
not sustainable.
9. Reliance was sought to be placed on a judgment of a Learned Single Judge of this Court B. P. Saraf, J. (as he then was) in N.T. Corpn. Ltd. vs. P. Gama, 1996(1) Mh.LJ. 265 = 1995 (70) FLR 567. The workman in that case was an employee of the Kohinoor Mills which was taken over by the first respondent. The case of the workman was that in May 1984 when the N.T.C. allowed other workers to resume work, the workman in question was not provided with work. The employer contended that it was the workman who had not reported for work at any time. The Labour Court held that the workman had failed to prove that she had approached the Mill on 10th February 1984 but, was refused employment and that she was not given work on that date as alleged. The cause of action arose immediately upon the refusal of the employer to provide work and an application should have been filed within 3 months from the date of such refusal. The Industrial Court in appeal under Section 84 of the Act held that the application which had been filed was within time and even if it was beyond time, a case for the condonation of delay had been made out. An order of reinstatement together with 50% backwages was accordingly passed. In a writ petition filed by the N.T.C., the Learned Single Judge set aside the order of the Industrial Court. The Learned Single Judge held that according to the workman herself, she had approached the employer for work on 18th February 1984 but was refused work. Consequently the application filed almost one year and 4 months thereafter on 30th May 1985 was held to have been barred by limitation. I have considered the judgment of Dr. B.P. Saraf, J. It would appear that the judgment of the Division Bench of this Court in Changunabai Channo Palkar case (supra) was not placed
for the consideration of the Learned Single Judge. In a case such as the present
where admittedly no order of termination of service has been passed, and the
workman has never been dismissed from service, the judgment of Mr. Justice B.
N. Srikrishna in Jayavant Yaswant Raut (supra) reflects the correct position in
law. In the circumstances, the findings which have been arrived at by the Courts
below that the complaint is barred by limitation is erroneous and requires to be
quashed and set aside. In M.G. Spg. and Wvg. Co. Ltd. vs. M.Y. Narvekar, 2000-
l LLJ 1008, the judgment of B. P. Saraf, J. was cited in a similar case arising out
of the textile strike. A. P. Shah, J. while considering the said judgment held thus:
“In that case the learned Judge held that the three months time would
commence from the date of refusal of the employer to give work to the
employee, as the learned Judge felt that if it is not an order of termination
etc. and 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. It seems that the attention of the learned Judge
was not drawn to the Division Bench decision in the case of
Changunabai Channo Palkar (supra). It seems that the learned Judge
also failed to notice that such a dispute would fall under Clause (3) of
Section 78(l)A(a).”
The Learned Single Judge followed the decision of the Division Bench in Changunabai Channo Palkar case (supra) and the decision of B. N. Srikrishna, J. in the Jayawant Yashwant Raut case.
10. The judgment of a Learned Single Judge of this Court in National Textile Corporation (South Maharashtra) Ltd. v. Mohd Umar Mohd Hanif, 2001(4) Mh,L.J. 724 = 2001 II CLR 145 is of no assistance to the petitioner. Before the Learned Single Judge, the judgment of the Division Bench in Changutwbai’s case as well as the judgments in Jayawant Yashwant Raut and Morarjee Gokuldas Spinning and Weaving Co. Ltd were cited. The Learned Single Judge was of the view that in the peculiar facts and circumstances of the case, it was not necessary to refer to or discuss the aforesaid rulings. The decision of the Learned Single Judge thus turned upon the peculiar facts and circumstances of that case as is clear from what has been stated in para 12 of the judgment.
11. Insofar as the question of relief is concerned, Mr. Ganguli, the Learned Counsel appearing on behalf of the workman fairly stated that the approach notice had been made only on 7th January 1993 almost 10 years after the workman was refused work. The date of birth of the employee in the records of the Company is stated to be 1930. In the written statement filed before the Labour Court there is no dispute of this fact between the parties. The workman, therefore, attained the age of 60 years in 1990. Having regard to the delay on the part of the workman in submitting an approach notice, this would be a proper case where the workman should be denied backwages until 7th January, 1993 when the approach notice came to be filed for the first time. The Learned Counsel has also fairly not disputed this position. The age of retirement of the workmen of the first respondent is 60 years. Standing Order 20A provides insofar as it is material that an operative shall retire from service on attaining the age of 60 years, but a male operative shall be retained in service, if he continues to be efficient, upto the age of 63 years. The provision of Standing Order 20A has been
interpreted in a judgment of Mrs. Justice Sujata Manohar (as the Learned Judge then was) in M.S. Textile Corpn. Ltd. v. V.V. Joshi, 1990 MH.L.J. 293 = 1991 II LLJ 457. The Learned Judge held that under Standing Order 20A, the Textile Mill shall retain an operative in service until he attains the age of 63 if he continues to be efficient. There is no discretion left in the management to continue or not to continue a male operative after the age of 60, even if he is efficient. The Standing Order was not intended to give discretion if the workman is otherwise suitable. In the present case, the workman would attain the age of 63 sometime in 1993, the year in which the approach notice came to be sent to the employer. Having regard to the totality of the facts and circumstances of the present case, I am of the view that the workman should be granted compensation quantified at the wages that would be payable to him from 7th January 1993 until the date on which he would attain the age of 63 years. This is the only relief which has been pressed on behalf of the workman by the Learned Counsel appearing for him and I am of the view that the said request is fair and reasonable.
12. In these circumstances, the petition is allowed and the impugned order of the Industrial Court dated 24th November, 1997 is quashed and set aside. The first respondent shall pay to the workman the wages due and admissible in respect of the period between 7th January 1993 and the date on which the workman would attain the age of 63 years. This would be in addition to all the retirement dues which would be due and admissible to the workman. The Writ Petition is accordingly disposed of. No order as to costs.