Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
A.S. CHANDURKAR, J.
Maharashtra State Cotton Marketing Employees Co-Operative Spinning Mill Limited, Akola - Appellant
Versus
Satish Narayanrao Gawande - Respondent
Writ Petition No. 6694 of 2018
Decided On : 01-10-2019
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Section 31 - condone the delay - no jurisdiction - Claim of compensation - According to the employer there were justifiable reasons for which the employer remained unrepresented in the said complaint before the Industrial Court. Alongwith that application, separate application seeking condonation delay in setting aside the ex parte order was also moved. The said applications were opposed by the complainant and the Industrial Court by its order dated 20.02.2018 held that as the application for setting aside the ex parte order had been filed beyond the period of thirty days of passing of the ex parte order, the Court had no jurisdiction to condone the delay. On that count, the application came to be dismissed. Being aggrieved, the employer has challenged the aforesaid order – Held, It can thus be seen that on one hand, it has been held by the Division Bench in Letters Patent Appeal No.3 of 2004 [supra] that there is no power with the Court concerned to condone the delay on the lines of such power as provided under Section 28(1) of the said Act which decision has been subsequently followed in Dilip Vithalrao Jogdand and Baban Raosaheb Dongre (supra). There is yet another line of cases taking the view that such delay is liable to be condoned. In Shrirang Pandurang Tadas and Sopan Ramkrishna Nirmal (supra) applications filed under Section 31(2) of the said Act after a period of thirty days have been entertained and allowed. Though the decision in Shrirang Pandurang Tadas [supra] has been held to be per incuriam by learned Single Judge in Baban Raosaheb Dongre (supra), that very decision has been followed by another learned Single Judge in Sayaji & Others (supra) for restoring the complaint that was dismissed by the Industrial Court. The conflict in views is thus apparent. In my view, the question whether the Industrial Court has the power to entertain an application under Section 31(2) of the said Act if made beyond the period of thirty days from the date of the order but within thirty days of receiving copy of the ex parte order is of general importance and arises frequently for consideration. Prima-facie, on a plain reading of Section 31(2) of the said Act it is seen that what is required is making of an application to the Court for setting aside the ex parte order made under Section 31(1) of the said Act within thirty days of receiving a copy thereof. There does not prima-facie appear any bar or prohibition to entertain such application if made after period of thirty days of receipt of the copy of the order. Considering the importance of the issue that arises the course as prescribed by Rule 8 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 deserves to be followed based on the observations of the Full Bench in Karim Abdul Rahman Shaikh Versus Shahnaz Karim Shaikh, (2000) 3 MhLJ 555 wherein it has been observed in paragraph 2 of the said judgment as under - Order accordingly
JUDGMENT :
A.S. CHANDURKAR, J.
1. The question that arises for consideration in this writ petition is whether the Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'the said Act') has the power to set aside an ex parte order made under Section 31(1) of the said Act if an application to set aside such order permitted to be made under Section 31(2) of the said Act is made after a period of thirty days from the date of that ex parte order? In other words, whether the Court has the power to condone delay if an application under Section 31(2) of the said Act is made after a period of thirty days from the date of such ex parte order but within thirty days of receiving the copy of such ex parte order?
2. The respondent herein had filed a complaint under Section 28 of the said Act before the Industrial Court invoking provisions of Item 9 of Schedule IV to the said Act as according to him the petitioner-Employer had discriminated in the matter of grant of time bound promotion as well as in applying the proper pay-scale. The employer was duly served in the said complaint but it failed to file its written statement. The complaint thereafter proceeded and by its judgment dated 02.09.2014, the learned Member of the Industrial Court partly allowed that complaint. It was declared that by not paying wages to the complainant as admissible for the post of Clerk, the employer had indulged in an unfair labour practice. Accordingly, the complainant was held entitled for the relief in that regard. The employer on getting knowledge of the said ex parte order applied for its copy on 07.11.2014. After receiving the copy on 11.11.2014, the employer moved an application on 18.11.2014 under Section 31(2) of the said Act praying that the ex parte judgment passed in the said complaint be set aside. According to the employer there were justifiable reasons for which the employer remained unrepresented in the said complaint before the Industrial Court. Alongwith that application, separate application seeking condonation delay in setting aside the ex parte order was also moved. The said applications were opposed by the complainant and the Industrial Court by its order dated 20.02.2018 held that as the application for setting aside the ex parte order had been filed beyond the period of thirty days of passing of the ex parte order, the Court had no jurisdiction to condone the delay. On that count, the application came to be dismissed. Being aggrieved, the employer has challenged the aforesaid order.
3. Shri A.R. Deshpande, learned counsel for the petitioner submitted that the learned Member of the Industrial Court committed an error in holding that there was no jurisdiction with the Court to entertain the application for setting aside the ex parte order if such application was filed beyond the period of thirty days. According to him, if an application was made to the Court within a period of thirty days of receiving the copy of an order passed under Section 31(1) of the said Act as in the present case and if the Court was satisfied that there was sufficient cause for non-appearance of the aggrieved party, it could set aside that order and could thereafter proceed with the adjudication of the matter. There was no bar under which the Court was precluded from condoning the delay if an application under Section 31(2) of the said Act was made after a period of thirty days from the date of the ex parte order. Referring to the provisions of Section 29(2) of the Limitation Act, 1963 (for short, 'the Act of 1963') it was submitted that since a period of thirty days from the date of receipt of the copy thereof had been prescribed for moving an application for setting aside the ex parte order under Section 31(2) of the said Act under a local law and such period being different from the period prescribed by the Schedule to the Act of 1963, the provisions of Section 3 of the Act of 1963 would be applicable. As
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
