AMARSINH SWAROOPSINH Vs. JAGDISH PROCESSORS

JUDGEMENT

(1.) If an application is filed under Sec. 79 of the Bombay Industrial Relations Act, 1946 raising grievance about the illegal change, before expiry of the prescribed period as provided under the proviso to Sec. 42(4) of thy said Act, read with Rule 53 of the Bombay Industrial Relations (Gujarat) Rules, 1961, is the application liable to be rejected ? This question is required to be answered in the background of the facts that follow : The petitioners were serving in Screen Printing Department of respondent's Processing Unit for a period of about 41/2 to 5 years prior to the date of their discharge from service on 10/08/1985. They challenged the legality and validity of their discharge from service by filing "T" Applications Nos. 341, 342 and 343 of 1985 under Sec. 79 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as ''the Act"). The respondent-employer resisted the applications. The Labour Court on merits held that the stand taken by the employer in the written statement and at the stage of evidence was contradictory. In the written statement it was contended by the employer that the employees had submitted resignation on 2/08/1985. While at the evidence stage it was contended that the employees were engaged by the labour contractor and were not the employees of the respondent-employer. On appreciation of evidence the Labour Court held that the termination of services of each of the employees was in contravention of the provisions of the Standing Order and it was unlawful. But the Labour Court held that the applications were premature inasmuch as they were filed before the expiry of the prescribed period of 15 days from the date of receipt of the approach letter. Hence the Labour Court rejected the applications as per its judgment and order dated 9/03/1990. All the three employees preferred three separate appeals being appeals (1C) Nos. 40, 41 and 42 of 1990 before the Industrial Court, Gujarat, at Ahmedabad. The Industrial Court did not go into the merits of the order of discharge from service but considered only the question with regard to the maintainability of the application in view of the provisions of Sec. 42(4) of the Act and Rule 53 of the Bombay Industrial Relations (Gujarat) Rules, 1961 (hereinafter referred to as 'the Rules''). The Industrial Court held that the applications were premature and confirmed the finding of the Labour Court on this point and ordered to dismiss the appeals as per its consolidated judgment and order dated 17/09/1990. The petitioners-employees have filed this one petition challenging the legality and validity of the judgment, and orders passed by the Labour Court and confirmed by the Industrial Court.

(2.) Proved and/or admitted facts are that the employees were in service of respondent for a period of about 41/2 years on the date of filing of the applications, i. e., 26/08/1985. They were discharged from service on 10/08/1985. They wrote approach letter as required under the provisions of Sec. 42 of the Act on the same day, i. e., 10/08/1985. It was received by the employer on 12/08/1985. T applications No. 341, 342 and 343 of 1985 under Sec. 79 of the Act were filed on 26/08/1985. Admittedly, calculating the period of 15 days from the date of receipt of the approach letter, i. e., 12/08/1985 the prescribed period of 15 days would expire on 27/08/1985. The applications have been filed on 26/08/1985. Hence the question : Whether the applications wen; liable to be rejected because they were filed before the expiry of the prescribed period of 15 days as provided under Rule 53 of the Rules read with Sec. 42(4) of the Act ? Both, the Labour Court as well as the Industrial Court, have held that the applications were liable to be rejected. With utmost respect, the view taken by both the lower Courts is erroneous.

(3.) The Industrial Court has placed reliance on Division Bench judgment of this Court in the case of Amarsinhji Mills Ltd. v. Sanalal G. Patvi, reported in (1971) XII GLR 117. In that case the question arose as to whether the applications filed by the employee under Sec. 78(1) A (a) before the Labour Court was within the period of limitation or was it barred by limitation ? In that case the employee was discharged from service on 25/10/1962. He asked for reasons of discharge by letter dated 29/10/1962 which was not replied to by the Company. On 3/11/1962 the employee wrote approach letter as provided under Sec. 42(4) of the Act and called upon the Company to withdraw the order of discharge. The Company replied on 4/11/1962 stating that no settlement was possible. On 16/02/1963 the employee filed application under Sec 78(1) A (a) of the Act. The Labour Court held that the starting point of limitation was 4/11/1962, i.e., the day on which the Company replied that settlement was not possible. Thus considering three months from that date the period of limitation would expire on 4/02/1962 and since the application was filed on 16/02/1962 it was held to be time barred. On appeal, the Industrial Court held that the applications were filed within the prescribed period of limitation inasmuch as the starting point of limitation would be after the expiry of the prescribed period of 15 days from the date of receipt of approach letter by the employer.