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TMI Blog2000 (8) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Before addressing myself to the submissions urged at the Bar, a statement of a few relevant facts would be in order. (i) The Petitioner was employed by Respondent No. 1 as a clerk on February 1, 1987. On May 6, 1992, his services were terminated and the allegation of the employee, the Petitioner before this Court, is that this was a mere oral termination. (ii) On May 25, 1992, the Petitioner approached his employer, Respondent No. 1, through the notice of ah advocate setting out the nature of his 'grievances and seeking reinstatement with full back wages and continuity of service. The notice which was addressed by the advocate expressly stated that, it was written on the basis of the information provided personally by the Petitioner, the documents shown by the Petitioner and on the authority furnished by the Petitioner. The notice set out the factual background on the basis of which the employee contended that the termination of his services was unlawful and ultimately concluded with a claim of relief from the employer. (iii) In response to the notice, a reply dated July 10, 1992 on behalf of Respondent No. 1 was sent to the employee and the reply was also by an advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. The expression 'chance', which has been used in Section 42(4) is defined by Section 3(8) to mean an alteration in an industrial matter. The expression "industrial matter" is, in turn, defined by Section 2(18) of the Act as follows: "(18) "industrial matter" means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes- (a) All matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person; (b) All matters pertaining to the demarcation of functions of any employees or passes of employees; (c) All matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act; (d) All questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole;" 6. The Petitioner is aggrieved by an order of the employer terminating his services. That is a matter which falls wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of three 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 such further period as may be mutually fixed by the employer and the employee or the Labour Officer for the local area or the representative of employees 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." 8. Rule 53, inter alia, lays down that where the application is made by an employee, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy the requirements of Section 42(4). In the present case, it was submitted that the communication addressed on behalf of the Petitioner, clearly set out his grievances and the relief which he sought, and therefore, met the requirements of the Section 42(4). It was submitted that Section 42(4) does not prohibit an agent of the employee from approaching the employer on behalf of the employee and it is well settled that what could be done by the individual could be done by an agent on his behalf. In any event, it was submitted, that though the sending of the approach notice is a mandatory requirement, the method and manner in which it must be sent, is only directory. On behalf of the Respondents, on the other hand, it was submitted that Section 42(4) contemplates that the approach notice must be sent only by the employee or by a representative union. A representative union, it was submitted, belongs to the class of agents who may possibly represent the employee and out of this class, the legislature had narrowed down its choice to one agent alone, that being a representative union. The provisions of Rule 53(1) were sought to be relied upon to urge that the approach notice has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the employer. Consequently, this Court held that a mere failure of the employee to send copies of the application made to the employer to the Commissioner of Labour and to the Labour Officer, did not prevent the employee moving the Labour Court. In this context, the Division Bench of this Court held as follows: "The manner prescribed by Rule 53 is that either the application is to be sent directly to the employer or through the Labour Officer of the area concerned. If it is possible to positively ascertain from the application made by the employee to the employer the nature of the change which is sought by the employee and if the contents of such a communication sent by the employee are in the view of the Court sufficient to give notice to the employer as to what change the employee is seeking, in our view, such an application or a communication will satisfy the requirement of the proviso to Sub-section (4) of the Section 42." 12. Section 42(4) of the Act requires that the approach notice should be made by the employee or a representative union. The employer has to be approached in the prescribed manner. The prescribed manner is provided by Rule 53. Sub-rule (1) of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge then was) held that an approach notice given by an advocate on behalf of the employee, is valid and meets the requirements of Section 42(4). The learned Judge held as follows: "The legislature desired that no application should be filed by an employee unless the employee or a representative union has in the prescribed manner approached the employer with a request for a change and no agreement has been arrived at in respect of such change. What is contemplated by this proviso is that an employee should approach his employer before filing proceedings in the Labour Court and the intention is that an employee should, not be driven to litigation if it is possible to obtain requisite relief from the employer. The proviso requires that an employee should approach the employer with a request for change, but it does not prohibit an agent of an employee to do so on behalf of the employee. It is well settled that what the individual can do, his agent can do equally well. An individual can give a power of attorney enabling such attorney to act on his behalf and every act done by such power of attorney holder is done on his behalf and every act done by such power of attorney holde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admittedly, the complaint had been filed by a union which was not a recognized union, the Supreme Court held that the Labour Court had no jurisdiction to take cognizance of the complaint. The prosecution was, therefore, quashed. The Supreme Court held thus: "17. While on this point, it need also be mentioned that though the Union has filed a host of documents to support its various contentions and repel those of the appellants, it has not produced any document much less a certificate issued under Section 12 to indicate that it was granted recognition under the Act to entitle it to file a complaint of facts constituting the offence under Section 48(1) and, for that matter, to enable the Labour Court to take cognizance thereupon under Section 39. Since the provisions of this Section are mandatory and the Labour Court has no jurisdiction to take cognizance of the offences mentioned in the Act unless there is a complaint/report in terms thereof the cognizance in the instant case on the complaint of the union must be said to be without jurisdiction." 16. Section 39 of the MRTU & PULP Act, 1971 expressly provides that a complaint can be made only: (i) by an aggrieved per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provision is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working, he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice." 18. The submission that the notice was invalid on the ground that it was not given in the Form appended to the rules is equally without substance. The notice contained a clear statement of the grievances of the Petitioner and the manner in which he expected that it should be resolved. The employe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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