SCA/7623/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7623 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= AMITKUMAR JITENDRABHAI JOSHI - Petitioner(s) Versus BHAVNAGAR DISTRICT CO-OPERATI-VE BANK LIMITED, & 1 - Respondent(s) ========================================================= Appearance : MR TR MISHRA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR SACHIN D VASAVADA for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 14/07/2008 ORAL JUDGMENT 1. The petitioner has preferred this petition against order dated 28.11.2005 passed by the labour court and the order dated 30.12.2006 passed by the industrial court whereby, the courts have disallowed the application preferred by the present petitioner SCA/7623/2007 2/19 JUDGMENT on the ground that the same was time barred and was preferred after the period of limitation prescribed under the Bombay Industrial Relations Act, 1946 [“BIR Act” for short]. The respondent is an establishment, which is governed by the provisions of the BIR Act and the petitioner was, at the relevant time, an employee of the respondent. 2. Mr. Mishra appears for the petitioner and Mr. Vasavada appears for the respondents. 3. The short facts involved in and giving rise to this petition are that the petitioner was working as a peon in the respondent establishment since last about 2 years and his service was, as per the facts placed by the petitioner before the labour court, terminated w.e.f. 12.4.2000 without following procedure prescribed by law. Aggrieved by the said action, the respondent served an application, commonly known as “Approach Letter,” on 11.9.2000 (i.e. 5 months after the alleged termination) seeking reinstatement. Such an application is a statutory requirement under section 42(4) of the BIR Act. SCA/7623/2007 3/19 JUDGMENT 3.1 The petitioner claims that since no response from respondent was received he forwarded another application (hereinafter referred to as “Approach Letter” for sake of convenience) on 3.3.2001 i.e. almost 10 ½ months after the alleged termination. 3.2 It is the case of the petitioner that the said second Approach Letter also did not get any response hence on 1.5.2001 he filed an application in the labour court under section 78 read with section 79 of the BIR Act which was registered as BIR Application No.5 of 2001. 3.3 The respondent filed its written statement and objected the maintainability of the said application by raising preliminary contention that in view of the provision under section 42(4) read with Rule 53(1) & (2) the said application No.5 of 2001 was time barred and therefore, not maintainable and the court had no jurisdiction to entertain such time barred application. SCA/7623/2007 4/19 JUDGMENT 3.4 After hearing the parties the labour court accepted the said preliminary objection of respondent and rejected the said application as time barred. The petitioner preferred appeal under section 84 of the BIR Act and the Industrial Court rejected the appeal and confirmed the judgment of the labour court. Aggrieved by the said orders, the petitioner is now before this court. 4. Mr. Mishra submitted that the action of the respondents was not justified and was not legally sustainable. He also submitted that the labour court and the industrial court have erred in calculating the limitation and also erred in construing and applying the provisions under sections 42(4), 78 and 79 read with Rule 53(1) and 53(2). He claimed that the application No.5 of 2001 deserves to be treated as “within prescribed time limit.” However, Mr. Mishra could not assign any convincing reason to successfully assail the order passed by the labour court holding that the said BIR Application No.5 of 2001 was not complying with the provisions under the aforesaid sections 42(4), 78 and 79 of the BIR Act SCA/7623/2007 5/19 JUDGMENT read with rule-53(1) and 53(2) and the same was preferred beyond the period of limitation prescribed by the BIR Act. 5. So as to appreciate the judgments of the courts and the grievance of the petitioner, it is necessary to take into consideration the provision under the aforesaid sections. The said provisions reads thus:- “Section-42(4) :-Any employee [or a representative union] desiring a change in respect of (i) any order passed by [the] employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III, shall make an application to the Labour Court: Provided that no such application shall lie unless the employee [or a representative union] has in the prescribed manner approached [the] employer with a request for SCA/7623/2007 6/19 JUDGMENT the change and no agreement has been arrived in respect of the change within the prescribed period. Rule-53(1) Any employee or a Representative Union desiring a change in respect of (i) any order passed by the employer concerned under Standing Orders or (ii) any industrial matter arising out of the application or interpretation of Standing Orders or (iii) an industrial matter specified in Schedule III shall make an application in writing to the employer. An application for change in respect of an order passed by the employer under standing orders shall be made within a period of six months from the date of such order. Where such application is made by an employee it may be made to the employer direct or through the concerned Labour Officer for the local area or the representative of employees concerned. A copy of the application shall be forwarded to the Commissioner of Labour and in cases where such application is not made through the Labour Officer for the local area to that officer. Rule-53(2) Where an application has been made by an employee under sub-rule SCA/7623/2007 7/19 JUDGMENT (1) the employer and the employee may arrive at an agreement within fifteen days of the receipt of the application by the employer or within such further period as may be mutually fixed by the employer and the employee or the Labour Officer for the local area or the representative of employees as the case may be.” Section – 78. (1) Labour Court shall have power to - A. decide - (a) dispute regarding - (i) the propriety or legality of an order passed by an employer acting or purporting to act under the standing order; (ii) the application and interpreta -tion of standing orders; (iii) any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III and matters arising out of such change; (b) industrial dispute - (i) referred to it under section 71 or 72; SCA/7623/2007 8/19 JUDGMENT (ii) in respect of which it is appointed as the arbitrator by a submission; (c) whether a strike, lock-out, [closure, stoppage] or any change is illegal under this Act; B. try offences punishable under this Act and where the payment of compensation on conviction for an offence is provided for, determine the compensation and order its payment; C. require any employer to - (a) withdraw any change which is held by it to be illegal, or (b) carry out any change provided such change is a matter in issue in any proceeding before it under this Act. (2) Every offence punishable under this Act shall be tried by the Labour Court within the local limits of whose jurisdiction it was committed. Explanation:- A dispute faling under clause (a) of paragraph A of sub-section (I) shall be deemed to have arisen if within the SCA/7623/2007 9/19 JUDGMENT period prescribed under the proviso to sub- section (4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso. Section – 79 (1) Proceedings before a Labour Court in respect of disputes falling under clause (a) of paragraph A of sub- section (1) of section 78 shall be commenced on an application made by any of the parties to the dispute, a special application under sub-section (3) of section 52 or an application by the Labour Officer [or a representative union] and proceeding in respect of a matter falling under clause © of the said paragraph A on an application made by any employer or employee directly affected or the Labour Court [or a representative Union]. (2) Every application under sub-section (1) shall be made in the prescribed form and manner. (3) An application in respect of a dispute falling under clause (a) of paragraph A of sub-section (1) of section 78 shall be made, - (a) If it is a dispute falling under sub-clause (i) or (ii) of the said clause, SCA/7623/2007 10/19 JUDGMENT within three months of the arising of he dispute; (b) If it is a dispute falling under sub-clause (iii) of the said clause, within three months of the employee concerned having last approached the employer under the proviso to sub-section (4) of section 42. (4) An application in respect of a matter falling under clause © of paragraph A of sub-section 78 shall be made within [six months] of the commencement of the strike, [lock-out, closure or stoppage] or of the making of the illegal change, as the case may be : [Provided that the Labour Court may, for sufficient reasons, admit any application for a declaration that a change is illegal under this act, after the expiry of [six months] from the date on which change was made; Provided further that when an application is admitted after the expiry of [six months] under the preceding proviso the employer who made the change shall not be liable to the penalty provided under section 100].” SCA/7623/2007 11/19 JUDGMENT 6. As per the said provision under section 42(4), it is necessary to fist make an application (i.e. the “approach letter”) to the employer when employee (or the representative union) desires change in respect of (i) order passed under standing order, or (ii) about industrial matter arising from application and interpretation of standing orders, or (iii) any matter specified under Schedule III. As per Rule 53(1) such approach letter, to the employer, must be issued within outer limit of 6 months from the date of order under standing order where application is in respect of order under standing order. Further, Rule 53(2) provides that after the application (approach letter) is made, 15 days period has to be allowed for settlement (and by mutual agreement the period can be, if both parties so desire, extended beyond 15 days) and if no settlement is arrived at then only dispute can be said to have arisen, as per the explanation to section 78 read with proviso of section 42(4), for the purpose of sections 78 and 79, and only then an application to the labour court, in respect of any of the aforesaid matters, can be made, SCA/7623/2007 12/19 JUDGMENT but within time limit prescribed for the said purpose. 7. It is only upon compliance with the aforesaid requirements that application to the labour court / Industrial Court can be made, however, it should be filed within 3 months, from the date when dispute arises in the event the matter pertains to clause (i) or (ii) of Section 78(1)(A)(a), and if the change is desired in respect of subject falling under section 78 (1)(A)(a)(iii) then 3 months period has to be considered from the date when the employer is last approached by the employee / union. Thus, the fact situation of this case has to be considered in light of the aforesaid provisions. 8. In present case, the termination of petitioner's service was terminated on 12.4.2000 whereas the approach letter was given on 11.9.2000. Hence the approach letter was issued within prescribed time limit. Then there would be 15 days “settlement period” which would mean until 26.9.2000 the settlement can be arrived at, or there must be mutual SCA/7623/2007 13/19 JUDGMENT agreement to extend the settlement period, and in case no such mutual agreement for extension of time is arrived at, period of 3 months time would start on expiry of 15th day. It is not in dispute that in present case there was no mutual agreement for extension of settlement period. Hence, the 3 months' period would start from 27.9.2000 and that therefore the application to the labour court was required to be made before or on 26.12.2000 but the application No.5 of 2001 came to be filed on 1.5.2001 thus after delay of almost 4 months. Hence, it was time barred when filed. 9. The petitioner, however, appears to be banking on the second approach letter i.e. approach letter dated 3.3.2001 and it is claimed that the 3 months' period would start from the said second approach letter and since the second approach letter was given on 3.3.2001, the application before the labour court is filed within 3 months and thus it is within limitation as it was filed on 1.5.2001. This aspect is considered and decided by the labour court and industrial court in light of the judgment of the SCA/7623/2007 14/19 JUDGMENT Hon'ble High Court of Gujarat reported in 1988 (1) GLR 507, wherein, it is held “Rule 53(1) prescribes a period of six months for forwarding an application to the employer. The employee can forward his application at any time before the expiry of the said period. The period prescribed by Rule 53(2) has reference to the date of receipt of the application. According to that provision an agreement must be reached between the employee and the employer within a period of two weeks from the date of the receipt of the application. Therefore, once the application is forwarded to the employer and the same is received by him, the period of prescribed under Rule 53(1) gets exhausted and the period prescribed under Rule 53(2) begins to operate from the date of receipt of the application. Therefore, the submission of Mr. Uppal that notwithstanding the fact that the petitioner sent his application on the very next day which the employer must have received in ordinary course within a couple of days, the remaining period out of the total period of six moths prescribed by Rule 53(1) would still be available to the petitioner cannot be accepted as correct. Once the application is received SCA/7623/2007 15/19 JUDGMENT whether it is within ten days of the passing of the order or five months of the passing of the order, the period of six months gets exhausted and the period of fifteen days prescribed by Rule 53(2) begins to run. If no agreement is arrived at between the employer and the employee within fifteen days and if the time is not extended, a dispute comes into existence within the meaning of Sec.79(3) of the Act. The period of limitation for filing an application for a decision on the said decision is three months of the arising of the dispute. In the absence of a specific provision for extension of this period of three months, we must hold that the application filed by the petitioner after the expiry of the said period of 15th May 1984 was clearly barred by limitation. We are, therefore, of the opinion that the conclusion reached by the Labour Court on the question of limitation is unassailable.” In light of the said observation by the court the labour court has considered and held that, if the date of said second approach letter is taken into account then the said second approach letter would be time barred inasmuch as the said second approach letter was given after SCA/7623/2007 16/19 JUDGMENT expiry of 6 months since it was issued on 3.3.2001 i.e. after almost 10 ½ months after the date of alleged termination. Thus, even if the application No.5 of 2001 came to be filed before expiry of 3 months from the date of the said last / second approach letter (which is dated 3.3.2001) then also, the said application would not be maintainable considering the aforesaid delay in issuing the approach letter. 10. By now, it is a well settled legal position that the labour court constituted under the BIR Act does not have power to condone the delay and that therefore, it cannot entertain (i) an application which is filed after the expiry of period of limitation prescribed by the statute, or (ii) an approach letter which is issued after prescribed time, or (iii) an application filed pursuant to a time barred approach letter and that an application which is not preferred within 6 months from the date of the approach letter would be time barred. 11. In this regard the Hon'ble Apex Court, has in SCA/7623/2007 17/19 JUDGMENT the case of Raipur Manufacturing Co.Limited V/s. Okhabai Davarajbhai Patni reported in 1976 (1) LLJ 215 held that, “It will be seen a combined reading of these provisions that an application to the Labour Court under S.79(1) in respect of dispute falling under S.78(1)(A)(a)(i) must be made within three months from the arising of the dispute and the dispute would be deemed to have arisen if, within a period of 15 days from the receipt of the letter of approach under S.42, sub-s.(4) by the employer or within such further period as may be mutually fixed by the employer and the employee, no agreement is arrived at in respect of the change desired by the employee.” In paragraph 6 of the said judgment the Hon'ble Apex Court also held that, “...... It was never the case of the respondent that further period was mutually fixed and that saved his case from the bar of limitation. The relief that he asked for from the Labour Court as well as 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. We are, therefore, of the view that the SCA/7623/2007 18/19 JUDGMENT High Court was in error in holding that the application made by the respondent under S.78(1)(A) (a)(i) was within three months of the arising of the dispute and was hence not barred under S.79(3)(a).” (emphasis supplied). 12. In present case, there is no dispute so far as the date of “approach letter” under section 42(4) and date of filing of the said BIR application No.5 of 2001 are concerned. The learned Labour Court and Industrial Courts have considered the said details in light of the provisions and the judgment of the Hon'ble Apex Court and held that the application, and/or the approach letter are time barred and the said concurrent view and orders do not call for any intervention. 13. Therefore, there is no error in the order of the labour court holding that the application is time barred and the industrial court has also, rightly, confirmed the order of the labour court. There does not appear to be any error, either of jurisdiction or of law in the judgment and orders of the courts SCA/7623/2007 19/19 JUDGMENT below. Mr. Mishra has also not been able to assail the said findings. Hence, the petition rejected. Notice discharged. No order as to costs. kdc [K.M.Thaker, J.]