Madhya Pradesh High Court
Mohammad Sagir vs Bharat Heavy Electricals And Ors. on 24 February, 2004
Equivalent citations: (2004)IILLJ1027MP, 2004(2)MPHT179
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Facing difficulty and hindrance with the pronouncement of law in the case of Narayan Singh v. M.P.E.B., 2002(3) MPLJ 571, wherein it was held that if an employee seeks relief by preferring an application under Sections 31 (3), 61 and 62 of Madhya Pradesh Industrial Relations Act, 1960 (MPIR Act) after the expiration of the statutory time limit provided under the said Act, the said application could not be entertained inasmuch as the provisions of Section 5 of the Limitation Act would not be applicable to original proceedings in view of the law stated in the case of Vijay Singh v. Shyam Lal, 2000 (2) MPLJ 131, the learned Single Judge thought it appropriate to recommend the matter to be placed before a Larger Bench of the law enunciated by the Full Bench in the case of Nihalkaran v. Commissioner of Wealth Tax, Bhopal, 1987 MPLJ 562 and Somsingh Onkarsingh v. M.P.S.R.T.C., Bhopal and Ors., 1980 MPLJ 211 and further the MPIR Act being a beneficial statute enacted with a view to ensure social and welfare security had intentionally not expressly excluded the provisions of the Limitation Act. In this factual backdrop the matter has been placed before us.
2. Before we proceed to set out the facts, we think it condign to reproduce the question framed by the learned Single Judge to be answered by the Full Bench:
"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 MPIR Act, 1960 ?"
3. Presently, we shall proceed to state the facts in brief so that a clear picture can be frescoed under what circumstances the aforesaid question has emerged. The petitioner was in the employment as Medical Attendant at Habibganj Hospital in the year 1972. He due to his illness went on leave and after he returned to duty, he was slapped with an order of termination. Being aggrieved, he knocked at the doors of the Labour Court by preferring an application under Section 31 (3) of the MPIR Act. Many a contention was raised questioning the sustainability of the termination which need not be stated inpraesenti. A written statement was filed by the Management contending inter alia that the petition filed by the petitioner was barred by limitation. The Labour Court framed many issues including an issue pertaining to limitation. He recorded a finding that the application was barred by limitation. Though the Labour Court recorded such a finding, yet it issued a direction that the workman petitioner be considered for re-employment by the Management in respect of the future vacancy. The presentableness of the aforesaid order was assailed in an appeal preferred by the Management respondent No. 1 herein before the Industrial Court which set aside the order passed by the Presiding Officer, Labour Court and directed the matter to be decided afresh after giving an opportunity of hearing to both the parties. After the matter was remitted, the Labour Court came to hold that it had power to condone the delay and accordingly condoned the delay and decided the controversy in favour of the petitioner and directed reinstatement in service without back-wages. Being dissatisfied with the aforesaid order, both the parties preferred appeals. The Appellate Authority by order dated 27-6-2002, Annexure P-5, set aside the order of the Labour Court and allowed the appeal preferred by the Management on the foundation that the application was barred by time and provisions of Section 5 of the Limitation Act was not applicable to such an application.
4. Aggrieved by such an order, the petitioner has preferred the writ petition. In this backdrop as has been indicated hereinbefore, the learned Single Judge was required to answer the issue whether the Labour Court has power to condone the delay under the provisions of the Limitation Act, 1963 or not.
5. To clear the initial maze whether the Labour Court is a Court or not, we would like to refer to the decision rendered in the case of State of Maharashtra v. Labour Law Practitioners' Association and Ors., (1998) 2 SCC 688. In the aforesaid case the Apex Court in Paragraph 5 held as under:--
"5. 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 Practices Act, would have been within the jurisdiction 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."
6. Relying on the aforesaid decision, the learned Single Judge in the case of Narayan Singh (supra) came to hold that the Labour Court is a Court. As far as the said conclusion has been reached in the case of Narayan Singh (supra), there is no difficulty in holding that the said conclusion is absolutely impeccable. The central question that arises is whether the Labour Court, being a Court, can invoke power under Section 5 of the Limitation Act, 1963 to a proceeding initiated under the MPIR Act.
7. In this context, it is appropriate to refer to Section 31 (3) which reads as under :--
"31. Notice of change.-- (1) *** *** *** (2) *** *** *** *** *** (3) A representative of employees or an employee desiring a change in respect of an industrial matter specified in Schedule II or any other matter arising out of such change may make an application to Labour Court in such manner as may be prescribed."
8. Section 61 of the MPIR Act deals with power of Labour Court. The said provision reads as under:--
"61. Powers of Labour Court.-- (1) In addition to powers conferred under other provisions of this Act, Labour Court shall have power to--
(A) decide-- (a) disputes regarding which application has been made to it under Sub-section (3) of Section 31 of the Act; (b) industrial disputes-- (i) referred to it under Section 51 or 52; (ii) in respect of which it is appointed as the Arbitrator by a submission; (c) whether a strike, lock-out, stoppage, closure or any change is illegal under this Act; (B) require any employer-- (a) to withdraw any change or lock-out which is held by it to be illegal; or (b) to carry out any change provided such change is a matter in issue in any proceeding before it under this Act; (C) require any employee to withdraw a strike which is held by it to be illegal; (D) try offences punishable under this Act and the Acts specified in Schedule II-A and where the payment of compensation on conviction for an offence is provided for, determine the compensation and order its payment.
(2) For the purposes of deciding a dispute under paragraphs (A) and (B) of Sub-section (1) it shall be lawful for the Labour Court to determine questions of fact relevant to the dispute.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or any other law for the time being in force, every offence punishable under this Act and the Acts specified in Schedule II-A shall be tried by the Labour Court within local limits of whose jurisdiction it was committed."
9. Section 62 the crucial provision for the present case, reads as under:--
"62. Commencement of proceedings.-- Proceedings before a Labour Court shall be commenced--
(i) 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."
10. The learned Single Judge in the case of Vijay Singh (supra), has expressed the view that a proceeding before the Labour Court can not be instituted after the period of limitation as prescribed under Section 62 above. The learned Single Judge took the said view as he was bound by the binding precedent as ratio laid down in the case of Vijay Singh (supra), wherein a Division Bench while dealing with the provisions of M.P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ko Udhar Dene Walon Ke Bhumi Hadap-ane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1960 (in short 'the 1960 Adhiniyam') adverted to Section 5 of the said Adhiniyam and came to hold as under :--
"8. It will be relevant to mention here that under Section 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 under Section 17 of the Limitation Act.
9. In this connection reference may be made to a decision of the Apex Court in case of Mohd, Ashfaq v. State Transport Appellate Tribunal, V.P. and Ors., AIR 1976 SC 2161. There also somewhat an identical question arose. An application under Section 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."
11. To appreciate the aforesaid ratio, it is necessitous to reproduce Sections 5 and 15 of the aforesaid Adhiniyam (Act No. 3 of 1977). They read as under:--
"5. Application for protection and seeking relief under this Act.-- A holder of agricultural land who is a party to any transaction of loan subsisting on the appointed day or entered into thereafter may apply to the Sub-Divisional Officer within such time, and in such form and manner as may be prescribed for protection and relief under this Act."
"15. Transfer of land which is subject matter of prohibited transaction of loan to be null and void.-- (1) Notwithstanding anything contained in any law for the time being in force where a lender of money transfers any land, which may be a subject matter of a prohibited transaction of loan, by way of sale, gift, exchange, lease or otherwise, such transfer shall be deemed to have been made to defeat the provisions of this Act and be null and void.
(2) If any question arises as to whether a transaction is prohibited transaction of loan to which the provisions of Sub-section (1) apply, the holder of agricultural land who is party to such transaction shall apply to the Sub-Divisional Officer :--
(i) where such transaction was entered into after the 31st January, 1977 but prior to the commencement of the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ko Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti (Sanshodhan) Adhiniyam, 1988 within 5 years of such commencement; and
(ii) where such transaction is entered into after the commencement of the said Act within 6 years of the date of such transaction in the form and manner prescribed under Section 5. The provisions of Section 17 of the Limitation Act, 1963 (No. 36 of 1963) shall apply for computing limitation under this sub-section.
(3) The Sub-Divisional Officer may, on his own motion or on receipt of the application under Sub-section (2) proceed to deal with the matter as if it were an action taken on his own motion under Section 6 or an application under Section 5 as the case may be and the provisions of this Act shall so far as may be apply thereto as they apply to an action taken on his own motion under under Section 6 or to an application under Section 5."
12. At this juncture, we may refer to Section 18 which deals with power to make rules. Under said section, a set of rules called the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ko Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Niyam, 1978 (hereinafter referred to '1978 Rules').
13. At this juncture, it is desirable to refer to Rule 3. The said Rule 3 reads as under :--
"3. The application under Section 5 shall be made in Form 1 to the Sub-Divisional Officer on or before the 31st January, 1984."
The said rule was substituted on 31-1-1983.
14. At this stage, we think it seemly to sit in the time machine and understand and appreciate the biographical sketch of the aforesaid provisions. A controversy relatable to the aforesaid Adhiniyam and the Rules arose in the case of Jahar Singh and Anr. etc. v. Collector, Shivpuri District and Ors., AIR 1988 MP 311. In the aforesaid decision, Their Lordships in Para 9 held as under:--
"9. Counsel has laid great stress on the language of Sections 4 and 5 as also Rule 3 aforequoted in support of his contention. Indeed, he has, also relied on the amendment of Rule 3 which was published in Gazette, dated 31-1-1983. It says, "In the said Rules, in Rule 3, for the figures "1983" the figures "1984" shall be substituted". Counsel's precise contention is that Rule 3 having contemplated that application to avail benefit of the Adhiniyam under Section 5 could only be made within a period of 12 months from the specified date which has to be read as 1984 in virtue of the said amendment, beyond 1985 nothing survives. The Adhiniyam must be deemed lapsed in 1985 as no application under Section 5 could be entertained by the Sub-Divisional Officer after 1985. This contention, if accepted, according to us, would render Section 6 otiose in as much as the Sub-Divisional Officer is empowered thereunder to Act also" on his own motion", without there being an application under Section 5 of the Adhiniyam, to take action in respect of any "prohibited transaction of loan" and to give relief in respect thereof suo motu. For this short reason, the contention pressed by Shri Mishra must be rejected. Courts are not allowed to adopt such construction as may make any part of the statute meaningless or ineffective (See Siraj-ul-Huq Khan, AIR 1959 SC 198). That apart, it is difficult to relate the year 1983 or 1984 to anything that is contained in the language of afore-quoted Rule 3. We do not propose to say further about Rule 3 at this stage. More about, it later, on its defective drafting."
15. After so holding Their Lordships in Paragraphs 16 and 17 expressed the view as under:--
"15, Despite the obvious misadventure of the draftsman reflected in the language of Rule 3 as also the amendment thereof made on 31-3-1983, we are prepared to accept that under Section 18 (2) (i), the State Government can prescribe limitation period. It is unfortunate that an unsuccessful attempt is made to do so in Rule 3, but on that account, we are not prepared to accept that the substantive right contemplated under the Ad-hiniyam is not enforceable. What only remains to be stressed is that the Legislature was well aware of the position that "doubt or difficulty" could or might arise in the enforcement of the provisions of the Adhiniyam and accordingly, it had enacted Section 16 by which State Government was authorized to remove the doubt or difficulty so that the purpose of the Adhiniyam was fulfilled.
17. Having noticed the defective draftsmanship of Rule 3 of 1978 Niyam, it becomes our constitutional duty to point out the fact so that the State Government discharges its own statutory duty in terms of Section 16 by having recourse to Section 18, or otherwise. Indeed, in our opinion, the State Government would be well-advised to amend Rule 3 of the Adhiniyam to make it clear and effective but no destructive of the purpose of the Adhiniyam. When an attempt is made to amend the said Rule, the State Government would be well-advised to bear in mind the construction we have placed on the provisions of Sections 4, 5 and 6 of the Adhiniyam. The period of limitation for filing application under Section 5 of the Adhiniyam may be laid down clearly and properly and indeed in a reasonable, sensible and meaningful manner as may conform to accepted norms of draftsmanship."
16. In view of the aforesaid observations of the Court, amendments, as it appears, were incorporated as per Sub-sections (2) and (3) of Section 15 of the Act vide Act No. 29 of 1988 which came into force in November, 1988. We may state the judgment in the case of Jahar Singh (supra) was pronounced in February, 1988. We have reproduced the amended Section 15 in toto, the observations made by this Court in the case of Jahar Singh (supra) and Rule 3 of the Rules framed under Section 18 of the Adhiniyam to have a clear picture before us. On a perusal of the aforesaid provision, there remains no scintilla of doubt that Rule 3 of the Rules have lost its force. It is because the amendment has been made in the provision. The Division Bench in the case of Vijay Singh (supra) in Paragraph 7 referred to Section 17 of the Limitation Act and held that the only exception contained in Section 17 of the Limitation Act. To arrive at the aforesaid conclusion, the Division Bench referred to the decision rendered in the case of Mohd. Ashfaq, AIR 1976 SC 2161 and Section 29(2) of the Limitation Act and eventually in Para 10 held as under :--
"10. Learned Counsel for the petitioner, bn the basis of the aforesaid ratio, submitted that similar is the position in the present case that an application can only be made within sixyears and only exception made is that of Section 17 of the 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 under Section 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 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."
17. The core question that arises for consideration is whether the conclusions arrived at in the said decision are correct. In this context, we may usefully refer to Sections 5 and 29 of the Limitation Act. The said provisions read as under:--
"5. Extension of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 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.
29. Savings.-- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 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 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.
(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 proceeding 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, may for the time being extend."
18. The Division Bench in the case of Vijay Singh (supra) treated a proceeding under Section 5 to be in the nature of declaratory suit and, therefore, brought it under the ambit of Section 29(2) as if a limitation so provided under the. Special Act is a limitation deemed to be prescribed under the schedule so as to attract the provisions of Section 3 which is peremptory in nature. It is pertinent to state here that the Division Bench placed reliance on the decision rendered in the case of Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P. and Ors., AIR 1976 SC 2161. After pressing the said judgment into service the Division Bench held that the application under Section 5 of the Adhiniyam being in the nature of declaratory suit, applicability of Section 5 of the Limitation Act is ostracized. In this regard, we may usefully refer to the decision rendered in the case of Mangu Ram v. Delhi Municipality, AIR 1976 SC 105. In the aforesaid case the Apex Court expressed the view as under:--
"There is an important departure made by the Limitation Act, 1963 in so far 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 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 limitation 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-section (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 by 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's case, AIR 1964 SC 260 = 1964 (1) Cr.LJ 152, 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 Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down, in Sub-section (4) of Section 417 since the Municipal 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."
19. In this regard, it is useful to refer the Full Bench decision rendered in the case of Nihalkaran (supra). In the aforesaid case, the Full Bench adverted to the basic conception set out under Section 29(2) of the Limitation Act and in Paragraphs 6 to 8 expressed thus:--
"6. 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 under Section 27(3) of the At, 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.
7. The view which we have taken finds support from the decision of a Division Bench of Gauhati High Court in A. Gupta Trust Estate v. Commissioner of Wealth Tax, Shillong, 148 ITR 366. The various decisions on which learned Counsel for the parties have placed reliance including the decision of the Supreme Court in Hukumdev v. Lalit Narain, AIR 1974 SC 480 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.
8. 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 under Section 27(3) of the Wealth Tax Act. The application made in the instant case under Section 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."
20. In this regard, it is worthwhile to refer to a decision rendered in the case of K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi and Ors., AIR 1969 SC 872, wherein Their Lordships expressed the view that if the special or local law is a complete code in the matter of limitation then Section 29(2) would not be attracted. In this context, we think it seemly to refer to the decision rendered in the case of Prof. Sumer Chand v. Union of India and Ors., (1994) 1 SCC 64. In the aforesaid case, the Apex Court was dealing with Section 140 of the Delhi Police Act. In that context Their Lordships held that as the same is a Special Act and prescribes a period of limitation different than the period prescribed in the Statute of Limitation the suits against persons governed by the said Act in relation to matters covered by Section 140 the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suit and not the period prescribed in the suit under the Limitation Act. It is noteworthy to mention here that under Section 140(1) of the Delhi Police Act there is a prescription that prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the Act complained of. Thus, the special law was a complete code in itself with regard to limitation.
21. Yet in another decision rendered in the case of Sarojini Tea Co. (P) Ltd. v. Collector of Dibrugarh, Assam and Anr., AIR 1992 SC 1264, Their Lordships of the Apex Court stated thus :--
"Since there is nothing in the Ceiling Act which excludes the applicability of Sections 4 to 24 of the Limitation Act, 1963, to proceeding under the Ceiling Act, the said provisions are applicable to such proceedings in view of Sub-section (2) of Section 29 of the Limitation Act, 1963 and the District Judge was competent to condone the delay in the filing of the appeal."
22. At this stage, we may refer with the profit to the decision rendered in the case of Mukri Gopalan v. Cheppilat PuthanpurayilAboobac-ker, AIR 1995 SC 2272, wherein the Apex Court has ruled thus :--
"When the first schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit for it, it can be said that under the first schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. Once the two conditions namely (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 are satisfied Section 29(2) on its own force will get attracted to appeals filed before Appellate Authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before Appellate Authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. It is therefore clear that the Appellate Authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a Court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate Authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the concerned applicant for the delay in filing such appeals."
23. In this regard we may sit in a time machine and refer to the decision rendered in the case of Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260. In the said case the question for consideration was whether an application for special leave to appeal against an order of acquittal filed beyond the time fixed would be entertained. It was held that Section 5 of the Limitation Act, 1908 not having been specifically made applicable, the Court has no jurisdiction to entertain the same. As has been indicated earlier, the said question came up for consideration again in the decision rendered in the case of Mangu Ram (supra) where the decision rendered in the case of Kaushalya Rani was distinguished in view of change of law and it was held Section 5 of the Limitation Act, 1963 is applicable and the Court has jurisdiction to entertain an application filed beyond the period of limitation prescribed by condoning delay since the same was not specifically excluded.
24. In this regard we may refer profitably to the decision rendered in the case of State of W.B. and Ors. v. Kiartick Chandra Das and Ors., (1996) 5 SCC 342. In the aforesaid case after referring to Section 29(2) of the Limitation Act, Their Lordships in Paragraph 7 held as under :--
"7. In consequence, by operation of Section 29(2) read with Section 3 of the Limitation Act, limitation stands prescribed as a special law under Section 19 of the Contempt of Courts Act and limitation in filing Letters Patent Appeal stands attracted. In consequence, Sections 4 to 24 of the Limitation Act stands attracted to Letters Patent Appeal insofar as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining the appeals under Clause 15 of the Letters Patent or appeals arising under the Contempt of Courts, had not expressly excluded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 of the Limitation Act does apply to the appeals filed against the order of the learned single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits."
25. From the aforesaid decisions, it is clear as day that if a different period of limitation is provided under the special law and there is no express exclusion the provisions of Limitation Act Sections 4 to 24 (both inclusive) would apply. Keeping the aforesaid guidance in view, Section 62 of the MPIR Act has to be scanned. The aforesaid provision stipulates that the proceedings before a Labour Court shall be commenced within certain period depending upon the nature of dispute. The said provision definitely provides a different period of limitation. There can be no scintilla of doubt that it is a special law inasmuch as the Act has been brought into existence to regulate the matters relating to employees and employers in certain matters to make provisions of settlement of industrial disputes and to provide for certain other matters connected therewith. The hub of the matter is whether the language in which Section 62 has been couched would admit of a construction that there is exclusion of the provisions of Limitation Act. In the case of Mangu Ram (supra), Their Lordships have stated the mere provision of a period of limitation howsoever peremptory or imperative is not sufficient to displace the applicability of Section 5. The word "shall be commenced", in our considered view, can not be allowed to be construed that there is an exclusion of the applicability of the Limitation Act. In the case of Mohd. Ashfaq (supra) an interesting facet is notable. In the said case Their Lordships were dealing with Sub-section (3) of Section 58 of the special statute which provided that the Regional Transport Authority could condone delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. In that context, the Apex Court held that if an application for renewal is beyond more than 15 days, the Regional Transport Authority would not be entitled to entertain it, meaning thereby, it would have no power to condone it. Similarly, we may refer to Section 166 of the Motor Vehicles Act, 1988. Initially, the said provision stipulated that an application before the Tribunal could be filed within a period of six months from the date of the accident and the Tribunal would have power to entertain not later than twelve months if sufficient cause is shown. When a statute uses language which is absolutely and unequivocally express and clear the Courts are to interpret that Section 5 of the Limitation Act is not attracted. It is because the special legislation becomes a complete code qua limitation. Nothing beyond it is perceivable. The provisions with which we are concerned do not state so. We say so as the applicability of Section 17 of the Limitation Act does not by necessary incorporation or by couching of the provision as has been done in the case of Mangu Ram (supra) would totally obliterate the applicability of Section 5 of the Limitation Act. This being a special law, Section 17 has been incorporated. The Legislature has not stated with regard to the exclusion of Sections 4 to 24. The language used in the provision is that the provisions of Section 17 of the Limitation Act, 1963 would apply for computing limitation under this Section. It is not couched in the negative. There has to be a conceptual shift when the language is couched in a negative manner. It would not be proper to state that because Section 17 has been made applicable, the legislature intended to exclude all other provisions. Section 29(2) on the contrary only postulates twin requirements. Those town ingredients are satisfied in this case. Therefore, the said provision gets attracted, more so, in the absence of any kind of exclusionary clause or negative encapsulation in a different manner. That apart, the use of the word "shall not" under Section 5 of the Adhiniyam would not ostracize the applicability of the Limitation Act.
26. The controversy can be perceived from a different spectrum. The word 'application' has been defined in Section 2(b) of the Limitation Act, 1963 to include a petition. It needs no special emphasis to state that an inclusive definition is wide in its nature. The dictionary meaning of the term 'application' amongst others means 'the act of making request or soliciting'. The term 'petition' means amongst others 'prayer, a formal written request' a document containing such a request, usually signed by persons supporting the request'. (See The New Encyclopedia Dictionary of Webster's English Language). If the connotated expanse of the definition of the term is taken into consideration there can be no trace of doubt that provision setforth in Section 29(2) of the Act is attracted to an application/petition unless exclusively excluded.
27. At this juncture, we may hasten to state that had the Legislature got the intention to exclude the provisions of the Limitation Act, it could have said so in a clear cut manner. There are reasons to say so Section 62 uses the term "commencement of the proceeding". That apart Section 78B provides the time limit for disposal of case by Labour Courts. We may reproduce the said provision with profit.
"78-B. Time limit for disposal of cases by Labour Court, etc.--
(1) The Labour Court of the Industrial Court shall pronounce its award or decision ordinarily within a period of one hundred and eighty days from the date on which the application is made or the dispute is referred to it.
(2) The Industrial Court shall pronounce its decision in an appeal ordinarily within a period of ninety days from the date on which appeal is made to it.
(3) Where the Labour Court or the Industrial Court is unable to make its award or pronounce its decision within the period specified in Sub-section (1) or Sub-section (2), as the case may be, it shall record the reason therefor."
28. We have referred to the said provision only to show that the Legislature has expressed its anxiety for commencement of the proceeding within specified time and putting an end to the same within a fixed period. Under the Industrial Disputes Act, 1947, no period of limitation has been provided but stale cases are not to be entertained. Recently a Division Bench of this Court in the case of Narendra Singh Thakur v. The Divisional Railway Manager, Central Railway, Jabalpur and Anr. (W.P. No. 2784/98, decided on 13-11 -2002) after taking note of the decisions rendered in field has summarized the conclusions in seriatim as under :--
"(i) No limitation having been provided on the statute book, the concept of limitation can not be read into or provided for either by the executive or by the Court.
(ii) The delayed or belated approach can not be the sole or exclusive factor for entitling or enabling the appropriate Government to refuse a reference.
(iii) If the dispute is existing in some form or the other and it has not been galvanized or accentuated for some justified reasons the delay alone would not be fatal or a killing factor enabling the appropriate Government to refuse a reference to curb or scuttle the rights of a person seeking reference.
(iv) Efflux of considerable length of time, may be a criterion to deduce or infer that dispute has ceased to exist but inference in regard to extinction would depend upon the fact of each case and should not be readily or routinely arrived at. (v) If the appropriate Government refuses to refer on the ground of belated approach it must ascribe cogent and germane reasons as to how the dispute has ceased to exist or has waned or faded away as per the law laid down by the Apex Court."
29. We have quoted the aforesaid judgment because in the aforesaid statute the fate of a workman is decided. The MPIR Act is a benevolent and beneficial statute. In the absence of a categorical and unequivocal mandate by the Legislature it would not be appropriate to state that a claim of an employee would be thrown over board as he had not approached the Labour Court within the time frame. True, it is the doctrine of delay and latches would be attracted but that is in a different compartment and that does not necessarily mean, in the absence of such language used in the provision, the application preferred by the employee is not entertainable beyond the stipulated period as provisions of Limitation Act including Section 5 are not attracted. We may hasten to state that the inference with regard to limitation, in our view, is not permissible. A provision relating to limitation is a technical one and has to be technically construed and there can not be a liberal interpretation. We are conscious of the same but simultaneously when technically the provision has not excluded the applicability of the Limitation Act or not put the provisions in such a way constricting or restricting the power of the Labour Court to condone the delay as has been done in the case of Mohd. Ashfaq (supra), we have no hesitation in holding that the Act applies.
30. Once we have held that the Act applies, the question of nature of proceeding becomes inconsequential. In the case of Vijay Singh (supra), the Division Bench adverted to the nature of the proceeding and expressed the view that an application under Section 5 of the said Adhiniyam is in the nature of a declaratory suit. The said conclusion was reached by the Division Bench in placing reliance on the case of Mohd. Ashfaq (supra). On a studied scrutiny of the same, it becomes quite clear that the interpretation given by the Division Bench is not correct. There is no exclusion of the Limitation Act. Solely because it has been stated in the provision that certain time gap is allowable because of Section 17 of the Act, it would not tantamount to the exclusion of the Limitation Act. If such an incorporation is allowed on the language employed, it would be a narrow and truncated one which is not the purpose or intendment of the Legislature. The canvas, in our view, has been broadened by granting allowances of time under Section 17 of the Limitation Act and from that an inference in regard to curtailment should not be done as that would amount not only to causing violence to the language but would also frustrate the conception of purposive interpretation as well as defeat the essential spirit of the enactment. Hence, in our considered view, the construction endowed on the said provision by the Division Bench is not correct. As the learned Single Judge has been guided by the said decision in the case of Narayan Singh (supra), we have no hesitation in holding that the said decision is not correct.
31. In view of the aforesaid premises, we arrive at the following conclusions:--
(i) The exposition of law set out in the case of Vijay Singh (supra) to the effect that the provisions of Limitation Act would not apply to an application preferred under Section 5 of the Ad-hiniyam (Act No. 3 of 1977) the same being an original proceeding in the nature of a declaratory suit as a different type of limitation has been prescribed under the special statute, is not correct.
(ii) The decision rendered in the case of Narayan Singh (supra) does not state the law correctly as far as it pronounces that Limitation Act is not applicable to a proceeding under Section 62 of MPIR Act.
(iii) The language employed under Section 62 of the MPIR Act does meet the twin requisite ingredients to have the applicability of Section 29(2) of the Limitation Act and ergo, the said provision does get attracted.
(iv) An employee who prefers an application under Section 62 of MPIR Act beyond the limitation prescribed therein can always file an application under Section 5 of the Limitation Act and it would be open to the Labour Court to condone the delay if sufficient grounds have been shown.
32. Let the matter be placed before the learned Single Judge for dealing with the same in accordance with law.