JUDGMENT
H.K. Rathod, J.
1. Heard learned advocate Mr.K.G.Pandit on behalf of petitioner, learned advocate Mr.D.J.Bhatt appearing on behalf of respondent Nos.3 & 4. Respondent Nos.1 & 2 are deleted by the petitioner in the present petition. Petitioner has challenged the orders passed by the Labour Court and Industrial Court, Ahmedabad. The Labour Court, Ahmedabad has passed an order vide Exh.18 in complaint No.20 of 1985 dated 21st July 1990, wherein the complaint filed by the petitioner has been rejected on the ground that it is beyond time limit. Against that, Revision Application was filed by the petitioner being numbered 18 of 1990 before the Industrial Court and that Revision Application was filed under Section 85 of the Bombay Industrial Relation Act, 1946 and the said was rejected by the Industrial Court on 26th September 1991.
2. Learned advocate Mr.D.J.Bhatt having information has submitted that according to his information, Asarva Mills is closed. Learned advocate Mr.Pandit has submitted that the Labour Court and Industrial Court both have committed gross error in rejecting the applications submitted by the petitioner. He submitted that both the authorities have not applied the mind and not rightly appreciated the relevant legal provisions of the Bombay Industrial Relation Act, 1946 and provisions of Criminal Procedure Code. He submitted that not to allow the petitioner to resume the duty with effect from 3rd March 1984 that being a continued offence and therefore, complaint which was filed by the petitioner under Section 106/107 of the B.I.R. Act must have to be entertained by the Labour Court. He also submitted that there is no written order of termination passed by the employer and there is no closer by the Mills Company and in such circumstances, when petitioner being a permanent employee not allowed to resume the duty, it amounts to illegal change having continued effect and for that breach complaint has been filed by the petitioner for committing offence by the employer under Section 106/107 of B.I.R Act, 1946 and therefore, it was a continued offence, question of limitation does not arise. However, he also alternatively submitted that even in case of limitation will apply under Section 473 of the Criminal Procedure Code, a Labour Court have power to condone the delay in filing the complaint under Section 106 and 107 of the B.I.R. Act, 1946. Therefore, he submitted that both the authorities have committed gross error, not accepted the submissions made by the petitioner and a poor lady ultimately is a sufferer and not able to get job and no compensation from the employer. Therefore, he submitted that interference by this Court is necessary while exercising power under Article 227 of the Constitution of India. Learned advocate Mr.D.J.Bhatt supported the decision of both the authorities and submitted that both the authorities have rightly decided the matter with application of mind and cogent reasons in support of their conclusion have been given. Therefore, none of the authorities have committed any error which require any interference by this Court while exercising power under Article 227 of the Constitution of India.
3. Learned advocate Mr.Pandit has completely read over the entire two orders without missing a line from both the orders. Thereafter, he submitted that both the authorities have committed error. I have considered the submissions made by both the learned advocates. I have also perused both the orders and also I heard what has been read by Mr.Pandit about the complete two orders before this Court. I have also considered Sections 78/79 of the B.I.R. Act, 1946, Sections 106 and 107 of B.I.R. Act, 1946 and Sections 468 and 473 of the Criminal Procedure Code. The facts are in narrow compass. The petitioner became a permanent employee of the Mills Company in pursuance to a settlement arrived between the Mills Company and Majur Mahajan Shangh in application No.907 of 1979 dated 18th September 1981. The difficulty started on 3rd March 1984 when according to the petitioner, the respondent Mills has not allowed to the petitioner to resume the duties and therefore, committed a breach of settlement which amounts to offence under the provision of Section 106/107 of B.I.R. Act, 1946 and therefore, a complaint is filed by the petitioner under Section 78/79 before the Labour Court, Ahmedabad. Before the Labour Court, Ahmedabad, the petitioner was examined vide Exh.9, vide Exh.10 certain documents were produced by the petitioner, vide Exh.13 the oral evidence of the complainant was closed vide Exh.16 one Mr.Kantilal Maganlal was examined. Thereafter, the Labour Court has examined the matter, whether respondent has committed any offence under Section 106/107 or not. The respondent has denied the fact that they have committed offence. Thereafter, the Labour Court considered one important point, which has been raised by the respondent irrespective of the fact that whether offence has been committed or not by the respondent. The contention was raised by the respondent that complaint which was filed by the petitioner is not within the period of 6 months from the date of offence committed by the respondent and therefore, the complaint is not maintainable and the Labour Court has no power to condone such delay and to entertain the complaint. This aspect has been examined in detail by the Labour Court. The important aspect which is related to the fact, the oral evidence of the petitioner. In oral evidence of the petitioner vide Exh.9, the evidence given by the petitioner is as under:-
“Respondent (accused) has terminated the service on 3rd March 1984 and at that occasion, they were giving 8 rupees salary”.
4. In cross examination of the petitioner he made statement as under:-
“After termination, the petitioner has not reported for work that fact has been correct”.
5. Therefore, the Labour Court has considered that according to the complainant if the service has been terminated on 3rd March 1984 and thereafter he has not reported for work in the Mills Company, offence must have to be committed on 3rd March 1984. Therefore, it is not the continue offence because it was for the petitioner to report for duty and thereafter he was not reported for work. Therefore, offence has been committed on 3rd March 1984 and from date onward within 6 months complaint is required to be filed by the complainant. The complaint was filed by the complainant on 10th January 1985 beyond the period of 6 months. Thereafter, the Labour Court has considered certain decisions cited by the complainant and also distinguished each decisions with application of mind. Thereafter ultimately, the Labour Court has come to the conclusion that it is not a continue offence and moment on 3rd March 1984 service has come to end and thereafter non-report to the Mills Company by the petitioner, then he have to file complaint within the period of 6 months, which is not admittedly filed by the petitioner. The Labour Court has considered Section 468 of the Code of Criminal Procedure that whenever after conviction a penalty has been imposed or fine is required to be imposed, then such complaint must have to be filed within the period of 6 months. Looking to Section 106 and 107, there is no provision of imprisonment provided under both the Sections except Section 106(2) in case section 47 of the BIR Act is violated. In present case, complaint is not filed for breach of section 47 and that aspect has been discussed by both the Courts. Therefore naturally Section 468 limitation for filing complaint would also apply to the facts of the case. Ultimately after considering entire evidence on record and relevant provisions of law, the Labour Court has come to the conclusion that complaint is not maintainable, as it has been filed after the period of limitation.
6. While deciding the said matter, according to my opinion, the relevant Sections are required to be incorporated, therefore, it is very material to visualize the legal situation whether complaint is maintainable or not. The relevant provisions are necessary therefore, the same are quoted as under.
7. Sections 78, 79, 106 & 107 of the Bombay Industrial Relations Act, 1946 are quoted as under:-
“78. Powers Labour Court-
(1) A Labour Court shall have power to-
A. decide-
(a) disputes regarding-
(i) the propriety of 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 and matters arising out of such change;
(b) industrial disputes-
(i) referred it under section 71 or 72;
(ii) in respect of which it is appointed as the arbitrator by a sunmission;
(c) whether a strike, look-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
(b) carry out any change provided such change is a matter in issue in any proceeding before it under this Act.
(2) Every offence punishable under this Act shall be tried by the Labour Court within the local limits of whose jurisdiction it was committed.
79. Commencement of proceedings-
(1) Proceedings before a Labour Court in respect of disputes falling under clause (a) of paragraph A of sub-section 78 shall be commenced on an application made by any of the parties to the dispute, a special application under sub-section (3) of section (3) of Section 52 or an application by the Labour Officer (or a representative union) and proceedings in respect of a matter falling under clause (c) of the said paragraph A on an application made by any employer or employee directly affected or the Labour Officer (or a representative Union).
(2) Every application under sub-section (1) shall be made in the prescribed form and manner.
(3) an application in respect of a dispute falling clause (a) of paragraph A of sub-section (1) of section 78 shall be made.
(a) it is is a dispute falling under sub-clause (i) or (ii) of the said clause, within three months of the arising of the dispute.
(b) 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.
(4) An application in respect of a matter falling under clause (c) of paragraph A of sub-section (1) of section 78 shall be made within (six months) of the commencement of the strike, (lock-out, closure or stoppage) or of the making of the illegal change, as the case may be:
(provided that the Labour Court may, for sufficient reasons, admit any application for a declaration that a change is illegal under this Act, after the expiry of (six months) from the date on which such change was made:
Provided further that when an application is admitted after the expiry of (six months) under the preceding proviso the employer who made the change shall not be liable to the penalty provided under Section 100)
106 (1) Any employer who makes an illegal change, shall on conviction, be punishable with fine which may extend to Rs.5,000.
(2) Any employer who contravenes the provisions of Section 47 shall on conviction, be punishable with imprisonment which may extend to three months, or for every day on which the contravention continues with fine which may extend to Rs.5,000, or with both.
(3) The Court convicting any person under sub-section (1) or (2) may direct such person to pay such compensation as it may determine to any employee directly and adversely by the change in issue.
107 Any employer who acts in contravention of model standing order notified and in operation under sub-section (5) of section 35 of a standing order settled under Chapter VII shall, on conviction, be punishable with fine which may extend to Rs.500 and in the case of a continuing contravention of such standing order, with an additional fine which may extend to Rs.125 per day for every day during which such contravention continues.
8. The relevant Section 468 and 473 of the Code of Criminal Procedure are also quoted as under:-
“468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take congnizance of an offence of the category specified in sub-section(2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(i) six months, if the offence is punishable with fine only;
(ii) One year, if the offence is punishable with imprisonment for a term not exceeding one year;
(iii) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purpose of this section, the period of limitation, in relation to offences which may be tried, together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
473. Extension of period of limitation in certain cases. Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice.
9. Thereafter, the petitioner has challenged the order in Revision Application before the Industrial Court. The Industrial Court has also considered this legal aspect in detail. On the contrary, according to my opinion, the Industrial Court in Revision with full application of mind and in batter way, the whole problem has been examined by the Industrial Court. Industrial Court has considered that whether it amounts to continue offence or not. If it is not continue offence and complaint is filed after period of 6 months, then whether the Labour Court is having power under Section 473 of the Criminal Procedure Code to condone such delay, if occurred in filing complaint and then also examined whether under the provisions of the B.I.R. Act, 1946, the Labour Court is competent to condone such delay, the power similar to the competent Criminal Court under Section 473 of the Criminal Procedure Code. This all has been examined at length and cogent reasons also given by the Industrial Court and ultimately, Industrial Court has come to the conclusion that looking to Section 78 read with Section 468 of the Code of Criminal Procedure, complaint must have to be filed with a period of 6 months, because moment the order of termination has been effected or passed and thereafter the petitioner has not resumed or went to the Mills Company for reporting duty. Therefore, it was not a continue offence committed by the employer and therefore, complaint must have to be filed within a period of 6 months. The Industrial Court has also come to the conclusion that the Labour Court has no power similar to the Criminal Court to condone the delay, as it is a creation by special statute. Therefore, normally when there is a conflict between General Law, normally and ordinarily provisions of Special Law must have to be prevailed. Therefore, after examination of Section 78/79, ultimately the Industrial Court has come to the conclusion that the Labour Court is not a competent to exercise powers to condone the delay in filing the complaint, while exercising power under Section 473 of the Criminal Procedure Code. Therefore, ultimately, Revision Application has been rejected by the Industrial Court.
10. Here in this case, there is a concurrent finding given by both the Courts below. A power of Industrial Court under Section 85 of B.I.R. Act, 1946 is a revisional power similar to Article 227 of the Constitution of India. Therefore, once Appellate Court having revisional power has already examined the matter in detail at length and properly with application of mind, then against the revisional order, the present petition is also filed under Article 227 of the Constitution of India, such challenge by the petitioner against the revisional order cannot survive. However, revision according to my opinion should not have to be entertained by this Court while exercising power under Article 227 of the Constitution of India. Apart from this legal aspect, I am fully satisfied with the reasoning given by both the Courts below and looking to the deposition of the petitioner, that after 3rd March 1984, he has not reported for work in the Mills Company, therefore, offence has been committed on 3rd Mach 1984. Complaint was filed on 10th January 1985 beyond period of 6 months and provisions of Section 468 of Criminal Procedure Code is fully applicable and the Labour Court is not a competent to condone the delay and no such power has been given by statutory provisions of the Labour Court in Special Law BIR Act, 1946 and therefore, according to my opinion, none of the authorities have committed any error, which require interference by this Court while exercising power under Article 227 of the Constitution of India.
11. The power of judicial review is also very limited. This Court cannot exercise its power by way of critical analysis of the order passed by the authority below. According to my opinion, the finding given by the Labour Court is not baseless and perverse. On the contrary, the finding given is based upon the evidence of the petitioner and it also based upon the legal evidence. There is no procedural irregularity committed by either of the authorities. There is no misconception of law committed by either of the authorities. Even in case two views are possible, this Court should not interfere by the finding given by the appellate authority. Recently the Apex Court has considered the scope of judicial review by the High Court under Article 226 and 227 of the Constitution of India. In recent decision of the Apex Court in the case of Syed T.A.Naqshbandi & Ors. Vs. State of Jammu & Kashmir & Ors., reported in 2003 (9), Supreme Court Cases, page 452, the relevant observation made in head note H are quoted as under:-
“Judicial review is permissible only to the extent of finding whether the process is reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the courts, exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions. Grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the Court in exercise of its powers of judicial review. Unless the exercise of power is shown to violate any other provision of the Constitution of India or any of the existing statutory rules, the same cannot be challenged by making it a justifiable issue before courts.
12. In view of this entire facts of circumstances, and after perusing both the orders and vehement submission of Mr.Pandit, according to my opinion, none of the authorities have committed any kind of error, either judicial or factual and Mr.Pandit is not able to point out in infirmity in the order and therefore, there is no substance in the present petition, accordingly, the same is dismissed. Rule discharged with no order as to costs.