Delay in filing a complaint by workers should be condoned unless there is mala fide action or gross negligence, and the delay should not affect the workers' right to relief against alleged closure.

JUDGMENT :

1. This writ petition is preferred against the orders passed on January 19, 1988 in Complaint (ULP) No. 492 of 1987. By the first order the learned Member of the Industrial Court, Pune learned the application for condonation of delay. The second order was a consequential order and since delay had not been condoned, the learned Member dismissed the Complaint or observed that it stood automatically dismissed. These orders are questioned in this writ petition.

2. The Complaint was filed by the Union on behalf of the workers. The Union/Workers were running from pillar to post complaining about the alleged unfair labour practice of the employer. Complaint (ULP) No. 138 of 1986 was initiated originally complaining of a planned or threatened closure. It was then withdrawn. As soon as the ad-interim injunction was vacated, the employer had closed down the factory. Thereafter the Union/Workers thought it wise to move the Government to make the necessary Reference. Ultimately the Government failed to do so. At that stage it would have been open to the Union/Workers to move the Court for a mandatory order against the Government but instead of doing so, they chose to prefer Complaint (ULP) No. 492 of 1987 and seek condonation of delay by reason of the previous proceedings.

3. The previous proceedings are the real justification for the delay and on the basis thereof delay was required to be condoned. Unfortunately the learned Member of the Industrial Court had pressed the previous proceedings into service against the Union/Workers and denied them condonation relief. That is not proper.

4. It is well settled that when applications are made by workers for condonation of delay, delay is required to be condoned, unless the workers have acted mala fide or there is such gross negligence as a result of which the employer has changed his position and would be prejudiced. At the highest the delay may only disentitle the workers for securing backwages for this period, that is provided they are successful in obtaining relief against the alleged closure.

5. Accordingly rule is made absolute in terms of prayer (a). The Industrial Court's order refusing to condone the delay is set aside and will stand substituted by an order condoning the delay. The second order dismissing the Complaint is also set aside and the Compliant will now be required to be disposed of on merits by the Industrial Court. Hearing to be expedited.

6. This order is restricted to the question of delay and nothing therein has any bearing on the merits of the Complaint.

7. Parties to bear their own costs.