VITHALDAS VALLABHDAS VAISHNAV Vs. KOHINOOR MILLS CO

JUDGEMENT

(1.) The petitioner was employed as a storekeeper in the respondent No. I mill since 21-9-1949. His services came to be terminated with effect from 1-10-1973 on the ground of loss of confidence. The petitioner approached the employer for reinstatement through advocate's notices dated 4-10-1973, 8-10-1973 and 31-10-1973. He also made an application to the Assistant Commissioner of Labour on 12-11-1973 to the same effect. He then filed the present application for reinstatement and back wages before the Labour Court on 4-6-1974 under S. 78 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the Act"). The employer resisted his claim on the ground, among others, that the same was not maintainable being barred by limitation. The issue of limitation was tried as a preliminary issue at the instance of the employer. The Labour Court upheld that the contention of the employer, holding that the application dated 4-6-1974 was beyond three months and 15 days after the employer was approached for the needful. He also held that he had no powers to condone the delay. Validity of this order of the Labour Court dated 30-9-1976 is challenged in this petition under Arts. 226 and 227 of the Constitution.

(2.) It will be convenient to take a resume of the relevant provisions of the Act and the Rules to appreciate the points decided and raised. The right to get the employer's order of dismissal cancelled by application to the Labour Court, is conferred on the employee by sub-s. (4) of S. 42 of the Act. It is not in dispute that the dismissal order is passed in exercise of the powers under the standing orders. This is expressly treated as an application for "change". The right to get the same altered by way of "change" is expressly provided under this sub-section along with rights to get the industrial matters specified in Schedules I to III of the Act "changed" in accordance with the procedure under S. 42 and Chapter VIII. Section 79(3) requires the employer to apply to the Labour Court for such a relief within three months from the dispute. The power to adjudicate such dispute is conferred on it under S. 78 of the Act. Proviso to S. 42(4), however, requires an employee as a condition precedent to make an attempt to get such an adverse order "changed" by approaching the employer and securing his agreement to that effect within the period prescribed. It is convenient to quote the proviso at this stage :

(3.) Section 123(2)(t) empowers the State Government to make Rules indicating the manner of such approach and the period within which to so approach, and secure such an agreement as contemplated under this proviso. Starting point of limitation of three months under S. 79(3) is not made to run, from the date of dismissal when really the dispute between the employer and the employee arises, but from the date of the failure to get such an agreement, when artificially the dispute is assumed to have arisen under the Explanation to S. 78 of the Act. As indicated in the proviso itself, the contemplated approach to the employer consists of two stages, viz. (1) approaching the employer and (2) negotiating with him to arrive at the agreement, if he is responsive. The object obviously is to secure the redressal of the grievance by conciliation and negotiations and also, secondly, to enable the employer to have a second look at his act of dismissal having regard to the serious consequence with which such dismissal is liable to be pregnant in the even of being set aside.