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Mulji Gangaram and anr. (of Vivekananda Mills) Vs. F. Jeejeebhoy and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Judge
Reported in(1955)IILLJ760Bom
AppellantMulji Gangaram and anr. (of Vivekananda Mills)
RespondentF. Jeejeebhoy and ors.
Excerpt:
- - 2. the petitioners put strong reliance upon a recent full bench judgment of this court in civil revision application no......tribunal or by sending it by registered post, delivery of the memorandum of appeal to the post office with a direction that it be sent by registered post is sufficient compliance with the rule, and the appeal must be deemed to be properly filed if the papers have been properly delivered in the post office within the period of limitation. the view taken by the full bench was that when an option is given to a litigant to prefer an appeal by sending it by registered post, the post office is constituted an agent of the court in which the appeal is to be preferred, and handing over the papers to the post office would be deemed to be lodging the appeal with the court.3. section 84 of the bombay industrial relations act provides in the second sub-section thatevery appeal shall be made.....
Judgment:

1. The petitioners preferred an application under Section 79 of the Bombay Industrial Relations Act XI of 1947 for being reinstated in the service of opponent 3. The application was dismissed on 5 May;1953. Against the said order of dismissal the petitioners preferred an appeal to the industrial court. The appeal was despatched by registered post on 4 June 1954 from Ahmedabad and was received in the office of the industrial court on 5 June 1954. Thereafter the appeal was posted for the hearing, and the industrial court took the view that the appeal not having been preferred within thirty days from the date on which the order appealed from was passed, it was barred by the law of limitation. Accordingly the appeal was dismissed. An appeal against that order to the Labour Appellate Tribunal was also dismissed. The petitioners have now come to this Court with a request to issue writs under Articles 226 and 227 of the Constitution of India for an order vacating the order of the industrial court holding that the appeal filed by them to that tribunal was not barred by the law of limitation.

2. The petitioners put strong reliance upon a recent Full Bench Judgment of this Court in Civil Revision Application No. 1116 of 1953 delivered on 22 April 1955, in which it was held that where a litigant has been given a right to prefer an appeal by presenting a memo of appeal either in the office of the Appellate Tribunal or by sending it by registered post, delivery of the memorandum of appeal to the post office with a direction that it be sent by registered post is sufficient compliance with the rule, and the appeal must be deemed to be properly filed if the papers have been properly delivered in the post office within the period of limitation. The view taken by the Full Bench was that when an option is given to a litigant to prefer an appeal by sending it by registered post, the post office is constituted an agent of the court in which the appeal is to be preferred, and handing over the papers to the post office would be deemed to be lodging the appeal with the court.

3. Section 84 of the Bombay Industrial Relations Act provides in the second sub-section that

every appeal shall be made within thirty days from the date of the decision, conviction, acquittal or sentence, as the case may be.

In the present case the order appealed from was passed on 5 May 1954, and thirty days expired on 4 June 1954. The petitioners handed over the memorandum of appeal in the post office at Ahmedabad on 4 June 1954. The papers were accordingly delivered in the post office within thirty days from the date of the order appealed from as provided by Section 84. Section 84 does not state that the appeal shall be filed in the office of the tribunal within the period of thirty days from the date of the order appealed from. The legislature has advisedly used the expression 'appeal shall be made within thirty days' in Section 84.

4. Under the Bombay Industrial Relations Act regulations have been framed for various matters including filing of appeals and allied matter. Regulation 29 of those regulations provides inter alia that

every application, petition, appeal, written statement or statement of claim to be made to the Court under the Act shall be filed in the office or sent to the Registrar by registered post.

and Regulation 30 provides that

the memorandum of appeal shall be filed within the period of limitation prescribed in Section 84(2) on working days, during the business hours specified in Regulations 18 and 19.

It is evident that Regulation 29 refers to a large number of documents, such as applications, appeals, written statements, or statements of claim, and the litigants who have occasion to present any of these documents are given the option of either filing them in the office of the tribunal in which they are to be filed or to send them by registered post. Regulation 30 however refers to memoranda of appeals only, and it provides that memoranda of appeals shall be filed within the period of limitation on working days during business hours prescribed by Regulations 18 and 19. The rule-making authority having given an option to the litigants either to ;file the papers in the office of the tribunal or to send them to the Registrar by registered post, it could not have been the intention in Reg. 30 to restrict the right of the litigants by compelling them to file the memoranda of appeals in the office and during the working hours. In our view Reg. 29 having given an option, Regulation 30 only specifies the manner in which memoranda of appeals shall be filed during the business hours and working days if the litigant prefers that mode of making his appeal. Regulation 30 does not however touch the alternative mode of filing appeals which is provided by the rule-making authority, viz., sending of memoranda of appeals by registered post. This Court having taken the view on a similar statute which makes a provision enabling litigants to send their appeals by registered post, that the memorandum of appeal is to be filed, in our judgment, the same principle ought to apply in the construction of Regulations 29 and 30. We accordingly hold that the meaning of Section 84(2) by sending it to the Registrar by registered post, and that appeal having been made within the period of limitation, there was sufficient compliance with-the requirements of the statute, and the fact that the memorandum of appeal did not reach the office of the Registrar of the tribunal within the period of limitation provided by the Act would not make the appeal barred by the law of limitation.

5. Mr. Gharekhan on behalf of the third opponent has contended before us that the Labour Appellate Tribunal had at the date when it delivered its judgment before it the decision of Division Benches of this Court which had taken the view, that even if a litigant is permitted to send his memorandum of appeal by registered post, the period of limitation would not cease to run until the memorandum of appeal reached the office of the tribunal to which the appeal is to be presented ; and if the Labour Appellate Tribunal followed those decisions it cannot be said that it acted illegally in the exercise of its jurisdiction, and this Court is therefore not entitled to issue a writ either under Article 226 or Article 227 of the Constitution. Mr. Gharekhan has further contended that the judgment of the Full Bench in C.R.A. No. 1116 of 1953 on which reliance has been placed on be half of the petitioners can have no retrospective operation.

6. In our judgment there is no substance in either of the contentions. The Labour Appellate Tribunal was bound to entertain the appeal filed by the petitioners if it was filed within the period of limitation. If on the view we are prepared to take following the decision of the Full Bench (in C.R.A. No. 1116 of 1953) the appeal was made within the period of limitation, in refusing to hear the appeal on the merits, the industrial court must be deemed to have refused to exercise jurisdiction vested in it by law, and this Court, either in exorcise of the powers under either Article 226 or Article 227 of the Constitution would be justified in rectifying the error committed by the industrial court and the Labour Appellate Tribunal. The error committed by the industrial court and the Labour Appellate Tribunal is not one on a question of fact or even on a mere question of law, but it is an error which goes to the very root of the jurisdiction of the industrial tribunal, and this court has power to Correct that error.

7. When a decision is given by this Court on a question of law, this Court is not purporting to legislate but only declares the law. It is difficult then to appreciate the argument that an attempt is sought to be made to give retrospective operation to the judgment of the Full Bench. The judgment of the Full Bench must be deemed to have declared the law and that law must be deemed to have been before the Labour Appellate Tribunal when it dismissed the appeal; and if the labour tribunal gave a decision contrary to that declared law, then it must be deemed to be in error on the question which it decided.

8. In that view of the case the order passed by the industrial court and the Labour Appellate Tribunal refusing to entertain the appeal on the ground that the appeal to the industrial court was bound by the law of limitation must be set aside.

9. We direct under Article 227 of the Constitution that the industrial court do hear and dispose of the appeals filed by the petitioners according to law and on the merits thereof.

10. Rule made absolute. No order as to costs.


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