1990 Supreme(Bom) 241
IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
National General Mazdoor Union, Thane .... Petitioner.
Versus
Nitin Casting Limited and others... Respondents.
Writ Petition No. 742 of 1982, decided on 11-7-1990.
Advocates appeared :
S.D. Puri for Kuldeep Singh, for petitioner.
B.N. Shastri for M.M. Varma, for respondents Nos. 1 and 2.
Headnote:Section 28-Complaint against company on ground of unfair labour practice-Filed beyond period of limitation-Rejected by Industrial Court Ground-Application for condonation of delay ought to have been made along with main application of complaint-Challenged-Held-View of Industrial Court erroneous-Provision of Section 28 directory and not mandatory-Application for condonation of delay can be made even after complaint is found to be beyond limitation.
2. On the facts mentioned in the complaint, the petitioner-union alleged unfair labour practices under Items Nos. 3 and 4(a) of Schedule II and Items Nos. 1(a), (b), (f) and 2 and 5 of Schedule IV of the PULP Act. Under the provisions of the PULP Act, the items covered by Schedule IV of the Act are to be investigated into by the Labour Court, whereas the matters falling under items Nos. 3 and 4(a) of Schedule II of the PULP Act are to be investigated into and decided by the Industrial Court.
3. The Industrial Court rejected the application on tow grounds. In the first place, it held that the complaint related to the items in Schedule IV of PULP Act and it was the Labour Court alone which would have jurisdiction to adjudicate upon disputes in respect of the items in Schedule IV of the PULP Act. Secondly, the Industrial Court held that an application for condonation of delay ought to have been made along with the main application alleging unfair labour practices. Since this was not done, the main application was itself liable to be dismissed. On this ground, it held that the application was barred by limitation. It is on these two grounds that the Industrial Court rejected the application, by the aforesaid order which is the subject-matter of challenge in this petition under Article 226 of the Constitution of India.
4. Mr. Puri, the learned Advocate appearing for the petitioner, had no difficulty in showing that the view of the Industrial Court that an application for condonation of delay in the filing of the main application ought to be made along with the main application is erroneous. Fortunately for Mr. Puri, the point is fully covered by the judgment of this Court in (Shankar Mahadeo Charpe v. S.S.H. Qazi)1, (1985)II Labour Law Journal 94. Interpreting the relevant provisions, namely section 28 of the PULP Act and Regulations 5, 5-A and 101 of the Industrial Court Regulations, Dhabe, J. held that the provision relating to the filing of a separate application for condonation of delay along with the main application was directory and not mandatory. He held that there cannot be automatic dismissal of the complaint for failure to comply with the requirement of filing an application for condonation of delay along with the complaint.
5. While interpreting an analogous provisions in the Code of Civil Procedure, this Court in (M. Das Gupta v. Prakash K. Shah)2