CHANGUNABAI CHANOO PALKAR Vs. KHATAU MAKANJI MILLS LIMITED

JUDGEMENT

(1.) THE appellant (original writ petitioner) came to be employed in the Winding Department of the respondent company sometime in 1944 according to her and in March 1947 according to the respondent company. The Maharashtra Girani Kamgar Union called upon all employees in the textile industry in Greater Bombay to resort to strike from 18th January, 1982. In view of the said call, the appellant along with other employees absented from duty. The strike was declared illegal by an order of the Labour Court dated 11th February, 1982. According to the appellant, after the Chief Minister made an appeal to the employees to resume duty and the tense situation eased, the employees started reporting for duty and a majority of them were permitted to resume duty. She too reported for duty at the Mill Gate but was not allowed to resume. Her grievance was that she was singled out in that regard and by such discriminatory attitude compulsory unemployment was thrust upon her. She was never charge-sheeted and no Departmental Enquiry was held against her. She was not given compensation under section 25-F of the Industrial Disputes Act, 1947. Under such circumstances, she addressed a letter dated 30th October, 1984 to the respondent company seeking permission to join duty but the request was not entertained, she then sent a approach letter dated 10th November, 1984 but there was no response. She thereupon filed an application under sections 78 and 79 of the Bombay Industrial Relations Act, 1946, claiming reinstatement in service with continuity and full back wages.

(2.) THE case of the respondent company in the course of the adjudication proceeding was that the strike had been declared illegal and that by a notice published in a local newspaper on 28th February, 1982 the employees were apprised of the same and were called upon to resume duty. Again, on 6th April, 1982, by another notice published in a local newspaper, the employees were called upon to end the strike and to resume duty and informed that if they failed to do so, appropriate action would be initiated against them. The appellant, however, failed to report for duty which amounted to misconduct. In view of the prevailing circumstances in which a large number of employees had participated in the general strike, it was not possible to give a charge-sheet to the appellant or to hold an enquiry in respect of the misconduct. By an order dated 22nd December, 1982 she was, therefore, dismissed. The order of dismissal was sent to her at the recorded address but the envelope was returned, which gave rise to a presumption of due service. Under the aforementioned circumstances, according to the respondent company, the approach notice dated 10th November, 1984 was beyond the prescribed time limit and the application, therefore, was not maintainable.

(3.) DURING the course of the adjudication proceedings, the parties led evidence. The respondent company placed on record, inter alia, the envelope bearing the recorded address and returned by the Post Office. The appellant, however, denied that any such envelope was tendered to her at any stage. The Labour Court drew a presumption under section 114 of the Evidence Act and held that there was deemed service of the dismissal order upon the appellant and that since the approach letter was not served within three months thereof, the application under sections 78 and 79 was not maintainable. On merits, however, the Labour Court gave a finding in favour of the appellant. If found that the misconduct of the appellant was mere passive participation in an illegal strike for a fairly long period. For mere passive participation in an illegal strike, the extreme punishment of dismissal was not warranted and it was not proper and legal. Besides, the appellant was discriminated against because all the workers, who had participated in an illegal strike, had not been dismissed. Some of those workers were allowed to resume duty. For all these reasons, it was held that the punishment of dismissal was not legal and proper. In view of the finding on the maintainability of the application, however, the appellant was denied any relief and her claim was dismissed.