Bhagwati, J. - (1.) This appeal, by special leave, raises a short question of construction of certain provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the Act). The facts giving rise to the appeal are few and may be briefly stated as follows.
(2.) The appellant carries on business of manufacturing cloth in a textile mill situate in the city of Ahmedabad. The respondent was working as a jobber in the textile mill in the employment of the appellant and, according to the records of the appellants, he was due to superannuate on 7th January, 1971 on reaching the age of 60 years and intimation to that effect was accordingly given to him by the appellant by a notice dated 1st October, 1970 under Standing Order 19. It appears, however that the appellant decided to continue the respondent in service for a period of one year after the date of superannuation and the appellant accordingly gave a notice dated 24th September, 1970 under Standing Order 19-A continuing the service of the respondent for a period of one year and intimating to him that he would be retired on 8th January, 1972. Thereafter there was another extension of service granted by the appellant by a notice dated 12th January, 1972 issued under Standing Order 19-A and it was intimated to the respondent that he would be retired on 8th January, 1973. The respondent, by his letter dated 5th January, 1973, requested the appellant on compassionate grounds to grant him further extension of service for a period of two years from 8th January, 1973, but the appellant declined to do so and in the result the service of the respondent came to an end by retirement on 8th January, 1973. The respondent did not at any time until his retirement on 8th January, 1973 question the correctness of the records of the appellant showing that he had completed the age of 60 years on 7-1-1971. It was only after his retirement that the respondent for the first time, by his letter dated 13th February. 1973, gave notice to the appellant that his age was only 56 years on 8th January, 1973 and his retirement was, therefore, null and void and he should be reinstated in service. This was rightly regarded as a letter of approach by the respondent to the appellant under Section 42, sub-section (4) of the Act requesting for a change in respect of the order passed by the appellant under Standing Order 19 retiring the respondent. The appellant did not send any reply to this letter of approach and no agreement was arrived at between the appellant and the respondent within 15 days of the receipt of the letter of approach by the appellant. It appears that since there was no favourable response from the appellant, the respondent made an application to the Labour Commissioner on 17th March, 1973 requesting his intervention in the matter. The Labour Officer of the appellant appeared before the Labour Commissioner pursuant to the notice issued to the appellant and, to quote the words used by the respondent in his application before the Labour Court, "took adjournment for making compromise." But no compromise was arrived at between the parties and the respondent ultimately on 7th June, 1973 filed an application before the Labour Court under Section 79 (1) read with Section 78 (1) (A) (a) (i) of the Act praying that the order passed by the appellant retiring him from service should be treated as null and void and he should be reinstated in service with all benefits. The appellant resisted the application on various grounds and apart from disputing the claim of the respondent on merits, the appellant raised a preliminary objection that the application was barred by time under Section 79 (3) (a) of the Act since it was filed more than three months after the arising of the dispute. The respondent had also filed along with the application under Section 78 (1) (A) (a) (i) an application for condonation of delay and to this application, the answer given by the appellant was that the Labour Court had no jurisdiction to condone the delay in filing the application under Section 78 (1) (a) (i). The Labour Court took the view that the application of the respondent under Section 78 (1) (a) (i) was barred under Section 79 (3) (a) as it was not filed within three months, of the arising of the dispute and the Labour Court had no jurisdiction to condone the delay in filing the application and in this view, the Labour Court rejected the application without going into the merits. The respondent preferred an appeal to the Industrial Court, but the Industrial Court also took the same view and dismissed the appeal. The respondent thereupon preferred a petition in the High Court under Article 226 of the Constitution and on this petition, the High Court reversed the view taken by the Labour Court and the Industrial Court and held that the application filed by the respondent under Section 78 (1) (A) (a) (i) was within three months of the arising of the dispute and hence it could not be said to be barred under Section 79 (3) (a). The High Court accordingly set aside the order passed by the Industrial Court and remanded the application to the Labour Court to dispose it of on merits. This decision of the High Court is impugned in the present appeal brought with special leave obtained from this Court.
(3.) The question which arises for determination in this appeal lies in a very narrow compass, but in order to appreciate it, it is necessary to refer to a few relevant sections of the Act. The first material section to which we must refer is Section 42, sub-section (4) which is in the following terms: "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) ..... ...... ....... (ii) ..... ...... ....... 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 the change and no agreement has been arrived at in respect of the change within the prescribed period." What is the 'prescribed period' is to be found in Rule 53 of the Rules made under the Act. That rule so far as material reads: "53(1). Any employee or a representative Union desiring a change in respect of (1) any order passed by the employer concerned under Standing Orders .......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 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. (2) Where an application has been made by an employee under sub-rule (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 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 employees or the Labour Officer for the local area or the representative of employee as the case may be. (3) Where an application has been made by a representative Union under sub-rule (1), the employer and the Representative Union 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 agreed upon by the parties." Then there is Section 78 which deals with the powers of the Labour Court and sub-s. (1) (A) (a) (i) of that section provides inter alia: "78(1). A Labour Court shall have power to - A decide - (a) disputes regarding - (i) the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders. ********** Explanation. - A dispute falling under Clause (a) of Paragraph A of sub-section (1) shall be deemed to have arisen if within the prescribed period 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." And lastly, sub-sections (1) and (3) (a) of Section 79 provide how and within what time proceedings before a Labour Court in respect of a dispute falling under Section 78 (1) (A) (a) (i) are to be commenced and they read as follows: "79(1). Proceedings before a Labour Court in respect of dispute 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. (2) ********** (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, within three months of the arising of the dispute." It will be seen on a combined reading of these provisions that an application to the Labour Court under Section 79 (1) in respect of dispute falling under Section 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 latter of approach under Section 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.;