SHANKAR VASUDEO MASURKAR Vs. SITARAM MILLS

JUDGEMENT

(1.) THESE appears are directed against the common order passed by the learned Single Judge in Writ Petition No. 26 of 2001 and Writ Petition No. 404 of 2001. Appeal No. 936 of 2001 is filed by the employees of Shree Sitaram Mills whereas Appeal No. 564 of 2001 is filed by the management of the said mill. For the sake of convenience the employees are hereinafter referred to as "the appellants" and the management of the mill as "the respondent".

(2.) APPELLANT No. 1 and the late husband of appellant No. 2 were working in the respondent mill as attendance clerk and labour boy respectively. Appellant No. 1 had joined the service in 1970 while the husband of appellant No. 2 joined in 1972. From 15-1-1982 there was a general strike in the cotton textile industry called by an unrecognised union viz. Maharashtra Girni Kamgar Union. Though the strike was called by an unrecognised union not registered under the provisions of the Bombay Industrial Relations Act, 1946, hereinafter referred to as the Act, it received a wide response from the employees in the cotton textile industry. A large number of employees were thrown out of service with scant regard being paid to the principles of natural justice or any procedure under the law and the Standing Orders. According to the appellants they were reporting for duty but they were not allowed to enter the mill premises. The appellants time and again were informed by the security and supervisory staff of the respondent that they could join the duty when their names were put on the notice board. In the meantime the Central Government took over the management of the respondent mill and certain other mills by an Ordinance promulgated by the President of India as Textile Undertaking (Taking Over Management) Ordinance, 1983 and the management of the respondent mill came to be vested in the National Textile Corporation (NM) Ltd. According to the appellants they had not participated in the strike declared by the unregistered union. The appellants made several representations requesting the respondent to allow them to resume their duties but no response was given by the management of the respondent. The services of the appellants were never terminated. No charge-sheets were issued to the appellants nor any enquiry was held against them. Finally, the appellants sent the approach letters dated 6-1-1993 and 16-1-1993 thereby calling upon the respondent to allow the appellants to resume the work with continuity of service and full back wages since 18-1-1982. The approach letters were not replied by the respondent and, therefore, the appellants filed applications in the Labour Court Mumbai under section 79 read with section 42 (4) of the Act seeking reinstatement with full backwages.

(3.) THE respondent opposed the applications made by the appellants mainly on the ground that the approach letters dated 6-1-1993 and 16-1-1993 were barred by limitation. On the basis of the pleadings, documents and evidence adduced by the parties it was held by the Labour Court that the concerned employees were terminated by the respondent illegally and improperly. It was held that the approach letters were not barred by limitation and applications were maintainable. After answering the said issue the Labour Court granted reinstatement with full backwages and continuity in service to the concerned employees. The Labour Court has categorically found on the basis of the evidence of the parties that they had sent two post cards in the month of May, 1984 and January 1987 and thereafter they ad sent the aforesaid letters of approach under section 42 (2) of the Act. The Labour Court further recorded that there was no termination order passed by the respondent and, therefore, the cause of action continued to survive and it was of the recurring nature and, therefore, the cause of action continued to survive and it was of the recurring nature and, therefore, according to the Labour Court there was no bar of limitation as there was no order of termination passed by the respondent under the Standing Orders as contemplated under section 78 of the Act. The Labour Court, therefore, upheld the legality of the approach letters and also the maintainability of the applications. The Industrial Court in appeal has held that limitation to submit the approach letters did not commence from the date of refusal of work and that the approach letters dated 6-1-1993 and 16-1-1993 were not bared by limitation. However, the Industrial Court had brought down the period of backwages from 16-1-1993. Against the order of the Industrial Court, both the parties preferred writ petitions which were disposed of by the learned Single Judge by the impugned order. The learned Single Judge relying upon his own judgment in another writ petition being Writ Petition No. 172 of 2000 (National Textile Corporation (SM) v. Shri Mhmd. Umer Mohmd Hanif), held that the approach notices were barred by limitation. However, the learned Single Judge has recorded in the impugned order that the Counsel appearing for the respondent order that the Counsel appearing for the respondent made a statement that appellant No. 1 would be reinstated with continuity of service till he reaches the age of retirement upto 63 years as provided under the Standing Order 20-A without backwages and he would be given continuity of service to enable him to get gratuity for the entire period. The learned Judge further directed the respondent to pay to the appellant No. 2 the amount equal to gratuity as compensation in lieu of reinstatement with continuity of service.