RAIBEN SHIVIBEN Vs. RAMESHCHANDRA BHAIYAJI

JUDGEMENT

(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:-