Rajaram Dipoo Khatik vs Shriram Mills And Anr.
2001 Latest Caselaw 943 Bom

JUDGMENT

Nishita Mhatre, J.

1. This Writ Petition challenges the order of the Industrial Court dated 12th May 1993 dismissing the application filed by the Petitioner under sections 78 and 79 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the "said Act") on the ground that the approach of the Petitioner was not made within the period of limitation prescribed under the said Act and Rules framed thereunder.

2. The Petitioner was a permanent workman since 1961 with Respondent No. 1 Mill. After the textile strike in the year 1982, the Petitioner was not given any work for some period of time. The Petitioner reported for duly almost every day, but he was not permitted to work in the Mill. On 19th June 1984, the Petitioner called upon Respondent No. 1 Mill to give him work. He informed Respondent No. 1 by the said letter that it was because of the dangerous situation and closure of Mills during the strike period that he could not attend work. He also mentioned that he was given work on 7th January 1983 and thereafter was refused work from 8th January 1983 to 22nd February 1983. Again, he was provided work on 23rd February 1983 and 16th May 1983. The Petitioner did not receive any reply to this letter and, therefore, sent another letter on 16th July 1984 reiterating his case. As Respondent No. 1 Mill took no steps to employ the Petitioner, he sent an approach notice under Section 42(4) of the said Act on 1st August 1984. The Mill did not bother to reply to this letter either. The Petitioner, therefore, had no option but to file an application under sections 78 and 79 of the said Act on 27th August 1985 claiming reinstatement and continuity of service and full back wages before the Labour Court. Respondent No. 1 Mill in its Written Statement contended that the application of the Petitioner was barred by limitation and that despite an appeal issued to the striking workers in the newspapers to resume duties by 15th November 1984, the Petitioner had failed to do so. The Mill also contended that as the Petitioner did not report for duty, the Mill had no option but to terminate his service after issuing a chargesheet and holding an inquiry against him.

3. Evidence was led before the Labour Court by both the Petitioner as well as Respondent No. 1 Mill. In the meantime, the Petitioner was reinstated on 14th January 1987. However, the payment of back wages was to be decided by the labour Court. The Labour Court framed two issues, namely, (i) whether the application of the Petitioner was within the period of limitation; and (ii) whether he was entitled to back wages. On the question of limitation, the Labour Court held that the Petitioner was not aware of the date of termination and, therefore, the question of limitation would not arise. On the basis of the evidence led before it, the Labour Court was of the view that the approach notice had been sent within the period of limitation and that the application under sections 78 and 79 of the said Act was maintainable. The Labour Court, however, directed the Mill to pay 30% of the last drawn wages as back wages to the Petitioner from the date of his dismissal till 14th January 1987 i.e. the date on which he was reinstated.

4. Being aggrieved by the order of the Labour Court, the Mill filed an Appeal under Section 84 of the said Act before the Industrial Court. The Industrial Court reversed the order of the Labour Court and held that the approach notice was not sent within the period of three months and, therefore was barred by limitation. Consequently, the application under sections 78 and 79 of the said Act was also not maintainable.

5. Learned Advocate for the Petitioner in this case has placed reliance on the judgment of this Court in Writ Petition No. 368 of 1998 Parshuram Ganpat Bhoir v. National Textile Corporation (S.M.) Ltd. (Unit : Kohinoor Mills and Ors. since reported in 2002(2) Mh.LJ. 79.) as welt as the judgment of this Court in Jaywant Y. Raut v. Simplex Mills Ltd. and Ors., 1995 II CLR 641. In both these matters, the learned Judges have considered the issue of limitation and have held that where the workman is not informed of the date of termination of service, the question of limitation under Section 42(4) of the said Act read with Rule 53(1) and (2) of the Bombay Industrial Relations Rules, 1947 would not arise. In the Written Statement the Mill took up the contention that an inquiry had been held against the Petitioner and that his services had been terminated. The Mill also contended that this order of termination was communicated to the Petitioner. From the record before the Labour Court as well as the Industrial Court, it does not appear that the Mill has substantially proved that the Petitioner was made aware that his services were terminated and that he was dismissed from a particular date. Merely passing an order of dismissal/ discharge and not communicating it to the employee would not suffice. Limitation of three months is to be reckoned from the date the employee is informed of the termination of service. In the present case, the Petitioner has not been informed that his services were terminated. In view of this, the question of the period of limitation of three months coming into operation does not arise.

6. In these circumstances, Writ Petition is allowed and the order of the Industrial Court dated 12th May 1993 is quashed and set aside. The order of the Labour Court dated 25th July 1989 is upheld. No order as to costs.

7. Issuance of certified copy expedited.