Best Workers' Union vs Brihan Mumbai Electric Supply And ...
2004 Latest Caselaw 285 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Rule. The respondent No. 1 waives service. By consent, the rule is made returnable forthwith and taken up for hearing.

2. The petitioner challenges the order passed by the Industrial Tribunal on 14-11-2003 condoning the delay in filing the reference by the respondent No. 1 under Section 73A of the Bombay Industrial Relations Act, 1946, hereinafter called as "the said Act". The petitioner is a registered trade union in respect of the employees engaged in the transport undertaking of the first respondent. The second respondent is the Industrial Tribunal which is a formal party to the petition. The service conditions of the employees of the first respondent are governed by their contract of employment, settlement/agreement, various Court Awards and orders as well as the provisions of the said Act. Sometime in September, 2002 the first respondent proposed a change in the service conditions of its employees which were opposed by the petitioner. The proposal therein was processed by the conciliation officer for which proceedings were initiated on 7-9-2002. However, the said proceedings failed and the conciliation officer accordingly made his report on 19-9-2002. Consequently the conciliation proceedings came to an end on 19-9-2002. The first respondent sought to refer the dispute in that regard to the Industrial Court on 3-1-2003 along with an application for condonation of delay which was opposed by the petitioner on the ground that the period for filing the reference had expired on 19-11-2002 and there was no provision in the said Act for condonation of delay in filing such reference under Section 73A and hence there was no question of condonation of delay in preferring the reference. The Industrial Tribunal, however, condoned the delay overruling the said objection on the part of the petitioner. Hence, the present petition.

3. While assailing the impugned order, the learned Advocate appearing for the petitioner submitted that the relevant provision of law in the said Act does not empower the Industrial Court to condone the delay in filing reference under Section 73A of the said Act and considering the scheme of the said Act, it is to be held as a complete Code in itself wherein the Legislature has provided enough powers for condonation of delay wherever so required, while denying such powers to the Industrial Court where they are not required, and has further submitted that the provision of Section 5 of the Limitation Act, 1963 is not applicable to the Industrial Court. He has sought to place reliance in the decision of the Apex Court in the matter of Prakash H. Jain v. Marie Fernandes (Ms), in support of his contention that the Industrial Courts have no inherent powers while dealing with matters under the said Act and, therefore, could not have condoned the delay in the absence of specific provision in that regard in relation to reference applications filed under Section 73A of the said Act. Reliance is also sought to be placed in the decision of the Apex Court in the matter of Nasiruddin and Ors. v. Sita Ram Agarwal, . On the other hand, the learned Advocate appearing for the first respondent, placing reliance in the decisions of the Apex Court in the matters of The Municipal Corporation of Greater Bombay v. The B.E.S.T. Workers' Union, and The State of Maharashtra v. Labour Law Practitioners' Association and Ors., as well as of the Madhya Bharat High Court in the matter of Jiyajirao Cotton Mills Ltd. v. The Chairman Industrial Court, Madhya Bharat, and another, reported in AIR 1953 M.B. 231, has submitted that the Industrial Court for all purposes deals with disputes of civil nature and is therefore Court to which the provisions of Section 5 of the Limitation Act, 1963 apply and therefore even though there is no specific provision in Section 73A for condonation of delay in filing reference, no fault can be found with the exercise of discretionary powers by the Industrial Court in condoning the delay. He has further submitted that the period of limitation relates to procedural aspect of the matter and therefore the said provision is to be held as directory and not mandatory and therefore the said provision regarding the requirement of compliance or the period of limitation is to be held as directory and not mandatory.

4. Upon hearing the learned Advocates for the parties and on perusal of the records, the following questions arise for consideration :--

(i) Whether the provision prescribing the period of limitation for reference of industrial dispute for arbitration to the Industrial Court by an employer or a registered and approved union of employees under Section 73A of the said Act is mandatory or directory in character?

(ii) Whether Section 29(2) of the Limitation Act, 1963 is excluded from its applicability to the matters arising before the Industrial Court under Section 73A of the said Act?

(iii) In case the answer to the second question is in the negative, then whether the respondent had disclosed sufficient cause for condonation of delay in filing the reference before the Industrial Court?

5. The Section 73A of the said Act deals with reference to arbitration either by the employer or the registered and approved union of the employees. It also provides for certain pre-conditions to enable the Industrial Court to entertain such disputes". It provides thus :--

"73A. Reference to arbitration by unions. -- Notwithstanding anything contained in this Act an employer or a registered union which is a representative of employees and which is also an approved union may refer any industrial dispute for arbitration to the Industrial Court:

Provided that no such dispute shall be referred to the Industrial Court,

(i) after two months from the date of the completion of the proceedings before the Conciliator;

(ii) where the registered union or the employer, as the case may be, has offered in writing before the Conciliator to submit the dispute to arbitration under this Act and the employer or the union, as the case may be, has not agreed to do so;

(iii) unless the dispute is first submitted to the Conciliator and the conciliation proceedings are completed or the Conciliator certifies that the dispute is not capable of being settled by conciliation :

Provided further that no such dispute shall be referred to the Industrial Court where under any provision of this Act it is required to be referred to the Labour Court for its decision."

The above quoted provision obviously discloses four pre-conditions to enable the Industrial Court to entertain an industrial dispute for arbitration at the instance of the employer or the union of the employees. One of such conditions relates to the period of limitation and the same prescribes the period of two months from the date of completion of the proceedings before the conciliator. It is also to be noted that the pre-conditions including that of the period of limitation are in the form of proviso in negative form. The normal rule of construction of the proviso is that the same acts as an exception to the main body of the provision of law. The Apex Court in Kedarnath Jute Manufacturing Co. Ltd. v. The Commercial Tax Officer and others, had held that "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it" and followed in Kush Saigal and Ors. v. M. C. Miner and others, holding that "the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment." Being so, a statutory provision, accompanied by a proviso disclosing exception to the main body of such provision, should be construed to make the exception carved out by the proviso to be necessary and a construction which would make the exception unnecessary or redundant has to be avoided (vide: Kaviraj Pandit Durga Dutt Sharma v. Novaratna Pharmaceutical Laboratories, and Kedarnath J. M. Co. (supra)). It is well-settled that such a proviso when found in the negative form, it would itself reveal the mandate of the Legislature imbibed in such provision of law which in turn would disclose the provision to be of mandatory in nature. The Apex Court in Haridwar Singh v. Begum Sumbrui and others, had held that "Prohibitive or negative" words can rarely be directory and are indicative of intent that the provision is to be mandatory". Further in Lachmi Narain etc. v. Union of India and Ors., , it was ruled that "If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory." The Apex Court in Nasiruddin and Ors. v. Sita Ram Agarwal (supra) had clearly held that:--

"It is equally well-settled that when negative words are used the Courts will presume that the intention of the legislature was that the provisions are mandatory in character."

6. The Clause (i) of the proviso to Section 73A of the said Act mandates to the employer or the union of the employees, desiring to make reference of an industrial dispute for arbitration proceedings, to refer the same to the Industrial Court within the period of two months from the date of conclusion of the conciliation proceedings. It is equally well-settled that when a period of limitation is prescribed for the performance of an act by a person or body of persons, then the said act is required to be performed within the time prescribed for the same. The Apex Court in Nasiruddin's case has further observed :--

"It is well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences thereof are specified."

Needless to say that the period prescribed under the proviso to Section 73A does not relate to the performance of public function but it is essentially in relation to an act to be performed by a private person or a body of private persons.

7. It is also to be noted that the mandate of two months period comprised under the proviso in the negative form is also accompanied by the word "shall". It is true that, at times, the word "shall" could also mean "may". However, taking into consideration the context in which the word "shall" has been used in the said proviso, there is hardly any scope to contend that the word "shall" in the said proviso be read as "may". In Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and Ors., , it was held by the Apex Court that "the use of the word "shall" or "may" is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous no more is necessary then to expound those words in their natural and ordinary sense, the words themselves in such case but declaring the intention of the Legislature". It is not a matter merely relating to procedural aspect, as sought to be argued. "Taking into consideration all these aspects of the matter, the provision relating to requirement of compliance of the period of two months for the purpose or reference of an industrial dispute for arbitration to the Industrial Court under Section 73A is to be held as mandatory in character.

8. The Apex Court in The Municipal Corporation, of Greater Bombay v. The B.E.S.T. Workers Union (supra), while interpreting the provision of Section 17(1) of the Industrial Disputes Act, 1947 in relation to the requirement of publication of the Award, has held that the same is merely directory and not mandatory. While holding so, the Apex Court had also taken note of the word "shall" used in the said expression. However, considering the object behind the provision that the limit was fixed only to ensure that the publication of the Award was not unnecessarily held up, or delayed, a time limit was prescribed for publication of the Award and in those circumstances it was observed that the publication of the Award beyond such time would not render the Award to be invalid. It is also to be noted that Section 17(1) of the Industrial Disputes Act, 1947 merely provided that the Award shall be published in such a manner as the appropriate Government thinks fit within a period of 30 days from the date of its receipt by the appropriate Government. It did not contain the words in negative form. Besides, that was a requirement to be complied with by the public functionaries in public interest. Considering all these factors, the decision of the Apex Court in the Municipal Corporation's case (supra) is of no assistance to the respondent to contend that the requirements prescribed under Section 73A are of directory nature.

9. The Apex Court in the said Municipal Corporation's case has also held that the provision of Section 78(1)A(i) of the said Act are not mandatory but directory. In that regard the Apex Court has clearly observed that the said provision merely emphasises that an employer should be vigilant in taking disciplinary action against an employee for misconduct, once the misconduct comes to his notice and that, as far as possible, the proceedings including the final orders imposing punishment should be completed within a period of six months. It was further held that the said provision neither impinge upon either the rights of an employer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry conducted against him and if the employer is able to satisfy the Tribunal about the reasons for the delay, certainly the Tribunal would not act Mechanically in setting aside such order merely on the ground of lapse of the period of six months. Apart from the said decision of the Apex Court regarding the directory character of the provision contained in Section 17 in relation to publication of the Award, Section 17A clearly empowers the Government even to postpone the enforceability of the Award. Otherwise, in terms of Sub-section (2) of Section 17 r/w Section 17A(1) the Award would become enforceable on expiry of the period of 30 days from the date of publication. This provision clearly reveals that the period prescribed for publication of an Award can by no stretch of imagination be held to be mandatory in nature. Hence the decision of the Apex Court in the Municipal Corporation's case is of no help to the respondent to contend that Section 73A is of directory character.

10. The Section 29(2) of the Limitation Act, 1963 provides that "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local laws, the provision contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." Perusal of the said Act would disclose that the same nowhere refers to the provisions of Section 29(2) of the Limitation Act, 1963. Does it mean that the applicability of the provisions from Sections 4 to 24 of the Limitation Act, 1963 to the matters coming up before the Industrial Court under the said Act is not excluded? The Apex Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, , while dealing with the matter arising out of election petition under the Representation of the People Act, 1951 and the issue pertaining to the applicability of the Limitation Act, 1963 to such cases, held thus :--

"Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition."

Further while dealing with the issue as to whether the words "expressly excluded" in Section 29(2) of the Limitation Act, 1963 require an express reference to be made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded, it was held that:--

"As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."

Evidently therefore, mere absence of a provision in a special or local law regarding non-applicability of Section 29(2) or Sections 4 to 24 of the Limitation Act, 1963 to the proceedings arising under such special or local law, by itself would not help to conclude about the exclusion of applicability of the provisions of Sections 4 to 24 of the Limitation Act, 1963 to the matters arising under such special or local law and what is necessary, is to examine the scheme of such special or local law and ascertain to what extent the provisions and the scheme of special or local law and the nature of the subject-matter governed by such law excludes the applicability of Sections 4 to 24 of the Limitation Act to the matters arising under such special or local law.

11. Considering the said law laid down by the Apex Court in Hukumdev Narain Yadav v. Lalit Narain Mishra (supra), if one examines the provisions and the scheme of the said Act, it is apparent that wherever the Legislature has thought it fit to allow the parties to enlarge the period of limitation by satisfying the Labour Court or the Industrial Court of sufficient reason for not approaching such Court within specified period under the said Act, the provisions are made for exercise of discretionary powers by such Courts to condone delay in such cases, while excluding certain provisions from ambit of exercise of such discretion by the Labour Court or the Industrial Court as well as leaving no room for the parties to enlarge the period prescribed for performance of their acts. In case of conciliation proceedings, while permitting the Government to extend the period for completion of such proceedings, liberty is given even to the parties to agree for extension of period for completion of the conciliation proceedings. Even in relation to various disputes which can be brought before the Labour Court under Section 78 of the said Act, specific provision is to be found in Section 79(3) and (4) for condonation of delay while prescribing the period for referring such dispute. Similar provisions are to be found in relation to some other acts required to be performed under the said Act empowering the Court to condone the delay in some cases, while abstaining to give such power in other matters. As rightly submitted by the learned Advocate for the petitioner the said Act to an extent is a complete Code in itself and nowhere discloses applicability of the provision of Sections 4 to 24 of the Limitation Act, 1963 and on the contrary, the provisions of the said Act reveal exclusion of the applicability of those provisions to the cases arising under the said Act.

12. It is also to be noted that the Section 73A was introduced in the said Act by Act No. 63 of 1953. The Section 79(3) of the said Act which related to the period of limitation within which an application under Section 78 of the said Act can be filed was amended in 1977 by introducing proviso thereto, empowering the Labour Court to condone the delay for sufficient reasons. Yet, no such amendment has been brought about in relation to the limitation prescribed for reference under Section 73A, which is there in the statute book since 1953.

13. The contention regarding applicability of the provisions of Section 5 of the Limitation Act, 1963 is, however, sought to be strenuously argued by referring to the decision of two Judges' Bench of the Apex Court in The State of Maharashtra v. Labour Law Practitioners' Association and Ors. (supra) while contending that the Labour Court or the Industrial Court is a Court dealing with disputes of civil nature and therefore they are Courts for the purpose of applicability of the provisions of the Limitation Act, 1963. Undoubtedly, the provision of Section 5 of the Limitation Act, 1963 would apply to all the Civil Courts. It is also true that the Apex Court in Labour Law Practitioners' Association's case (supra) has held that "The Labour Court adjudicates upon disputes that, had it not been for the Industrial Disputes Act, the Bombay Industrial Relations Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, would have been within the jurisdiction of the ordinary Civil Courts to decide, although the ordinary Civil Courts may not be able to grant all the reliefs that are contemplated by these Acts. The Labour Courts are, therefore, Courts and decide disputes that are civil in nature." The said ruling however was given in the case while dealing with the question as to whether a Court and a Presiding Officer of the Labour Court or the Industrial Court can be said to hold a post in the judicial service of the State as defined in Article 236 of the Constitution of India. While dealing with the above issue, the Apex Court had ruled that "Article 235 provides that the control over District Courts and Courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression "District Judge" extensively as covering judges of a City Civil Court etc., as earlier set out, and the expression "Judicial Service" as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District Judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court Judges is required to be made in accordance with Article 234 of the Constitution." Apparently, the observations of the Apex Court regarding the Labour Courts being the Courts dealing with disputes of civil nature are strictly in relation to the issue pertaining to the "judicial service" rendered by the Industrial and Labour Courts within the meaning of the said expression in relation to control of the High Court over such Courts. It should not be forgotten that the ratio of a decision should be understood bearing in mind the law laid down by the Apex Court in Union of India v. Dhanwantidevi, .

14. In Nityanand M. Joshi and Anr. v. The Life Insurance Corporation of India and others, , delivered by two Judges' Bench of the Apex Court, while dealing with the applicability of the Article 137 of the Limitation Act, 1963, it was held that :--

"It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts, and that the Labour Court is not a Court within the Indian Limitation Act, 1963."

15. Similarly, in The Raipur Manufacturing Co. Ltd. v. Okhabhai Devrajbhai Patni, , a three Judges' Bench of the Apex Court while dealing with the matter relating to construction of certain provisions of the said Act, namely, Section 78(1)A(a)(i) read with Section 79(3)(b) and Section 42(4) of the said Act read with Rule 53(1) of the Rules framed under the said Act and referring to the issue of power of the Labour Court regarding the condonation of delay in those matters, it was held that:--

"The relief that he asked for from the Labour Court as well as the Industrial Court was condonation of delay but so far as this relief is concerned, the Labour Court had unfortunately no power to condone the delay and hence his request was rejected."

Apparently the Apex Court had held that in the absence of specific power to condone the delay neither the Labour Court nor the Industrial Court exercising jurisdiction under Section 78(1)A(a)(i) read with Section 79(3)(a) of the said Act had jurisdiction or power to condone the delay. Undisputedly the powers of the Labour Court in that regard were amended by the Maharashtra Act 47 of 1977 whereby a proviso was added to Sub-section (3) of Section 79 empowering the Labour Court to admit such applications even after the expiry of the period for sufficient reasons. .The decision in The Raipur Manufacturing Co. Ltd. v. Okhabhai Deverajbhai Patni (supra) was delivered on 26-11-1975, much prior to the introduction of the proviso to Section 79(3) of the said Act. Nevertheless, it lays down the law that in the absence of specific power for condonation of delay, the Labour Court could not have condoned the delay.

16. Besides, as rightly submitted by the learned Advocate for the petitioner, the Apex Court in Prakash H. Jain v. Marie Fernandes (Ms) (supra), while dealing with the issue as to whether the appellant before the Apex Court who was able to secure a favourable order from the competent authority under the Maharashtra Rent Control Act, 1999 condoning the delay in filing the application to defend the eviction proceedings and consequent leave to defend, but had suffered an order against him before the learned single Judge of this Court and had preferred appeal therefore, has held thus :--

"Question of the nature raised before us have to be considered not only on the nature and character of the authority, whether it is Court or not but also on the nature of powers conferred on such authority or Court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein. There is no such thing as any inherent power of Court to condone delay in filing proceedings before a Court/authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other party under the statute concerned."

17. The Apex Court in Nasiruddin's case (supra) has also held that "Whenever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so." It was further held that:--

"The Court can condone the default only when the statute confers such a power on the Court and not otherwise."

18. The respondent has also placed reliance in the decision the Madhya Bharat High Court in Jiyajirao Cotton Mills Ltd. v. The Chairman Industrial Court, Madhya Bharat, and Anr. (supra). The decision is not on the point in issue, besides it no way helps to buttress the contentions on behalf of the respondent. It rather supports the view that I am taking in the matter. Firstly it has been held therein that the Industrial Court, though it is called a Court, it is only an arbitrational tribunal and "arbitration" is a term which taken by itself connotes a process for the settlement of dispute by submitting them to the decision of an arbitrator, and secondly that the right conferred upon the representative union to make reference under Section 73A is not a substantive right.

19. The view that I am taking in this matter, also find support from the decision of the Division Bench of the Gujarat High Court in Asoka Mills Ltd., Ahmedabad v. Nagindas Parsottamdas Modi and Anr., reported in 1994 Lab.I.C. 1337.

20. In this regard attention is also drawn to Section 68 of the said Act. It provides that the proceedings in arbitration under the Chapter XI, which include Section 73A, shall be in accordance with the provisions of the Arbitration Act, 1940, insofar as they are applicable and the powers which are exercisable by a Civil Court under the said provisions, shall be exercisable by a Labour Court and the Industrial Court. It is sought to be contended that since the Industrial Court or the Labour Court is empowered to exercise the powers exercisable by the Civil Court, and as the Civil Court is entitled to exercise the powers under Section 5 of the Limitation Act, 1963, it would mean that the Industrial Court while entertaining the reference under Section 73A would be entitled to exercise the powers under Section 5 of the Limitation Act, 1963. Proper reading of Section 68 would disclose that the provisions of the Arbitration Act, 1940 have been made applicable to the proceedings in arbitration under the Chapter XI of the said Act, In other words, the provisions of the Arbitration Act, 1940 would apply at the stage when the proceedings "in arbitration" commences and not at the stage when reference to arbitration is sought for. The reference for arbitration is a stage prior to the commencement of the proceedings "in arbitration" within the meaning of the said expression under the said provisions of law. So far as the powers of the Civil Court are concerned, undoubtedly the provision empowers the Industrial Court to exercise those powers in such matters. However, such powers are restricted to the extent they are available to the Civil Court under the Arbitration Act, 1940 and this is evident from the expression "exercisable by the Civil Court under the said provisions" in the said Section 68. The expression "under the said provision" clearly refers to the provisions of the Arbitration Act, 1940. In other words, the Industrial Court in the matter arising under the Chapter XI of the said Act, is though empowered to exercise the powers of Civil Court, such powers are limited to the extent they are available to the Civil Court under the Arbitration Act, 1940 and not all the powers of the Civil Court.

21. What are the powers which the Civil Court can exercise under the Arbitration Act, 1940? The Section 41(b) thereof clearly specifies that the Court shall have, for the purpose of, and in relation to arbitration proceedings, the same power of making orders in respect of any of the matters set out in the second schedule as it has for the purpose of, and in relation to proceedings before the Court. The second schedule thereof enumerates five subjects in relation to the powers of the Court under Section 41(b) and the same does not include power for condonation of delay. In other words, the power which the Civil Court can exercise under the Arbitration Act, 1940 is confined to those enumerated under the second schedule thereof and not relating to any other subject, and secondly that such exercise of powers must be "for the purpose of and in relation to the arbitration proceedings" and not otherwise. The Apex Court while reiterating its earlier decision in Union of India v. Raman Iron Foundry, , to the effect that the Court has power under Section 41(b) read with the second schedule to issue interim injunction but such interim injunction can only be "for the purpose of and in relation to arbitration proceedings", in H. M. Kamaluddin Ansari and Co. v. Union of India, , held that "It cannot be said that as Clause (a) of Section 41 empowers the Court to pass interim injunction the Court can pass injunction even if the conditions of Clause (b) of Section 41 were not satisfied. Such construction will render Clause (b) of Section 41 otiose." The subject relating to the condonation of delay being the parties' inability to approach the Industrial Court with the reference application, the same cannot be said to be 'for the purpose of and in relation to the arbitration proceedings itself. Therefore the provisions contained in Section 68 of the said Act read with Section 41(b) of the Arbitration Act, 1940 would not empower the Industrial Court to import the provisions of the Limitation Act, 1963 to the proceedings sought to be initiated under Section 73A of the said Act.

22. As regards the issue concerning construction of Section 68 of the said Act, the learned Advocate for the petitioner, drawing attention to the decision of the learned single Judge in Anant Bapu Kharat v. General Manager, B.E.S.T. Undertaking and Anr, reported in 2002 I CLR 350 has sought to contend that in the absence of specific power for condonation of delay in relation to the applications for reference under Section 73A, it cannot be presumed that the Industrial Court will have such powers merely on the basis of Section 68 of the said Act, while the learned Advocate for the respondent, placing reliance upon the decision of the Division Bench of this. Court in The Textile Labour Association, Ahmedabad v. The Labour Appellate Tribunal of India and Ors., has submitted that the Industrial Court is empowered to exercise all the powers of the Civil Courts in view of the provisions contained in Section 68 of the said Act. As regards the decision of the learned single Judge in Anant Bapu Kharat (supra), the question for consideration therein was that whether an approach letter under Section 42(4) of the said Act could have been sent after the period prescribed under Rule 53(1) of the BIR Rules and considering the facts of the case, it was held that the approach notice was not given within three months from the date of dismissal of the Second Appeal against the order of termination and therefore, it was held to be beyond the period of limitation prescribed under Section 42(4) of the said Act. Apparently, the decision was purely on the facts of the case and does not lay down any law as such. The Division Bench in the Textile Labour Association's (supra), on analysis of Section 68 of the said Act, has held that all the provisions of the Arbitration Act, insofar as they are applicable have been made applicable to arbitrations under Chapter XI of the said Act and the powers which a Civil Court exercises in the Arbitration Act are to be exercised by a Labour Court and the Industrial Court. It was also observed that:--

"...... the Legislature, instead of setting up a separate machinery for arbitration under Chapter XI incorporated the provision of the Arbitration Act, 1946. It is true that if we consider any provision of the Arbitration Act it would be necessary to inquire whether that particular provision is applicable looking to the scheme of the Bombay Industrial Relations Act, 1946."

At the same time, it was clearly ruled that:--

"If any provision is inconsistent with the scheme of the Bombay Industrial Relations Act, 1946, then the provision of the Arbitration Act to that extent would not be applicable."

Apparently, the Division Bench has clearly held that the provisions of the Arbitration Act, 1940 would apply to arbitrations under Chapter XI of the said Act to the extent the provisions of the Arbitration Act are not inconsistent with the scheme of the said Act. In other words, the applicability of the provisions of the Arbitration Act, 1940 to the proceedings under Chapter XI of the said Act would depend upon the scheme of the said Act and the provisions therein and therefore, while considering the contention about the applicability of the provisions of the Limitation Act to such proceedings or the powers of the Civil Court in the matters arising under the said Chapter XI of the said Act, the provisions of the said Act will have to be considered and the provisions of the Arbitration Act, 1940 could be applied to such proceedings to the extent they are not inconsistent with such provisions of the said Act.

23. The learned Advocate for the respondent, however, referring to Section 37 of the Arbitration Act, 1940 has submitted that since in terms of the said provisions contained in Section 37, the Limitation Act is applicable to arbitrations as they apply to the proceedings in the Court, that therefore, the provisions of the Limitation Act would apply to the proceedings under Section 20 of the Arbitration Act, 1940 and considering that the provisions of Section 73A of the said Act are similar to those of Section 20 of the Arbitration Act, 1940, applying the provisions of Section 68 of the said Act to such proceedings, the provisions of the Limitation Act would also apply to the proceedings under Section 73A. Reliance is placed in that connection in the decision of the Apex Court in Wazir Chand Mahajan and Anr. v. The Union of India, , Undoubtedly, Section 37(1) of the Arbitration Act, 1948 provides that all the provisions of the Indian Limitation Act, 1963 shall apply to arbitrations as they apply to proceedings in Court. In fact, in the decision of the Apex Court relied upon by the learned Advocate for the respondent in Wazir Chand Mahajan's case (supra) it has been clearly held that the said clause does not govern an application for filing an arbitration agreement under Section 20 of the Arbitration Act, 1940, as the said clause deals only with the authority of the Arbitrator to deal with and decide any dispute referred to him and it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the Arbitrator. Evidently, the Apex Court has held that the provisions contained in Section 37(1) of the Arbitration Act, 1940 nowhere deals about the applicability of the provisions of the Limitation Act to the proceedings before the Court under Section 20 of the Arbitration Act, 1940. At the same time, the Apex Court has held that the Court dealing with an application under Section 20 has not to deal with the question as to whether the claim of a party to the arbitration agreement is barred by the law of limitation and the Court must be concerned about the existence of a written agreement which is valid and subsisting and which has been executed before institution of any suit and also that a dispute has been arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. Indeed, plain reading of Section 20(1) read with subsections (3) and (4) of the Arbitration Act would disclose that the Court dealing with such application is not concerned with the point of bar of law of limitation and the said point is left to be decided in the arbitration proceedings to which the provisions of the Limitation Act, 1963 would apply by virtue of Section 37(1) of the Arbitration Act, 1940. The adjudication before the Civil Court under Section 20 in an application for filing of the arbitration agreement in the Court is restricted to the issue pertaining to the existence of written agreement, whether it is valid and subsisting, whether it was executed before the institution of any suit, whether the dispute has arisen with regard to the subject-matter of the agreement, and whether the dispute has arisen or the agreement was executed within the jurisdiction of the Court dealing with such application. Even assuming that the provisions of the Limitation Act were to apply to the proceedings under Section 20 of the Arbitration Act, 1940, that itself would not enure to the benefit of the respondent to contend that on account of Section 68 of the said Act the provisions of the Limitation Act, 1963 would also apply to the proceedings under Section 73A of the said Act. The application under Section 20 of the Arbitration Act, 1940 is essentially to a Court which is clearly defined as a Civil Court under Section 2(c) of the Arbitration Act, 1940, whereas the proceedings under Section 73A of the said Act lie before the Industrial Court which is not a Civil Court to which the provisions of the Limitation Act would apply. Besides, in contrast to the provisions under Section 20 of the Arbitration Act, the Industrial Court while considering the application for reference under Section 73A of the said Act has necessarily to consider the issue of limitation of two months in terms of the Clause (i) of the proviso to Section 73A of the said Act. This basic difference between Section 20 of the Arbitration Act, 1940 and Section 73A of the said Act is sufficient to reject the contentions on behalf of the respondent. The decision of the Apex Court in Wazir Chand Mahajan's case, therefore, is of no assistance to the respondent, rather it supports the view that I am taking in the matter.

24. The Section 73A, while it mandates the reference to be made within two months from the date of completion of the procedure before the conciliator, at the same time it does not empower the Industrial Court to condone the delay in referring every such industrial dispute under the said provision of law. Whether it is the employer or the union of employees desiring the arbitration of the industrial dispute under Section 73A, has to be vigilant and approach the Court within the time specified under the said provision of law, otherwise neither of them can avail the remedy of reference of the industrial dispute for arbitration under Section 73A; however, it is not that they are left remediless; other remedies are available under the same statute for the settlement or adjudication of the disputes. It is therefore clear that the provisions of the Limitation Act, 1963, particularly Section 5 thereof, do not apply to the proceedings under Section 73A of the said Act.

25. The fall out of the above discussion is that the first question for consideration is to be answered that the provision relating to the limitation period in Section 73A of the said Act is mandatory and not directory in character. The second question is to be answered in the affirmative and to be held that the provisions of the Limitation Act, 1963 do not apply to a reference under Section 73A of the said Act. In this view of the matter, there is no occasion to consider the third question formulated above.

26. Reverting to the facts of the case in hand, it is undisputed fact that the conciliation proceedings before the conciliator failed on 19-9-2002 and the dispute was sought to be referred by the respondent No. 1, the employer, on 3-1-2003. Apparently it was beyond the period of two months from the date of conclusion of the proceedings before the conciliator, and therefore an application for condonation of delay was filed by the respondent and the Industrial Tribunal has condoned the delay by the impugned order. As already held above, the Court entertaining reference under Section 73A of the said Act has no power to condone the delay and therefore the impugned order is bad in law and therefore cannot be sustained and is liable to be set aside.

27. In the result, the petition succeeds. The impugned order is quashed and set aside. The application under Section 73A of the said Act filed by the respondent in the case in hand is hereby dismissed. The rule is made absolute in above terms with no order as to costs.