A.M.AHMADI - (1.)The petitioner a peon in the respondent-Bank came to be dismissed from service on 9/12/1983 under Standing Orders framed in pursuance of Entry 10 in Schedule I of the Bombay Industrial Relations Act 1945 (hereinafter referred to as `the Act). On the termination of his employment he made an application to the employer under Sec. 42(4) read with Rule 53(1) of the Bombay Industrial Relations (Gujarat) Rules 1961 The application to the employer was made on the very next day and must have been received by the employer in normal course within a day or two thereafter. No agreement was arrived at between the employer and the employee within fifteen days from the receipt of the application by the employer as required by Rule 53(2) of the said Rules. The petitioner thereafter filed an application in the Labour Court on 15/05/1984 challenging the legality and propriety of the order of termination passed by the employer under the Standing Orders. The Labour Court Ahmedabad dismissed the application as barred by limitation it having been filed after a period of three months from the date of the dispute. It is this order of the Labour Court which is assailed under Art. 227 of the Constitution.
(2.)Section 78 (1) of the Act empowers the Labour Court to decide a dispute regarding the propriety or legality of an order passed by an employer acting or purporting to act under the Standing Orders. There is no dispute before us that the order of termination of service was passed by the employer under the relevant Standing Orders. Once the legality or propriety of such an order is questioned Sec. 42(4) and Rule 53(1) require the employee or the representative Union desiring a change in respect of the said order make an application in writing to the employer. Such an application for change in respect of the said order passed by the employer under the relevant Standing Orders has to be made within a period of six months from the date of such order. Rule 53(2) next requires that where an application has been made as above by an employee the employer and the employee may arrive at an agreement within fifteen days of the receipt of the application or within such further period as may be mutually fixed by the employer and the employee or the Labour Officer of the local area or the representative Union as the case may be. Admittedly in the present case no agreement was arrived at by and between the parties within fifteen days from the receipt of the application. It is also an admitted fact that the time was not mutually extended by the employer and the employee or the Labour Officer for the area. On the expiry of fifteen days from the receipt of the application the petitioner had the right to approach the Labour Court for a decision on the legality and propriety of the impugned order. Section 79 (3) of the Act however posits that the application in respect of the dispute falling under clause (a) of paragraph A of sub-section (1) of Sec. 78 shall be made if it is a dispute falling under sub-clauses (i) or (ii) of the side clause within three months of the arising of the dispute. On the expiry of fifteen days from the receipt of the application by the employer since there was no agreement between the parties and since the time was not mutually extended. a dispute can be said to have arisen within the meaning of Sec. 79(3) of the Act. It was therefore obligatory on the part of the petitioner to move the Labour Court within three months of the arising of the dispute. Instead the petitioner filed the application in question on 15/05/1984 that is after the expiry of the period of three months prescribed by Sec. 79(3) of the Act. The Labour Court has therefore come to the conclusion that the application is barred by limitation. It is conceded before us that there is no provision for condonation of delay. No such request was also made before the Labour Court.
(3.)Mr. Uppal however submitted that in computing the period of limitation the Court must take into consideration the total period allowed under Rule 53 read with Sec. 79(3) of the Act. According to him the period of six months prescribed by Rule 53(1) the period of fifteen days allowed by Rule 53(2) and the period of three months allowed by Sec. 79(3) must be clubbed together for the purpose of determining the total period for the institution of the application. He submitted that if such a view is not taken an employee who has made an application to the employer promptly will be required to approach the Labour Court earlier in point of time than an employee who has taken his own time and moved the employer under Rule 53(1) at leisure albeit before the expiry of the period of six months. We do not see any merit in this submission. 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 months prescribed by Rule 53(1) would still be available to the petitioner cannot be accepted as correct. Once the application is received 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 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 on 15/05/1984 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.
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