Bharat Heavy Electricals vs Ratanlal and Others

Sanjay Yadav, J.

Heard.

Order dated 5.11.2012 whereby, the Central Government in exercise of the powers conferred by clause (d) of Section (1) and sub section (2A) of Section 10 of Industrial Dispute Act, 1947 referring the dispute of legality of dismissal of services of the respondent w.e.f., 25.9.2004 for adjudication to Central Government Industrial Tribunal cum Labour Court is being assailed vide this petition. Contentions are that the petitioner Unit in the State of Madhya Pradesh at Bhopal being engaged in manufacture and sale of Electrical Goods and Machinery was governed by the provisions of M.P. Industrial Relations Act, 1960 because of entry No. 3 of Schedule notified u/s 1(3) of 1960 Act vide Gazette Notification No. 9952-XVI dated 31/12/1960, till it was omitted vide notification No. F-6-15/04/A/16 dated 10/10/2005. That the services of respondent was dispensed with by an order of dismissal on 25/9/2004, which could have been agitated within the period of limitation prescribed u/s 62 of the M.P. Industrial Relations Act, 1960 only and the remedy under the Industrial Dispute Act, 1947 was barred as per Section 110. It is urged that having not agitated his dismissal within the limitation period under 1960 Act the respondent could not have raised the dispute, under Industrial Disputes Act 1947 after 10.10.2005 and that the entertainment of a dispute and reference thereof to the CGIT for its adjudication is beyond the powers of Central Government

The proponent as culled out from pleadings and the submissions is propounded on a proposition that a forum provided for redressal of a grievance under a statute is a substantive right and if such aright is not exercised under the very statute as per its provision when the cause of action ha accrued, the right of action in future is lost irrespective of fact that the forum for redressal of grievance have changed and different statue is applicable whereunder the right of action survives.

Right of action is a vested right and the law relating to forum is procedural in nature (see chapter 6 title 2(a)(iii) page 537 Principles of Statutory Interpretation Justice G.P. Singh: 13th Edition).

In Sudhir G. Angur and Others Vs. M. Sanjeev and Others, it is held:

In our view, Mr. G.L. Sanghi is also right in submitting that it is a law on the date of trial of the suit which is to be applied. In support of this submission, Mr. Sanghi relied upon the Judgment in the case of Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Others, , wherein it has been held that no party has a vested (sic) to a particular proceeding or to a particular forum. It has been held that it is well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date when the suit or proceeding comes on for trial or disposal. It has been held that a Court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a Court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repelled. It could not be denied that now the Court has jurisdiction to entertain this suit.....

Respondent being dismissed from service on 25.9.2004, had the right vested in him to bring an action in a forum provided under 1960 Act, merely because the action could not be brought within the limitation prescribed in 1960 Act and that the forum for redressal of grievance having changed where no limitation is prescribed the right to take action is not lost to the respondent who rightly availed the same under 1947 Act and the Central Government was well within its jurisdiction to entertain and refer the dispute for adjudication to CGIT by impugned order.

In this context reference can also be had of a decision in Dhannalal Vs. D.P. Vijayvargiya and Others, , wherein while considering the consequences of deleting of Section 166(3) by Motor Vehicle (Amendment) Act 1994 w.e.f. 14.11.1994 whereby, period of limitation for a claim petition was deleted and despite of the deletion being not made effective from retrospective date, it was applied to pending (at any stage) claims and claims in respect of accidents occurring prior to 14.11.1994 but not filed till than even though they had become barred u/s 166(3). IT has been held:

In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of Section 166 of the Act. From the Amending Act it does not appear that the said sub-section (3) has been deleted retrospectively. But at the same there is nothing in the Amending Act to show that benefit of deletion of sub-section (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place two years before 14.11.1994 when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14.11.1994. Can a claim petition be not filed after 14.11.1994 in respect of such accident? Whether a claim petition filed after 14.11.1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of sub-section (3) of Section 166 w.e.f. 14.11.1994? According to us, the answer should be in negative. When sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when sub-section (3) of Section 166 was in force......

In view of above analysis the impugned order cannot be faulted with. In the result petition fails and is dismissed. No costs.