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Amarsinhji Mills Ltd. Vs. Sanalal G. Patvi (Deceased by His Legal Heirs) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR117
AppellantAmarsinhji Mills Ltd.
RespondentSanalal G. Patvi (Deceased by His Legal Heirs) and ors.
Excerpt:
- - nanavati must fail. under section 42(4) proviso, two conditions are required to be satisfied before any employee can approach the court in respect of a dispute arising out of the order passed by the employer against him. under the bombay industrial relations act, as is well-known, one of the objects of enacting the act is to make provision for settlement of industrial disputes and machinery has been provided at different levels to see that the employer and the employee settle their disputes either by agreement or through conciliation or through mediation of different officers but as few matters as possible should be taken to the labour court and industrial court. nanavati on behalf of the petitioner-company fail......under clause (a) of paragraph a of sub-section (1) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section (4) of section 42, no agreement is arrived at in respect of an order, matter of change referred to in the said proviso.section 42(4) is in these terms:(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, shall make an application to the labour 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.....
Judgment:

B.J. Divan, J.

1. The petitioner herein is a Limited Company and the Company is running a Textile Mill at Wankaner in Rajkot District. The petitioner Company is governed by the provisions of the Bombay Industrial Relations Act, 1946. The original first respondent, who died during the pendency of these proceedings was working as an Assistant Spinning Master with the petitioner Company. On October 25, 1962, the original first respondent was discharged by the petitioner-Company and it was an order of discharge simpliciter. One month's pay in lieu of notice was given and there was no show-cause notice nor any enquiry before this order of discharge was passed and, according to the petitioner Company, this order was not by way of punishment and it was not a punitive discharge. On October 29, 1962, the original first respondent asked that the reasons for his discharge should be furnished to him; but no reply was given to this demand On November 3, 1962, the original respondent sent what is known as an approach letter contemplated by Section 42(4) of the Bombay Industrial Act Relations (hereinafter referred to as the Act). By this letter, the original first respondent called upon the petitioner Company to withdraw the discharge order and on November 4, 1962, the petitioner-Company replied that no settlement was possible. Thereafter on February 16, 1963, the original first respondent filed an application under Section 78(1)(A)(a) before the Labour Court. This application was sent by registered post and it reached the Court on February 18, 1963. On October 24, 1963, the Labour Court rejected the application on two grounds. The first ground was that the application was barred by limitation and the second ground was that the order was an order of discharge simpliciter and that there were no grounds for interference with the order passed against the original first respondent by the petitioner Company. On November 26, 1955, the appeal preferred by the original first respondent before the [Industrial Court was allowed by that Court and it was held that the application was within time and further it was held that the order of discharge passed by the petitioner Company was in colourable exercise of the power of the employer and was not a bona fide exercise of that power. Thereafter the present petition was filed in this Court on January 3, 1966, challenging the order passed by the Industrial Court.

2. Mr. Nanavati, on behalf of the petitioner-Company, has urged the same two points as were considered by the Labour Court and the Industrial Court and he has contended, firstly, that the application, when it was filed before the Labour Court, was barred by limitation and secondly that there was patent error of law in the decision of the Industrial Court when it held that the order of discharge was passed by the petitioner Company in colourable exercise of its power.

3. We will take up the second point first. We find in the order of the Industrial Court that the learned President of the Industrial Court has examined the different grounds on which the order of discharge was sought to be supported and his conclusion is as follows:

It is obvious, therefore, that his services have been terminated not because of the conduct alleged in the written statement, but because of his refusal to quit the premises and because of the Textile Labour Union, questioning the right of the management to deprive him of quarters which were given to him for a period of 17 years and which, according to the allegation, they were bound to give under the letter of appointment. All the attendant circumstances leave hardly any doubt in this respect.

It is true that in the reasons given by the Industrial Court for arriving at this conclusion, the Court has used the words 'sufficient' or 'sufficiency' for coming to this particular conclusion. For example in para 21, it has been stated:

I have hardly any doubt that these few incidents spread over a few years will hardly be a sufficient reason for the action taken by the management of discharging the appellant.

We find on a perusal of the judgment of the Industrial Court that different circumstances which were sought to be advanced in support of the order of discharge were considered and the Industrial Court came to the conclusion that those circumstances could not have been and were not in fact the real reasons for discharging the original first respondent but in view of the totality of circumstances, the Industrial Court came to the conclusion chat the real reason for discharging the original first respondent was his refusal to quit the premises and the dispute between the original first respondent and the petitioner Company regarding the interpretation of his terms of employment, particularly qua the quarters given to him. Under these circumstances, the Industrial Court came to the conclusion that the management had victimized the petitioner because of his refusal to quit and because of his having approached the Labour Union for the purpose. In the circumstances, the Industrial Court felt that nothing short of an order of reinstatement in this case would meet the ends of justice. In the light of what we have stated above, it cannot be said that there is any error of law, much less a patent error of law in the decision of the Industrial Court. In the discharge of its functions while disposing of the appeal, the Industrial Court had to decide whether the order of discharge has been passed bona fide or mala fide and if after examining all the materials before it, it came to the conclusion that it was passed mala fide and in colourable exercise of the power of the employer, we cannot interfere in these proceedings under Article 227 of the Constitution. Under these circumstances, this particular contention of Mr. Nanavati must fail.

4. As regards the point of limitation, it will be necessary for us to set out certain provisions of the Industrial Relations Act. Under Section 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 (it) 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 42. Section 78(1)A (a)(iii) provides that a Labour Court shall have power to decide disputes regarding any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule 111 and matters arising out of such change; and Sub-clause (i) also regarding the propriety or legality of an order passed by an employer acting or purporting to act under the standing orders. Schedule III, item (6) mentions 'Employment including reinstatement and recruitment.' Section 78 has an explanation, which reads as follows:

A dispute falling under Clause (a) of paragraph A of Sub-section (1) shall be deemed to have arisen if within the period prescribed under the proviso to Sub-section (4) of Section 42, no agreement is arrived at in respect of an order, matter of change referred to in the said proviso.

Section 42(4) is in these terms:

(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, shall make an application to the Labour 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.

Acting under the rule-making power conferred upon the Government by Section 123 of the Act, Bombay Industrial Relations Rules, 1947, have been made and Rule 53 provides for the manner in which approach is to be made by the employee or a representative union to the employer as contemplated by Section 42(4). Sub-rule (1) of Rule 53 provides that an employee or a representative union desiring a change in respect of any order passed by the employer concerned in the standing orders shall make an application in writing to the employer; and such au application shall be made within three months from the date of the said order.

5. Therefore, what is known as the Approach Letter contemplated by Section 42(4) was addressed by the original first respondent directly to the petitioner-Company, the employer, and that was done in accordance with the provisions of Section 42(4) read with Rule 53 of the Bombay Industrial Relations Rules. Under Section 42(4) proviso, two conditions are required to be satisfied before any employee can approach the Court in respect of a dispute arising out of the order passed by the employer against him. The first condition is that the employee or representative union in the prescribed manner should approach the employer with a request for the change; and the second condition is that no agreement should have been arrived at in respect of the change within the prescribed period. The prescribed period is a period of 15 days under Rule 53, Sub-rule (2) of the Industrial Relations Rules. Therefore, before the application could have been entertained by the Labour Court, it was necessary for the employee to satisfy the Court that the employer had been approached with a request for a change in the prescribed manner; and secondly, within the period of 15 days no reply had been received in respect of the change thus requested for. In the light of these requirements of the proviso to Section 42(4) we have to consider what has been stated in the explanation to Section 78. Under that Explanation, a dispute falling under Section 78(1)(A)(a) would be deemed to have arisen if within the period prescribed under proviso to Sub-section (4) of Section 42, no agreement is arrived at in respect of the change referred to in the said proviso.

6. Mr. Nanavati, on behalf of the petitioner Company has contended before us that the Explanation provides a deeming fiction as to when a dispute falling under Section 78(1)(A)(a) can be said to arise and this deeming fiction cannot apply to the cases where the question is whether as a matter of fact the dispute has arisen. Mr. Nanavati contended that what the Legislature has intended to provide by the Explanation is that in case the employer has not turned down the employee's request for a change, being a request contemplated by Section 42(4), and the period of 15 days has elapsed, dispute shall be deemed to arise; but, he contends, if a dispute has in fact arisen by the employer refusing to entertain the request of the employee or categorically stating that he is not going to consider the request of the employee, then the dispute in fact arises and the deeming fiction under the Explanation to Section 78 is not to be resorted to. This contention of Mr. Nanavati cannot be accepted because under the proviso to Section 42(4), it is incumbent on the employee to make a request in the prescribed manner for a change and the second requirement is that within the prescribed time, no agreement must have been arrived at in respect of that change. Until the prescribed period expires, it cannot be said that no agreement has been arrived at in respect of the change within the prescribed period. It is true that in a particular case the employer might have rejected the request of the employee for change but it cannot be ruled out altogether that within the balance of the prescribed period an agreement may be arrived at. It is for this purpose and with such a possibility of an agreement being arrived at that the Legislature has prescribed in the proviso to Sub-section (4) of Section 42 that the application of the employee is not maintainable unless inter alia no agreement has been arrived at in respect of the change within the prescribed period. Therefore, in every case, the employee must wait till the prescribed period is over and it is only after the prescribed period is over that it can be definitely stated in respect of a particular matter that no agreement had been arrived at in respect of the change within the prescribed period. It is in the light of these special requirements of proviso to Section 42(4) that the Legislature has laid down a deeming fiction in the Explanation to Section 78 and has stated that the dispute in Section 78(1)(A)(a) shall be deemed to have arisen if within the prescribed period no agreement is arrived at. Therefore, the starting point of limitation must be taken to be the end of the period of 15 days prescribed under the rules, these 15 days to be counted from the date when the request for change has been made. This construction that we are placing upon the Explanation to Section 78 is in harmony with the proviso to Section 42(4) and is also in consonance with the scheme of the Act. Under the Bombay Industrial Relations Act, as is well-known, one of the objects of enacting the Act is to make provision for settlement of industrial disputes and machinery has been provided at different levels to see that the employer and the employee settle their disputes either by agreement or through conciliation or through mediation of different officers but as few matters as possible should be taken to the Labour Court and Industrial Court. It is with this object in view that the Legislature requires under proviso to Section 42(4) that the employee must, before approaching the Labour Court, make a request for change; and must wait until the period of 15 days prescribed under the Rules expires before approaching the Court, because until the prescribed period expires, it cannot be definitely said that no agreement has been arrived at within the prescribed period. Under these circumstances, it seems to us that the view taken by the Industrial Court regarding the point of limitation was correct. In the instant case, the approach letter contemplated by Section 42(4) was addressed on November 3, 1962; and the period of 15 days prescribed under the rules would, therefore, expire on November 18, 1962. An application to the Labour Court under Section 79 is to made within a period of three months from the expiry of that period; and the three months would, therefore, expire on 18th February 1963. This application having been made on 16th February 1963, would, therefore, be within time. It was actually received in the Labour Court on February 18, 1963, as it was sent by registered post; and it is not in dispute before us that if the deeming fiction under Explanation to Section 78 is to come into operation, the parties must wait till the expiry of the period of 15 days before approaching the Labour Court. Therefore, the application in the instant case must be held to be within time.

6.1 Under these circumstances both the contentions urged by Mr. Nanavati on behalf of the petitioner-Company fail. This Special Civil Application, therefore, fails and is dismissed. Rule is discharged with costs.

7. We must point out that after this Special Civil Application was filed, an interim order was passed by consent between the parties and the order of the Industrial Court was agreed to be stayed on condition that six months' wages with dearness allowance should be deposited by way of compensation and the Industrial Court had directed that the original first respondent should be reinstated. By agreement between the parties, the petitioner-Company had agreed to deposit in Court the salary of the original first respondent and instead of actually reinstating him, paying him that salary. During the pendency of this petition, the original first respondent died. Under these circumstances, it is but just and proper that the amount of six months' wages and dearness allowance and the recurring wages and or salary of the original first respondent till the date of his death should be paid to his heirs and legal representatives by the petitioner-Company. Out of the amount deposited in Court, these amounts to be paid directly to the heirs and legal representatives of the original first respondent.


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