Mohammad Sagir vs Bharat Heavy Electricals and Others

K.K. Lahoti, J.

The Petitioner being aggrieved by order of Industrial Court, Bhopal in Appeal No. 45/MPIR/95 and cross Appeal No. 73/MPIR/ 95 dated 27.6.2002, has filed present petition under Articles 226 & 227 of the Constitution of India. The Industrial Court allowing the appeal filed by the Respondent, rejected the claim of the Petitioner as barred by time.

The Petitioner, Mohammad Sagir, filed an application under Sections 31 (3), 61 & 62 of Madhya Pradesh Industrial Relations Act, 1960 on the ground that he was employed with Respondent in BHEL Hospital at Habibganj, Bhopal as Medical Attendant (Grade-Ill) permanently. His services were dispensed with under Standing Order 42 (x) vide order dated 4.6.1978 with effect from 15.4.1978. This order was communicated to him on 21.9.1978. The Petitioner submitted various representations to the Respondent, but no fruitful result ensued. Thereafter, Respondent engaged other persons in the service, while he was entitled for re-engagement. The cause of action arose in May 1981.

The Respondent resisted the claim of the Petitioner on the ground that he himself had left the job and his name was struck off under Standing Order No. 42(x) because he was absent for more than 30 days. The prayer for reinstatement was contested on the ground of limitation. The representations filed by the Petitioner were considered and rejected and communicated by letter dated 7.3.1979. Inspite of this, he continuously sent representations to harass Respondent. On these grounds the application was contested.

The Labour Court in first round vide order dated 9.9.1985 found that though the application was barred by time, but 35 persons having subsequently been appointed, in the circumstances, Petitioner was also entitled for reemployment, for which cause of action had arisen in May 1981. It was directed that on availability of the post, Petitioner be reemployed.

The aforesaid order was challenged by the Respondent before the Industrial Court. The Industrial Court vide order dated 28.2.92 remanded the case because the Labour Court had not decided all the issues and directed to decide the case afresh on all the issues after affording opportunity of hearing to both the parties.

After remand, the labour Court vide order dated 11.3.1995 allowed the application on the following grounds: -

(1) The delay in filing the application, was condoned,

(2) The retrenchment was illegal, and

(3) The Petitioner was entitled to reinstatement without back wages.

Against the aforesaid order, both the parties preferred separate appeals before the Industrial Court which were decided by the impugned order. The Industrial Court without considering the case on merits found that the application was barred by time as the Petitioner''s services were terminated on 4.6.1978 with effect from 15.4.78 and the limitation for filing the application was available upto March 20, 1980. The Labour Court was having no jurisdiction to condone the delay as per Division Bench judgment of the Industrial Court. Considering the aforesaid, the Industrial Court allowed the appeal and the application filed by the Petitioner stood dismissed.

The contentions of the learned Counsel for Petitioner are as under:

(a) That the application filed by the Petitioner was not barred by time. In fact, after termination of the services, the Petitioner approached the Respondent by filing representations, awaited the decision on it upto 21.8.1980 and thereafter filed the application on 22.8.1980. In the circumstances, the application was within time and the Labour Court exercised its discretion in condoing the delay. The Labour Court is a ''Court'' within the meaning of Section 29(2) of Indian Limitation Act, 1963. In view of Section 29(2) of the Limitation Act, the provisions of Sections 4 to 24 (inclusive) shall apply in so far as and to the extent to which they are not expressly excluded by such special law. The provision of Section 5 of Limitation Act has not been expressly excluded by any of the provisions of the M.P. I.R. Act. In the circumstances, Section 5 of the Limitation Act will apply to the application filed u/s 62 of the Act. The Industrial Court erred in holding that the provision of Section 5 of the Limitation Act will not apply in the case.

(b) The Apex Court in the case of The State of Maharashtra Vs. Labour Law Practitioners'' Association and Others, has held that; the Labour Courts are ''Courts'' and decide disputes that are of civil in nature. In the circumstances in view of Section 29(2) of the Limitation Act, the provisions of Sections 4 to 24 of the Limitation Act will apply.

(c) The Petitioner had also based his claim on subsequent event when the Respondent engaged 35 new persons in the Industry and the Petitioner claimed for reemployment, which was not considered by the Industrial Court, though such consideration was imperative to be taken note of.

On the contrary, the learned Counsel appearing for the Respondent relied upon judgment of the Apex Court in the case of Raja Ram Maize Products etc. etc. Vs. Industrial Court of M.P. and Others, and contended that the cause of action got extinguished on 4.6.1978 or maximum by 6/7th March, 1979 when the representation was rejected. In the circumstances, the application filed on 22.8.1980 was barred by time. He has also relied upon the Single Bench judgment of this Court in Vijay Kumar Sharma and Others Vs. The Executive Engineer, Public Health and Others, and contended that the Labour Court has no power to condone the delay. Provisions of Limitation Act are not applicable for filing such applications and Section 5 of the Limitation Act will not apply to the Labour Court for condoing the delay. Contending aforesaid, the learned Counsel for the Respondent submits that the present petition is without any merit and deserves to be dismissed.

To consider the rival contentions of the parties, firstly it has to be seen whether Section 5 of the Limitation Act will apply in the case or not. The aforesaid application was filed under Sections 31(3), 61 and 62 of the MPIR Act. Section 62 of M.P.I.R. Act provides the limitation. The said provision being relevant is reproduced below:

Commencement of proceedings - Proceedings before a Labour Court shall be commenced-

(1) in respect of dispute falling under Clause (a) of paragraph (A) of Sub-section (1) of Section 61 within two years from the date of the dispute:

Provided that-

(a) if the dispute is connected with the termination of the services of an employee, such proceedings shall commence within a year from the date of termination of the services of the concerned employee;

(b) nothing contained in the foregoing provision shall apply if the concerned employee had made an approach before the 30th day of July, 1976 in accordance with the provisions contained in Sub-section (3) of Section 31 as it stood before the said date and in that case the provisions contained in Sub-section (3) of Section 31 and Clause (I) of this section shall be applicable as they had been before the said date;

(c) Where an employee has preferred an appeal or representation against an order of termination under any rule, regulation or standing orders to the competent authority within the period prescribed for such appeal or representation or where no such period is prescribed within three months of the order of termination, such proceedings may be commenced within one year from the date of the disposal of the appeal or representation, as the case may be;

(ii) in respect of matters specified in Clause (c) of paragraph (A) of Sub-section (1) of Section 61, within three months of the commencement of the strike, lockout, stoppage, closure or of the making of the change on an application made by the employer, the representative of employees, any employee directly affected thereby or by the Labour Officer:

Provided that the Labour Court may, for sufficient reasons, admit any application for a declaration that change is illegal under the Act, after the expiry of three months from the date on which change was made.

Similarly, the provisions of Sections 5 and 29 of the Limitation Act 1963 are to be seen, which read as under:

Extension of prescribed period in certain cases.-Any appeal or any application other than an application under any of the provisions of Or. XXI of the Code of CPC 1908 (5 of 1908), may be admitted after the prescribed period, if the Appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.-The fact that the Appellant or the applicant was misled by any order; practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

Savings.-(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act 1872 (IX of 1872)

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceedings under any such law.

(4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act 1882 (V of 1882), may for the time being extend.

It is not disputed that in Madhya Pradesh Industrial Relations Act, there is no specific provision expressly excluding the provision of Limitation Act. Section 29 of the Act provides that where any special law or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule of Limitation Act, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special Act.

To consider the contention of the learned Counsel for Respondents, it is necessary to refer to the decision of this Court in Vijay Kumar''s case (supra), wherein this Court expressed the view thus:

On a bare reading of the aforesaid sections, it transpires that the proceedings before the Labour Court shall commence in relation to disputes falling under Clause (a) in Paragraph A of Sub-section (1) of Section 61 of within two years from the date of dispute. In the case at hand, as has been reflected in the order passed by the Appellate Court services of the workman were put to an end to on 30.4.1992 whereas he approached the Labour Court on 30.11.1994 which is beyond the prescribed period. If the proviso (a) is read in proper perspective the proceeding was squarely time-barred. If the provisions are read conjointly it would become graphically clear that an employee who seeks to challenge the validity of the order he has to approach the Labour Court within the prescribed period of limitation. After the statutory time limit expires the Labour Court cannot give declaration sought for.

Quite apart from the above, it is to be kept in mind that the Labour Court is not a Court as the meaning of the Court is understood in the eye of law. The Labour Court functions within the confines of a special statute called M.P. Industrial Relations Act, 1960. The said statute does not confer any power to condone delay. In absence of such a power flowing from the statute, I am of the considered opinion, the Labour Court could not have condoned the delay and entertained the prayer of the Petitioner. In this context, I may profitably refer to the decision rendered in the case of Officer on Special Duty (Land Acquisition) and Anr. v. Shah Manilal Chandulal etc., AIR 1996 SCW 941, wherein the Apex Court held as under:

It is to be remembered that the Land Acquisition (Amendment) Act (68 of 1984) was enacted prescribing the limitation to exercise the power under Sections 4.6 and 11 and also excluded the time occupied due to stay granted by the Courts. Taking cognizance of the limitation prescribed in the proviso to Sub-section (2) of Section 18 the provisions of the Limitation Act were not expressly extended. Though Section 29(2) of the Limitation Act is available and the limitation in proviso to Sub-section (2) of section may be treated to be special law, in the absence of such an application by Land Acquisition (Amendment) Act, (68 of 1984), the Act specifically maintains distinction between the Collector and the Court and the Collector/ LAO performs only statutory duties under the Act, including one while making reference u/s 18, as Statutory authority still acts as a Court for the purpose of Section 5 of the Limitation Act.

Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the considered view that, Sub-section (2) of Section 29 cannot be applied to the proviso to Sub-section (2) of Section 18. The Collector/LAO, therefore, is not a Court when he acts as a statutory authority u/s 18(1). Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to Sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a Court u/s 5 of the Limitation Act.

In view of my preceding analysis, I find the reasonings given by the Appellate Court, are cogent and he has rightly held that the original proceeding, being initiated after the prescribed period, before the Labour Court, was not tenable.

While deciding the case of Vijay Kumar, the Court was impressed with the fact that the Labour Court is not a Court, and hence, the provisions of Section 29(2) of the Limitation Act will not apply.

The case of Vijay Kumar (supra) was reconsidered by the Learned Single Judge in Narayan Singh v. M.P.E.B.: 2002(3) MPLJ 571 whereas the judgment of the Apex Court in the case of The State of Maharashtra Vs. Labour Law Practitioners'' Association and Others, was brought to the notice of the Court. It is relevant to state here, in the aforesaid case the Apex Court ruled as under:

There is not much difficulty in holding that the Labour Court performs judicial functions and is a Court. The Labour. Court adjudicates upon disputes that, had it not been for the Industrial Disputes Act, the Bombay Industrial Relations Act and the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practces Act, would have been within the jurisdictin of the ordinary civil Courts to decide, although the ordinary civil Courts may not be able to grant all the reliefs that are contemplated by these Acts. The Labour Courts are; therefore, Courts and decide disputes that are civil in nature.

Considering the aforesaid, the learned Single Judge in Narayan Singh (supra) held in paras 8,10 and 11:

In view of the aforesaid enunciation of law, there remains no iota of doubt that a proceeding before the Labour Court cannot be instituted after the period of limitation as prescribed is over.

I may with all humility say that the observation made in the case of Vijay Kumar (Supra) with regard to the aspect that the Laobur Court is not a Court was so stated without taking note of the law laid down by the Apex Court in case of Labour Law Practitioners Association (supra).

In view of the aforesaid pronouncement of law by the Apex Court the Labour Court is a Court and the observation made in the Court of Vijay Kumar Sharma (supra) is indubitably per incuriam. However, I may proceed to state except so stating nothing more is expressed in this regard.

It was decided that proceedings before the Labour Court cannot be instituted after the period of limitation as prescribed is over.

The Division Bench of this Court in Vijay Singh @ Vijendra Singh Vs. Shyamlal and others, had also the occasion to consider the similar question while dealing with the provisions of M.P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam. The Bench opined that Section 5 of the Limitation will not be applicable to such original proceedings, To quote their Lordships:

It will be relevant to mention here that u/s 5 of the Act of 1977, applications are made before the S.D.O. for declaration that the transaction so entered into was illegal and bad and, therefore, has to be declared as null and void. This is nothing but in a nature of declaratory suit, though Section 5 of the Act contemplates filing of an application. However, the relief Which is being sought under this section is in the nature of a declaratory suit and as such, the applications have to be treated like those of original suits and as such, Section 5 of the Limitation Act will not be applicable to these original proceedings, as Section 5 is not applicable to suits. Though in Section 5 of the Limitation Act, the word ''application'' has been used, but here ''application'' would mean nothing but suit. Therefore, so far as filing of original applications is concerned Section 5 of the Limitation Act will not be applicable except u/s 17 of the Limitation Act.

In this connection reference may be made to a decision of the Apex Court in case of Mohd. Ashfaq Vs. State Transport Appellate Tribunal, Uttar Pradesh and Others, . There also somewhat an identical question arose. An application u/s 58 of the Motor Vehicles Act, 1939 for renewal was made and as provided in the proviso to Sub-section (iii), delay in making the application for renewal is condonable only if it is not more than 15 days and in that light, their Lordships interpreted that when by a special enactment, separate period of limitation is prescribed, then in such cases that period of limitation will apply and not Section 5 of the Limitation for further condonation of delay. In that connection, their Lordships discussed Section 29(2) of the Limitation Act, 1963 and held that proviso to the Limitation Act will only apply to the extent where they are not expressly excluded notwithstanding that if a separate period of limitation is made, then the provisions of the Limitation Act to that extent will remain excluded. In this connection, their Lordships observed as under:

Section 29(2) of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provisions of the Act, Sub-section (3) of Section 58 in, so many terms, says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in Sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days.

Learned Counsel for the Petitioner, on the basis of the aforesaid ratio, submitted that similar is the position in the present case that an application can only be made within six years and only exception made is that of Section 17 of Limitation Act. Therefore, applying the aforesaid ratio, it is submitted that the applicability of Section 5 of the Limitation Act in the present situation should be excluded- and in our opinion, rightly so. As we have already taken the view that an application u/s 5 of the Act of 1977 is also in the nature of a suit, i.e., what is prayed is declaration, the transaction entered into between the parties is void by virtue of the operation of the present Act and should be declared as null and void. Therefore, it is in the nature of a declaratory suit and since it is in the nature of declaratory suit, provisions of Sections 5 of the Limitation Act are not applicable in the original proceedings. Therefore, we are of the opinion that because of the specific provisions contained in the Act, Section 5 of the Limitation Act are not applicable in the original proceedings. Therefore, we are of the opinion that because of the specific provisions contained in the Act, Section 5 of the Limitation Act will not govern the suit.

In Vijay Kumar Sharma''s case (supra) also it is held that provision of Section 5 of the Act will not apply to the original proceedings. So far as the judgment cited by the learned Counsel for Respondent in cases of Raja Ram Maize Products (supra), the provisions of Section 29(2) of the Limitation Act were not under consideration before the Apex Court as in the aforesaid case no application u/s 5 of the Limitation Act was filed.

To appreciate the aforesaid contention raised by the parties, it is necessary to refer to some judgments of the Apex Court deciding applicability of Section 29(2) of Limitation Act, 1963. The Apex Court in the case of Mangu Ram Vs. Municipal Corporation of Delhi, has considered Section 29(2) of Limitation Act in Para 7 of the judgment, wherein it has been held as under:

There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, Sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908 Section 29, Sub-section (2) Clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4,9 to 18 and 22, shall not apply and; therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29, Sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitaion prescribed by any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub.s. (2) Clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, Sub-section (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani''s case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded for reason of Section 29(2) (b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963 Section 5 is specifically made applicable by Section 29, Sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani Vs. Gopal Singh, the time limit of sixty days laid down in Sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of Sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in Sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Muncipal Corporation of Delhi was not barred by the time limit of sixty days laid down in Sub-section (4) of Section 417 since the Muncipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court.

In Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, , the Apex Court in Para 19 held

... Consequently, it cannot be said that the decision rendered by this Court in The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly, was per incurium. On the other hand, it is a direct decision on the point, namely, applicability of Section 29(2) of the Limitation Act for computing periods of limitation prescribed by local or special law even though the authority before which such proceeding may be filed under the local or special law may not be fullfledged Civil Courts.

The Apex Court in the case of Mukri Gopalain (supra) has considered the provisions of Section 29(2) of the Limitation Act, 1963 and expressed the view in following terms:

.. It is therefore, necessary for us to turn to the aforesaid provision of the Limitation Act. It reads as under:

29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision.

(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.

(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act.

If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically follow. These consequences are as under:

(i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the Schedule.

(ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.

The Court has also considered change in the statutory provision in paras 12 and 13:

It is also necessary to note the change in the statutory settings of Section 29(2) as earlier obtained in the Indian Limitation Act, 1908 and the present Limitation Act of 1963. Section 29(2) as found in Indian Limitation Act, 1908 read as follows:

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.

As per this Sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section 5) relating to the power of the Court to condone delay in preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That is why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the Court u/s 5 to the tribunals under the special law-whether these tribunals are courts or not. If these tribunals under the special law should be Courts in the ordinary sense an express extension of the provision contained in Section 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intention of the legislature.

In para 20, it is further held:

20.... It has to be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by the sections of the Limitation Act would get telescoped into such provisions of special or local law....

The aforesaid question also came for consideration before Full Bench of this Court in Nihalkaran Vs. Commissioner of Wealth-tax, wherein the Full Bench in paras 5, 6 & 7 stated the law as under:

... The Indian Limitation Act, 1908, was substituted by the Indian Limitation Act, 1963 which came into force from January 1, 1964. Section 29(2) of the Limitation Act is the relevant section with the aid of which Section 5 of the Limitation Act is now sought to be applied to an application u/s 27 (3) of the Act. This Section 29(2) as it stood in the Indian Limitation Act, 1908 contempated that Sections 4,9 to 18 and 22 would apply to a special or local law only in sofaras and to the extent to which they were not expressly excluded by the said special or local law and the remaining provisions of the Limitation Act, 1908 would not apply; In view of Section 29(2) of the Indian Limitation Act, 1908, Section 5 of that Act did not apply to a special or local law and whenever it was considered necessary to apply the provisions of Section 5 of the Limitation Act to a special or local law, specific provision used to be made under the relevant special or local law. The Wealth Tax Act was enacted in the year 1957 and the Indian Limitation Act, 1908 was then in force. Consequently, unless Section of the Limitation Act was made specifically applicable to an application u/s 27(3) of the Act, it would not have been applicable with the aid of Section 29(2) of the Limitation Act as it stood in the 1908 Act. It is apparent that Parliament intended to apply Section 5 of the Limitation Act to an application u/s 27(3) of the Act and it was to give effect to this intention that Sub-section (9) was incorporated in Section 27 of the Act making Section 5 of the Indian Limitation act, 1908 applicable to an application to the High Court u/s 27(3) of the Act.

The language of Section 29(2) of the Limitation Act, 1963 which came into force with effect from 1.1.1964 is, however, materially different. Section 29(2) of the Limitation Act, 1963 inter alia provides that Sections 4 to 24 shall apply to a special or local law unless their application is expressly excluded, with the result that unless application of Section 5 of the Limitation Act was expressly excluded to an application u/s 27 (3) of the Act, it would apply. Parliament would be deemed to be aware of this changed legal position at the time when it enacted the Amendment Act No. 46 of 1964 and in our opinion it is because of this changed legal position that it was of the view that it was no longer necessary to retain Sub-section (9) of Section 27 of the Act as it had become redundant and consequently deleted it.

The view which we have taken finds support from the decision of a Division Bench of Gauhati High Court in A. Gupta Trust Estate Vs. Commissioner of Wealth-tax, The various decisions on which learned Counsel for the parties have placed reliance including the decision of the Supreme Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, have all been considered in the case of A. Gupta Trust Estate (supra). Since we are in respectful agreement with the view taken in that case and in view of what we have already indicated above, we do not find it necessary to discuss those cases."

In view of the foregoing discussion, our opinion in regard to the question referred to us, therefore, is that Section 5 of the Limitation Act applies to an application u/s 27(3) of the Wealth-tax Act. The application made in the instant case u/s 5 of the Limitation Act may now be listed before the appropriate Bench of this Court at Indore along with our opinion at an early date. Under the circumstances of the case, however, parties shall bear their own costs of this reference.

In view of the aforesaid Full Bench judgment of this Court, it is apparent that because of Section 29(2) of the Limitation Act, 1963, Section 5 of the Limitation Act applies to the application made under special or local law. Section 62 has been considered by Division Bench of this Court in Somsingh Onkarsingh v. M.P.S.R.T.C., Bhopal and others: 1980 MPLJ 211 wherein the Division Bench held:

On 30th July 1976, the Governor of Madhya Pradesh issued an Ordinance, which amended Section 62 (i) of the Act by adding the following proviso to that Section-

Provided that if the dispute is connected with the dispensing with the services of an employee, such proceedings shall commence within a year from the date of the dispensation of services of the concerned employees."

The Ordinance also amended Sub-section (3) of Section 31 of the Act by adding the following proviso-

Provided further that the provisions of the preceding proviso shall not apply where such application is in respect of dispensing with the services of an employee.

The Ordinance was subsequently replaced by the M.P Industrial Relations (Amendment) Act, 1976, which came into force on 6th October 1976. The consequence of the amendment so effected is that for the first time a period of limitation for filing an application by an employee under Sub-section (3) of Section 31 of the Act for raising a dispute in connection with the termination of his services has been introduced. It is one year from the date of the terminating of services of the employee concerned. There is no provision in the act laying down that an employee, whose services were dispensed with before the Ordinance came into force and who had not filed an application u/s 31(3) of the Act before the Labour Court for reinstatement, could, within a particular period, file the application. The question for consideration is whether, in these circumstances, the amendment to Section 62 of the Act prescribing a period of limitation should be given prospective or retrospective operation.

Section 62 was amended in 1976 as quoted hereinabove and limitation of one year provided for commencement of the proceedings before the Labour Court if the matter relates to termination of the services of an employee. The aforesaid Act is a beneficial piece of legislation and the provisions of the aforesaid act are intended to serve a definite purpose of granting relief to a workman whose services have been terminated. This provision is enacted with a view to ensure social welfare and security, hence such a beneficial piece of legislation has to be understood and considered in its proper and correct perspective so as to advance the legislative intention, rather than frustrate it. While amending Section 62 of the Act, the Legislative was well aware about the provisions of Section 29(2) and Section 5 of the Limitation Act. So, there is no expressed exclusion of the Limitation Act in M.P. Industrial Relations Act, 1960. Assuming two views are possible then one which is in tune with the legislative intention and aids in furtherance of the same should be preferred to the one which would frustrate. If an employee has bona fidely approached the employer for his reinstatement in service, and some time is consumed, then the doors of Court will not be closed to such an employee who instead of initiating a litigation has approached the employer for his favour and if limitation expired due to this bona fide act, then the Courts are not helpless in entertaining the dispute by condoning the aforesaid delay. Section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only, in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The period of limitation spent in waiting decision of employer until the employer refused to extent justice to such an employee may be condoned. If for a reasonable period, the employee thought it appropriate to approach his employer by filing representations for reconsideration of order of termination because he was not willfully absent from the duty for a period beyond 30 days in the compelling circumstances then it cannot be said that the Labour Court will not have any jurisdiction to condone the delay in filing the application u/s 62(1) of the M.P.I.R. Act. As the aforesaid judgments of the Division Bench and of Single Bench are decided without noticing the judgment of the Full Bench in Nihalkaran case (supra), the matter deserves to be considered by a larger Bench. The question that arises for consideration is formulated as under: -

Whether in view of Section 29(2) of Limitation Act, 1963 provision of Section 5 of the Limitation Act 1963 will apply to an application filed under Sections 62(1) of M.P.I.R. Act 1960 ?

Let the matter be placed before My Lord the Chief Justice for constitution of the appropriate Bench.