Research › Browse › Judgment

Bombay High Court · body

1996 DIGILAW 638 (BOM)

George Thomas v. Bombay Tyres International Ltd.

1996-12-09

J.N.PATEL, K.B.SHAH

body1996
JUDGMENT : 1. Rule. 2. By consent rule made returnable forthwith. Heard learned Counsel for the parties. 3. The petitioner has filed a complaint u/s 28(1) of the M.R.T.U. and P.U.L.P. Act for unfair labour practices under Item 4(f) of Schedule II and Items 9 and 10 of Schedule IV of the Act in the Industrial Court at Bombay, which came to be registered as Complaint (ULP) No.863 of 1993. As required under Sub-section (1) of Section 28 of the M.R.T.U. and P.U.L.P. Act, 1971, the complaint relating to unfair labour practices has to be filed within 90 days of the occurrence of such unfair labour practice, and so the petitioner along with the complaint filed an application for condonation of delay in filing the complaint as according to the Complainant, the cause of action arose on October 10, 1991. 4. The Industrial Court after recording evidence in the matter rejected the application of the Complainant for condonation of delay and dismissed the complaint by the impugned order dated August 5, 1996, which is being challenged in this petition. 5. It is the case of the petitioner that he was employed as Senior Maintenance Fitter from January 2, 1983 and was confirmed in employment from March 1, 1985. The last wages drawn by the petitioner was Rs. 3002/- per month. The petitioner having suffered an employment injury on August 14, 1991, was receiving treatment at Nair Hospital at Bombay and he was advised by the Doctor to take rest upto September 20, 1991. The petitioner was granted sick leave for the said period till September 20, 1991. Thereafter he applied for sick leave from September 30, 1991 to October 9, 1991 and the management refused to grant leave. It is the case of the petitioner that he submitted a fitness certificate dated October 9, 1991 from D.Y.L. Nair Hospital recommending light work/suitable work to the complainant from October 10, 1991 to December 10, 1991. Thereafter he applied for sick leave from September 30, 1991 to October 9, 1991 and the management refused to grant leave. It is the case of the petitioner that he submitted a fitness certificate dated October 9, 1991 from D.Y.L. Nair Hospital recommending light work/suitable work to the complainant from October 10, 1991 to December 10, 1991. It is the case of the petitioner that the respondents failed and neglected to give light work/suitable work to the petitioner from October 10, 1991 to December 10, 1991 and the medical officer of the company has sent a letter dated October 10, 1991 to Nair Hospital to reexamine the Complainant stating that there is no light work for him in the factory on which the Doctor has made his remarks stating that necessary correction has been made to the effect that the patient requires light duty. It is the contention of the petitioner that the act of the Respondents in not providing him light work in the factory and failure to give accident benefit/ compensation for the period of his absence from working in accordance with cause 10-A of the settlement dated September 28, 1993, amounts to unfair labour practice under Items 4(f) of Schedule II and Items 9 and 10 of Schedule IV of the Act. 6. It is submitted on behalf of the Petitioner that the petitioner made representation through the Trade Union for payment of the accident benefit and resumption of duty in the Respondent's company. However, the Respondent adopted delaying tactics and kept harassing the petitioner and complied with neither of the requests and so the petitioner approached the Director of Industrial Safety and Health and requested their assistance in arriving at a solution in the matter. It is the case of the petitioner that the Personnel Manager of the Company Shri Vijay Kumar on October 6, 1992 advised the petitioner to resume duty with an assurance that the question of payment of accident benefit would be settled later and so by relying on the assurance made by the Personnel Manager, the petitioner resumed duty and until February 1993, the petitioner was given light work in the lubrication department. However, thereafter the Maintenance Manager of the Respondent's company Mr. However, thereafter the Maintenance Manager of the Respondent's company Mr. Shamim Gandhi told the petitioner to forget about his demand for accident benefit and promised the petitioner to give light work which the petitioner refused and therefore, he was made to sit for 8 hours of the day in the Time Office without giving any Work, which continued till June 30, 1993. On July 20, 1993, the Assistant Manager Mr. Deshpande forced the petitioner to do heavy job in contravention of medical advice and due to constant pressurising of the petitioner by Mr. Deshpande, he was required to be treated for high blood-pressure and has to be sent by the Company's Doctor to K.E.M. Hospital and the petitioner was sanctioned leave and resumed duty only on July 29, 1993, immediately before which the petitioner filed the complaint. It is therefore, contended on behalf of the petitioner that the petitioner made several requests and had several discussions with the Management of the Respondent-Company on his own and through the Trade Union and requested the company to grant him accident benefit and was assured in the matter and therefore, he did not rush to the Court. Further he made representation to the Factory Inspector and the Deputy Director of Industrial Safety and Health and requested for their assistance and. intervention in the matter and those efforts could not be successful and further the petitioner was not in a position to incur additional expenses to litigate the matter, he being not in good health and physically unfit to undertake running around in order to take the matter to Court and therefore, there was delay in filing the complaint According to the petitioner, in case the delay is not condoned, the petitioner would suffer grave injustice. The learned Counsel for the petitioner drew our, attention to the settlement between the Union and the employer, Clause 10 of which provides for medical benefits to a workman and under the said provision, the petitioner is entitled for accident benefit. It is further submitted that the learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than taking a pedantic approach in the matter and rejecting the application of the Petitioner on technical ground. The petitioner has also relied on the case of Collector, Land Acquisition, Anantnag and Another vs. Mst Katiji and Others, 1987 (2) CLR 92 . 7. The petitioner has also relied on the case of Collector, Land Acquisition, Anantnag and Another vs. Mst Katiji and Others, 1987 (2) CLR 92 . 7. On the other hand, learned Counsel appearing for Respondent No. 1 submitted that the order of the Industrial Court does not suffer from any illegality as the petitioner has failed to show sufficient cause in order to explain the delay of about 621 days. It is contended that the 1st Respondent-Company had denied him leave as early as on September 21, 1991 and thereafter, the petitioner had approached the Inspector of Factory and Director of Industrial Safety which was for mainly seeking light work, and the same was immaterial for showing good and sufficient reason for condoning delay. It is further denied that the petitioner was denied benefits because of union activities. It is therefore submitted that as the complaint filed by the petitioner was barred by limitation the Industrial Court rightly rejected the same. 8. We have examined the case and find that the petitioner has a prima facie good case on merits and from the documents on record and relied upon by the petitioner, it may be seen that the petitioner repeatedly approached the Respondent Company to claim medical benefits and light work in view of the injury suffered by him. Letter dated October 10, 1991 addressed to the Registrar in Orthopaedic of BYL Nair Charitable Hospital on behalf of the Medical Officer of the Respondent-Company, clearly shows that the petitioner fell sick in the factory while on duty on August 14, 1991 at 9 a.m. and was referred to the Hospital for investigation and treatments. The Medical Certificate issued by the B. Y.L. Nair Hospital also reveals that the petitioner was advised for light duty/suitable work The petitioner also approached the Deputy Director of Industrial Safety and Health and the Factory Inspector for seeking redress and by letter dated September 25, 1992 Dr (Ms.) A.J. Bhatkhende, Deputy Director, Industrial Safety and Health (Medical and Certifying Surgeon), Maharashtra State, Bombay did certify that the petitioner received back injury (prolapsed Inter vertebral Disc) out of employment and directed the Personnel Manager of the Respondent Company to take the matter very seriously. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. Therefore, in the facts and circumstances of the case, learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than rejecting the application of the petitioner for condonation of delay. The case of the petitioner deserves consideration on merit and hence in our view this is a fit case where the delay could have been condoned. 9. The impugned order rejecting the application for condonation of delay of the petitioner and dismissing the complaint is set aside and the complaint of the petitioner is restored to file. Delay in filing the complaint is condoned. The learned Member of the Industrial Court is directed to hear and dispose of the Complaint in accordance with the law. Parties are directed to appear before the Member, Industrial Court, Mumbai, on January 6, 1997. 10. Rule is made absolute in the aforesaid terms with no order as to costs.