Case: Jahiruddin Vs. K.D. Ratmi, Factory Manager, The Model Mills Nagpur Ltd

Act No. XXII of 1947 ) and the Industrial Disputes Act, 1947 (XIV of 1947)".The contention urged on behalf of the Mills proceeds on the assumption that the right to claim reinstatement has been granted by S. 16 of the State Act. As we have already stated, S. 16 only recognises the right of a dismissed employee, in appropriate cases, to claim reinstatement but does not confer the right. The section provides the procedure for enforcing the right. In this view, the right of the dismissed employee to claim reinstatement was in existence even during the period of exemption, but only it could not be enforced under S.16. Once the exemption is withdrawn he status quo ante is restored and it is open to the employee to file an application for reinstatement provided, however, his application is within the period of six months from the date of his dismissal.13. Under S. 4(1) (a), on a notification being made, the industry becomes a relief undertaking and the laws enumerated in the Schedule to the Bombay Act shall not apply. The Schedule specifies Chapter V-A of the Industrial Disputes Act and S. 16 of the State Act. Section 4 (1) (a) (i) also provides that the relief undertaking shall be exempt from the operation of the Acts mentioned in the Schedule.14. Learned counsel drew a distinction between the expressions exemption and suspension by relying upon the meanings given to these words in the Oxford Dictionary; Exemption means immunity from a liability whereas the word suspension means put it off. Basing himself on the dictionary meanings, learned counsel for the Mills has contended that the word exemption is of a vider connotation than suspension and means that the industry shall be immune from the liabilities arising under the statutes specified in the Schedule and that the order of dismissal having been passed while the exemption was in force the Mills were immune from liability to reinstate the employees on their dismissal being held to be wrongful.15. The order dismissing the employees was passed on January 6, 1961 when the notification was in force. The employees filed applications before the Commissioner of Labour on April 25, 1961. On the date of their applications the exemption granted to the Mills by the State Government was no longer in operation. The decision in Birla Brothers, Ltd. v. Modak, ILR (1948) 2 Cal 209, has firmly established the principles that for a dispute which originated before the Industrial Disputes Act came into force but was in existence on the date when that Act became law, the Act applied to the dispute since it was in existence and continuing on that date and no question of giving retrospective effect to the Act arose. At p. 221, the learned Chief Justice, Harries, who spoke for the Court stated thus:"In my judgment, the Act of 1947 clearly applies to the present dispute without any question arising of giving the Act any retrospective effect. It is true the dispute arose before the Act was passed, but on April 1, 1947 when the Act came into force, the dispute was in existence and continuing. The employees were on strike and the strike actually continued until May 19, that is, five days after the Government made the order referring the dispute to arbitration. In my judgment, the Act must apply to any dispute existing after it came into force, no matter when that dispute commenced. There is nothing in the Act to suggest that it should apply only to disputes which originated after the passing of the Act. On the contrary, the opening words of S. 10 of the Act make it clear that the Act would apply to all disputes existing when it came into force. The opening words of S. 10 (1) are-If any industrial dispute exists or is apprehended, the appropriate Government may, by order in writing etc.It seems to me that these words make it abundantly clear that the Act applies to any industrial dispute existing when it came into force and therefore, the Act applies to this dispute".16. It is argued by Mr. Phadke that the notification dated April 4, 1961 withdrawing the exemption is only prospective and no retrospective effect can be given to it. This argument proceeds on a fallacy. There is no question of the notification withdrawing an exemption being prospective or retrospective.17. It is finally submitted by learned counsel for the Mills that the validity of the orders passed by the Factory Manager dismissing the employees from service has not been determined by the High Court and that the matter must be remitted to that Court for a consideration of that question. We may point out that the Assistant Commissioner of Labour has held that the dismissal is wrongful. This conclusion is affirmed by the Industrial Court. The validity of the dismissal was therefore, finally concluded in favour of the employees. There is therefore, no question of the validity of the dismissal order now being considered by the High Court.18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable.19

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable.