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

2. For a proper appreciation of the questions that have been raised in the appeal it would be necessary to state the material facts. That Model Mills, Nagpur (hereinafter referred to as the Mills) is a public limited company incorporated under the Indian Companies Act. On July 18, 1959 in exercise of the power conferred by S. 18-A of the Industries (Development and Regulation) Act 1951 the Central Government took over the management of the Mills and appointed the 3rd respondent as the authorised Controller of the Mills. On March 25, 1960 the State of Bombay (now the State of Maharashtra) in exercise of the powers conferred by Ss. 3 and 4 of the Bombay Relief Undertakings (Special Provisions) Act 1958 (hereinafter referred to as the Bombay Act) made a notification declaring the Mills to be a "relief undertaking" for a period of one year commencing from March 26, 1960 and ending with March 25, 1961. The appellants eight in number, were at the relevant time, the permanent employees of the Mills. It would be convenient to refer to them as "employees". On December 15, 1960 when the notification made by the State Government under the Bombay Act was in force, the employees abstained from work. There upon, the 1st respondent who is the Factory Manager of the Mills issued notices to the employees to show cause why they should not be dismissed from service for joining an "illegal strike" On January 6, 1961 the Factory Manager passed orders dismissing the employees from service. On January 12, 1961 the employees filed an application the High Court of Bombay for the issue of a writ of mandamus directing the employees to be reinstated in service. On April 4, 1961 the exemption of the Mills from the application of S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act (XXIII of 1947) (hereinafter called the State Act) was made (sic). On April 25, 1961 the employees filed applications before the Assistant Commissioner of Labour claiming reinstatement with back wages. The High Court dismissed the Writ Petition filed by the employees with liberty to file a fresh petition, if necessary, since they were prosecuting their applications for relief of reinstatement before the Assistant Commissioner of Labour. In and by his order dated September 29, 1961, the Assistant Commissioner allowed the applications filed by the employees. He held that as there was no illegal strike the orders of dismissal were unsustainable and should be set aside. He directed that the employees should be reinstated with back wages3. Against the orders passed by the Assistant Commissioner, the Mills preferred applications in revision to the State Industrial Court by its order dated February 16, 1962, the Industrial Court allowed the revision applications filed by the Mills on the ground that the applications before the Assistant Commissioner were not maintainable. On the merits the Industrial Court agreed with the Assistant Commissioner that there was no illegal strike.4. Aggrieved by the orders of the Industrial Court, the employees filed an application under Arts. 226 and 227 of the Constitution for the issue of a writ of certiorari to quash the orders of dismissal passed by the Factory Manager and to direct their reinstatement with back wages. By its judgment dated August 12, 1963 the High Court dismissed the Writ Petition filed by the employees.5. The High Court has held that the right to claim reinstatement is not a right which is available to an employee under the Common Law and that the relief of reinstatement is a special right which has been conferred on an employee under S. 16 of the State Act. In the opinion of the High Court. The essential pre-condition for an employee to claim relief under S 16 is that he is an employee in an industry to which that section is applicable and in respect of which a notification under S. 16 (1) also has been issued. The High Court has reached this conclusion by reason of the fact that the State Government issued a notification exempting the Mills from the operation of S.16 of the State Act and that the exemption was withdrawn only on April 4, 1961 while the employees were dismissed on January 6, 1961. In the opinion of the High Court, by reason of the fact that S. 16 of the Act was not applicable, the dismissal of the employees even if it was wrongful did not give them a right to claim reinstatement and that to hold otherwise would be to give retrospective operation to S. 16 of the State Act which became applicable to the Mills on and from April 4, 1961 by reason of the withdrawal of the exemption. In the result, the High Court confirmed the finding of the State Industrial Court that the employees had no right to file applications under S. 16 of the State Act and Assistant Commissioner were not maintainable.

Reasoning: 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.