SHARAD DINKAR DONGARE Vs. R V INGALE

JUDGEMENT

(1.) AN order dated 4-7-1984 passed by the Industrial Court, Maharashtra at Solapur has given rise to the present petition under Articles 226 and 227 of the Constitution of India. The learned member had dismissed an appeal filed by the petitioner employee in the Industrial Court under section 84 of the Bombay Industrial Relations Act, 1946 (hereinafter for short referred to as the BIR Act), to challenge the order of the Labour Court, Solapur passed in the application filed before it by the petitioner-employee.

(2.) THE factual matrix of the petition can be summarised as under :---The petitioner was appointed by office order dated 25th August, 1983 as a Civil Supervisor for expansion of building for a period of one year at the first instance. From the office order, it is clear that he was appointed for the temporary post of Civil Supervisor and his consolidated salary was Rs. 500/- per month. Clause 3 of the order further clarifies that the petitioner was liable to be terminated from employment before completion of one year with one months notice if his work was found "dis-satisfactory". The petitioner was appointed on 14th July, 1983 and accordingly he appears to have taken charge from that date. By his letter dated 27th August, 1983, the petitioner requested to pay him Rs. 800/- per month instead of Rs. 500/- per month. According to him that was the negotiated pay at the time of his interview. By a letter dated 29th October, 1983, the petitioner again requested the management of the respondent No. 3, employer, that his probation period of 3 months was completed and that he should be absorbed in regular employment in the post of a senior clerk and he should be given the pay scale of a senior clerk. It further appears from the record that by an office order dated 24th December, 1983, the petitioner was put in a monthly pay scale of Rs. 400/- with effect from 1st December, 1983. The order also reflects that his first annual increment was to be released on 1st December, 1984. The last para of the order further clarifies that the other terms and conditions of employment as enumerated in the office order No. 122 dated 25th August, 1983 will remain unchanged. Immediately thereafter the petitioner has represented to the management that he should be given the pay scale of Junior Clerk. By his next letter dated 16th May, 1984 the petitioner once again requested to the management of the 3rd respondent, employer, that he should be paid variable D. A. and that he should be regularised in employment. Instead of regularising the petitioner in employment, he was given a final blow of termination from employment by a notice dated 29th May, 1984 being effective from 14th July, 1984. Being aggrieved by the said notice of termination, the petitioner addressed a letter of request to the General Manager of the respondent No. 3, employer on 9-6-1984 that instead of discontinuing him from employment, he should be regularised in employment and that his application should be sympathetically considered. Since there was no reply to the said letter of request, the petitioner addressed another letter dated 13th August, 1984, wherein he set out whatever appears to have transpired according to him and finally made a request that he should be reinstated with continuity of service and full back wages and compensation. He had forwarded the copies of this letter to the Government of Labour Officer, Solapur as also to the Commissioner of Labour, Mumbai. This letter is called by the petitioner as a letter of approach under section 42 (4) of the B. I. R. Act. By this letter, the petitioner had approached the respondent No. 3 employer pointing out that the notice of termination dated 29th May, 1984 was illegal and improper. The petitioner having not received any response from the respondent No. 3, employer, to his approach letter, filed an application under section 79 read with section 78 (1) and section 42 (4) of the B. I. R. Act, challenging legality and propriety of the notice of termination dated 29th May, 1984 and his final termination with effect from 14th July, 1984. This application was filed on 9th November, 1984. The respondent employer by its written statement contested the application of the petitioner on various grounds. None of the parties adduced any oral evidence before the Labour Court. As far as the preliminary point regarding jurisdiction of the Labour Court is concerned, the learned Advocate for the respondent No. 3, employer has not pressed the same before me. The Labour Court, however, has framed an issue in respect of the application being time barred as was contended by the 3rd respondent, employer and it was answered in favour of the respondent No. 3, employer. It appears from the discussion of the Labour Court in para 6 of the judgment that the point of limitation has been taken by it to be the date of letter of request dated 9th June, 1984. The period of limitation under section 42 (4) of the Act is computed on and from 9th June, 1984. According to Labour Court, the application ought to have been filed within 3 months from 9th June, 1984 and as it was filed on 9th November, 1984, the application was barred by limitation. This finding of the Labour Court has been confirmed by the Industrial Court in appeal. According to me, both the courts below have committed grave error of law while dismissing the application being barred by limitation, it being filed beyond the period of 3 months from the date of request letter i. e. 9th June, 1984. According to me, the petitioner had only received a notice of termination dated 29th May, 1984 while he was in service and the same was to be effective from 14th July, 1984. While in employment itself, if an employee makes a request to the employer to re-consider or review the decision, it cannot be treated as a letter of approach and limitation of 3 months cannot be computed therefrom. The whole philosophy of the B. I. R. Act is based on mutual relations. It is always beneficial for mutual good relations between the employer and the employees that the employees make a request or a representation to the employer bringing to his notice the grievances or complaints. In the present case, on receipt of the notice of termination dated 29th May, 1984, the petitioner employee had pointed out to the General Manager of the respondent No. 3 that the notice to terminate him was not proper and that his case should be considered sympathetically. He had also pointed out in his letter that he was novice in the town and that he would not find a new job elsewhere. By his letter he has invoked the sympathies of the employer and he has not tried to assert his legal rights. He, perhaps, would not have prayed for reinstatement in that letter as he was already in the employment. He has appealed to the good conscience of the employer for reviewing or revising its decision to terminate his employment from 14th July, 1984. If such a request letters or representations made by the employees are to be termed as approach letters under section 42 (4) of the B. I. R Act, in that case, all the doors of the mutual and informal dialogue would remain closed for ever. I, therefore, do not hold that the said letter can be considered to be a letter of approach under section 42 (4) of the B. I. R. Act. Even technically speaking, the said letter cannot be termed as a letter of approach as no copies thereof have been forwarded to the appropriate authorities under the B. I. R. Act. The courts below, therefore, were wrong in computing the period of limitation under section 79 from the date of the said letter of request. According to me, the period of limitation under section 79 read with section 42 (4) would commence from the letter dated 13th August, 1984 which can be safely termed as a letter of approach under section 42 (4) of the B. I. R. Act. It complies with the formal requisition of the prescribed rules as copies of this letter have also been forwarded to the prescribed authorities under the B. I. R. Act. According to me, this is the letter of approach proper under section 42 (4) of the B. I. R. Act and limitation of 3 months to file an application under section 79 read with section 78 of the B. I. R. Act would commence therefrom. By computing the period of limitation from 13th August, 1984, the application being filed under section 79 of the B. I. R. Act on 9th November, 1984, therefore, is well within the period of 3 months set for limitation. According to me, therefore, the application is not barred by limitation as the same is filed within the prescribed limitation period of 3 months from the date of the letter of approach.

(3.) EVEN considering the question of limitation from an entirely another angle, I am satisfied on law that there is no delay of any nature in filing the present application by the petitioner. One of the ground of challenge to the order of termination is violation of section 25-F of the Industrial Disputes Act, 1947 (hereinafter for short referred to as the I. D. Act. ). There is no dispute and it is clear from the face of the notice of termination that it is a simple termination which is being attacked as an illegal order of retrenchment being in violation of section 25-F of the I. D. Act. The question of retrenchment will not be covered within the meaning of section 78 (1) (A) (a) (i) which reads as under :---the propriety or legality of an order passed by an employer acting or purporting to act under the standing order. " obviously the impugned notice of termination does not fall under this clause to attract the point of limitation as prescribed under Rule 53 of the B. I. R. Rules. If the impugned notice of termination is not covered to be an order under the standing orders in that case, the period of 3 months prescribed under the said rule will not be applied. For ready reference Rule 53 (1) is reproduced below :---" (1) Any employee or a Representative Union desiring a change in respect of (i) any order passed by the employer concerned under standing order 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 in writing to the employer. An application for change in respect of an order passed by the employer under standing orders shall be made within a period of three months from the date of such order. Where such application is made by an employee it may be made to the employer direct or through the Labour Officer for the local area or the representative of employees concerned. A copy of the application shall be forwarded to the Commissioner of Labour and in cases where such application is not made through the Labour Officer for the local area to that officer. " (emphasis is given by me)The grievance of the petitioner, therefore, would be shifted to the provisions of section 78-A (a) (iii) of the B. I. R. Act. The petitioner is desiring a change in respect of his employment, including reinstatement as prescribed under Item 6 of Schedule III of the B. I. R. Rules. The petitioner is challenging the legality or propriety of the order of retrenchment and his dispute would squarely fall under Item 6 of Schedule 3 of the Rules read with section 78 (1) (A) (a) (iii ). I am making it further clear that any order of retrenchment cannot be construed to be an order passed under the standing orders and in that case the dispute would be squarely covered by the aforesaid provisions. If any employee desirous to challenge such an order of retrenchment, his dispute will be governed by Rule 53 (1) (iii ). On reading the entire Rule 53 it is clear that the period of limitation is prescribed only for an order which is passed or purported to be passed under the standing orders. There is no period of limitation of 3 months from the date of any order contemplated under the said rules. In respect of other matters any aggrieved employee can send a letter of approach under Rule 53 under Schedule III of the Act at any time and thereafter can file an application under section 79 of the Act within 3 months from the date of such approach. It is significant to note that there is no limitation period for approaching the employer for a grievance which is covered under Schedule III of the Act. The limitation prescribed, however, is for filing an application before the Court under section 79 of the Act. Such a limitation is 3 months from the date of the approach letter. In the present case, the dispute of the petitioner not being covered by section 78-A (a) (i) and being covered by section 78-A (a) (iii) it will fall under Item 6 of Schedule III of the Act, and therefore, even though last approach being made on 13th August, 1984, the application was well within the limitation period of 3 months. The petitioners application, therefore, could not have been dismissed by the Labour Court on the ground of limitation.