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Maharashtra State Cotton Marketing Employees Co-Operative Spinning Mill Limited, Akola v/s Satish Narayanrao Gawande

    Writ Petition No. 6694 of 2018

    Decided On, 01 October 2019

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.S. CHANDURKAR

    For the Petitioner: A.R. Deshpande, Counsel. For the Respondent: S.S. Dhengale, Counsel.



Judgment Text

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 the provisions of Sections 4 to 24 of the Act of 1963 had not been expressly excluded under the said Act, the Court had the power to condone the delay by applying the provisions of Section 5 of the said Act. In that regard, he referred to the decisions in Mukri Gopalan Versus Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5], Consolidated Engineering Enterprises Versus Principal, Secretary Irrigation Department & Others [(2008) 7 SCC 169] and Kapil & Others Versus Union of India & Others [2017(4) Mh.L.J. 660] to submit that the delay if any could be condoned under Section 5 of the Act of 1963.

4. He then brought to the notice of the Court various decisions rendered on the aforesaid aspect. Reference was made to the decision in Letters Patent Appeal No.3 of 2004 [Rangrao Fakiraji Chandekar Versus Regional Manager, Maha Agro Industries Development Corporation Ltd.] decided on 05.01.2004 at the Aurangabad Bench of this Court. It was held therein that there was no power in the Court concerned to condone delay on the lines of such power as provided under Section 30 of the said Act. He submitted that this decision has been subsequently followed by various learned Single Judges and applications under Section 31(2) of the said Act were not entertained on merits if it was beyond the period of thirty days from the passing of the ex parte order. Referring to the decision in Writ Petition No.4626 of 2012 [Popat Anaji Rautray Versus Zilla Parishad] decided on 11.11.2014 it was submitted that the time spent for receiving a copy of the ex parte order has been excluded and the ex parte order has been set side on that basis. This period of copying days was excluded in view of Section 12 of the Act of 1963. He thereafter sought to draw support from the judgment of the learned Single Judge in Writ Petition No.704 of 2014 [Sayaji & Others Versus Bajaj Auto Limited] dated 19.01.2018. According to him, various observations made by the learned Single Judge in that decision clearly indicated that the provisions of Section 29(2) of the Act of 1963 permit delay to be condoned in such situation by applying the provisions of Section 5 of the Act of 1963. However, as the Court proceeded to reject the challenge raised by the employer therein, further adjudication was not warranted. It was therefore submitted that considering the aforesaid decisions, the Industrial Court ought to have entertained the application filed under Section 31(2) of the said Act and ought to have condoned the delay in seeking setting aside of the ex parte order.

5. On the other hand, Shri S.S. Dhengale, learned counsel for the respondent supported the impugned order. He submitted that the learned Member of the Industrial Court rightly held that there was no jurisdiction to entertain the application filed under Section 31(2) of the said Act if it was filed beyond the period of thirty days from the date of the order. Referring to the decision in Writ Petition No.122 of 2013 [Baban Raosaheb Dongre Versus Pravara Medical Trust]dated 18.03.2014, he submitted that the judgment of the Division Bench referred to hereinabove was followed and the challenge on merits therefore was rightly not considered by the learned Member of the Industrial Court. Since the aforesaid decisions clearly apply to the facts of the present case, there was no reason to interfere with the impugned order. He also referred to the affidavit in reply placed on record to substantiate his contentions.

6. I have heard the learned counsel for the parties and I have given due consideration to their respective submissions. The provisions of Section 31 of the said Act which fall for consideration read thus:-

“31. Consequences of non-appearance of parties

(1) Where in any proceeding before the Court, if either party, inspite of notice of hearing having been duly served on it, does not appear, when the matter is called on for hearing the Court may either adjourn the hearing of the matter to a subsequent day, or proceed ex parte, and make such order as it thinks fit.

(2) Where any order is made ex parte under sub-section (1), the aggrieved party may, within thirty days of the receipt of the copy thereof, make an application to the Court to set aside such order. If the Court is satisfied that there was sufficient cause for nonappearance of the aggrieved party, it may set aside the order so made, and shall appoint a date for proceeding with the matter:

Provided that, no order shall be set aside on any such application as aforesaid, unless notice thereof has been served on the opposite party. ”

(emphasis supplied)

7. Under Section 31(1) of the said Act, the Court is empowered to proceed ex parte against the party who despite notice of hearing being duly served does not appear when the matter is called for hearing. Under sub-Section (2) of Section 31 of the said Act, the aggrieved party against whom an ex parte order is made under Section 31(1) of the said Act may within a period of thirty days of receipt of the copy thereof make an application to the concerned to set aside such an order. On the Court being satisfied that there was sufficient cause for non-appearance of the aggrieved party, it can set aside the order as made. It is however after due notice of the application being served on the opposite party.

8. A plain reading of Section 31(2) of the said Act indicates that if an aggrieved party within a period of thirty days of receiving copy of the order by which it has been treated ex parte makes an application for setting aside such an order, that order can be set aside of sufficient cause being shown. Prima-facie, there does not appear to be any restriction in Section 31(2) of the said Act which precludes the Court from exercising jurisdiction on the ground that such an application for setting aside the ex parte order has been moved after expiry of thirty days from the date of passing of the ex parte order even though such application has been made within thirty days of receiving its copy. There can be various reasons for the Court to proceed ex parte against a party under Section 31(1) of the said Act. In a case where the aggrieved party on account of some bona fide or genuine reason is unable to appear before the Court when the matter is called for hearing and knowledge about such order is received by such party beyond the period of thirty days of passing of the ex parte order such party can move an application under Section 31(2) of the said Act within a period of thirty days of receiving its copy. In other words, if such an application is made beyond the period of thirty days of such ex parte order being made, whether the Court is precluded from examining the sufficient cause for nonappearance of the aggrieved party though such application may have been made within the period of thirty days as stipulated. There could be cases where the Court is satisfied that there was sufficient cause for non-appearance of the aggrieved party. Would it still be precluded from setting aside such ex parte order only on the ground that the application under Section 31(2) of the said Act was made after thirty days of passing of the ex parte order or beyond the period of thirty days from receiving a copy of that order?

It is seen from a plain reading of Section 31(2) of the said Act that such an application as contemplated by that provision is required to be made within thirty days of receiving the copy of the ex parte order and there is no prohibition contained therein by which the Court cannot set aside such ex parte order if the application is made after thirty days of such ex parte order being passed. The expression “the aggrieved party may” in my view indicates the directory nature of said provisions which does not prevent or prohibit an aggrieved party from applying to the Court even beyond the period of thirty days of receipt of the copy to set aside such ex parte order subject of course to showing sufficient cause for not doing so within a period of thirty days.

9. It may be noted that in Gridlays Bank Limited Versus Central Government Industrial Tribunal and Others [1981 I LLJ 327], after considering the provisions of Rule 22 of the Industrial Disputes (Central) Rules, 1957 which empower the Court under the Industrial Disputes Act, 1948 to proceed ex parte in absence of any sufficient cause being shown, it was held that on finding that there was sufficient cause for absence of a party at the hearing, the Court can set aside such ex parte order. The Court was held empowered to entertain an application to set aside an ex parte award. Further, it was held that the Court did not become functus officio to entertain such application despite publication of the award. This position stands reiterated in Mahabir Prosad Choudhary Versus M/s Octavius Tea and Industries Ltd. & Another [AIR 2019 SC 471].

10. In this backdrop, it would be necessary to refer to the judgment of the Division Bench in Letters Patent Appeal No.3 of 2004 (supra). Perusal of the order passed by the Division Bench indicates that the complaint therein was dismissed by the learned Member of the Industrial Court on 04.08.1995. Restoration of the complaint was sought in the year 1997 and that application was rejected by the Industrial Court. Writ Petition No. 631 of 2003 challenging that order was dismissed on 19.08.2003. In the Letters Patent Appeal it was observed by the Division Bench that there was no power with the Court concerned to condone the delay on the lines of such power as has been provided by Section 30 of the said Act [sic Section 28(1)]. It was also observed that in addition there was no sufficient reason given by the applicant to condone the delay of more than two years in filing such application. That finding was held to be based on the assessment of evidence that was recorded by the Industrial Court before the said application was decided.

11. It can be seen that though it has been observed by the Division Bench that there was no power with the Court concerned to condone the delay on the lines of such power as is available under Section 28(1) of the said Act, the reasons put forth for having such delay condoned have also been taken into consideration by observing that the same were not sufficient to condone the delay. The observations in the aforesaid judgment to the effect that the Court had no power to condone the delay on the lines of such power as available under Section 28(1) of the said Act are no doubt binding on this Court. As stated hereinabove, these observations of the Division Bench have been followed in Dilip Vithalrao Jogdand Versus Vaidyanath Urban Co-op. Bank Ltd., Beed & Others [2007 II CLR 293] and Baban Raosaheb Dongre (supra) which judgment was relied upon by the learned counsel for the respondent.

12. It would however be necessary to refer to the judgment of the learned Single Judge in Writ Petition No.9175 of 2012 [Sopan Ramkrishna Nirmal Versus Pravara Medical Trust, Loni ] dated 17.02.2014 decided at the Aurangabad Bench of this Court. In that case, the application for restoration of the complaint was rejected by the Industrial Court on the ground that the same was moved beyond the period of thirty days after getting knowledge of the order. The order passed by the Industrial Court was sought to be supported on the basis that such application was not tenable. The learned Single Judge referred to the earlier judgment in Writ Petition No.7756 of 2009 [Shrirang Pandurang Tadas & Others Versus Bajaj Auto Limited] decided on 29.09.2013 at the Aurangabad Bench of this Court and on that basis proceeded to set aside the order passed by the Industrial Court and thereafter restored the complaint as filed. In effect, the application for restoration of the complaint came to be allowed though it was filed beyond the period of thirty days from the passing of such order but it was moved within thirty days of getting knowledge of that order. In Sayaji & Others (supra), the Industrial Court passed an order on 19.01.2011 by which the application for restoration of the complaint as filed was held to be maintainable. The application was rejected on merits. That order was challenged by the employer who was aggrieved by the finding recorded by the Industrial Court that such application was maintainable. The workman also challenged that order as the said application was rejected on merits. The facts therein indicate that when the workman applied for restoration of the complaint there was a delay of seven days. In Sayaji & Others [supra], the writ petition filed by the workman had been initially dismissed by the learned Single Judge on 30.01.2015 however after referring to the decision in Shrirang Pandurang Tadas (supra), the review application was allowed and the said writ petition was restored. In paragraph 23 of the said judgment, the learned Single Judge has referred to the adjudication in Shrirang Pandurang Tadas [supra] and has thereafter followed the same to observe that the order passed by the Industrial Court refusing to restore the complaint of the workman was liable to be set aside. Since the maintainability of the application under Section 31(2) of the said Act was questioned by the employer, the learned Single Judge referred to the provisions of Section 29(2) of the Act of 1963. In paragraph 31 of the said judgment, it was noted that various decisions holding that the provisions of Section 29(2) of the Act of 1963 had not been referred to in those decisions by further observing that even a single distinguishing feature was sufficient to distinguish a precedent. Ultimately, the challenge as raised by the employer was not accepted and the complaints were restored by following the ratio of the decision in Shrirang Pandurang Tadas (supra).

13. It would also be necessary to refer to the decision in Baban Raosaheb Dongre (supra). The learned Single Judge was considering a similar question as regards maintainability of an application under Section 31(2) of the said Act that was moved after a period of thirty days from the date of the ex parte order. The decision in Sopan Ramkrishna Nirmal (supra) was relied upon by the workman. The learned Single Judge noted that the judgment of the Division Bench in Letters Patent Appeal No.3 of 2004 (supra) was not brought to the notice of the learned Single Judge and as a result observed that the decision in Sopan Ramkrishna Nirmal [supra] was rendered per incuriam.

14. In yet another decision in Popat Anaji Rautray [supra] decided on 11.11.2014 at the Aurangabad Bench of this Court, the application for restoration of a complaint that was dismissed in default on 31.03.2009 was moved on 02.05.2009. This was in view of the fact that an application for grant of certified copy was made on 29.04.2009 and after receiving it on the same day, the application for restoration was moved. By holding that the expression “receipt of the copy thereof” means “certified copy thereof”, the period spent in receiving the certified copy was excluded. It was thus held that though the application under Section 31(2) of the said Act was moved after thirty days of the dismissal of the complaint in default, the time spent for obtaining the certified copy was liable to be excluded.

Under provisions of Section 12(2) of the Act of 1963 the time spent for obtaining a copy of the order complained of is liable to be excluded in computing the period of limitation. If this period is thus excluded while computing the period of thirty days under Section 31(2) of the said Act, it is implicit that provisions of Section 12(2) of the Act of 1963 have been relied upon for said purpose. This application of Section 12(2) of the Act of 1963 can be supported in view of the provisions of Section 29(2) of the Act of 1963. In other words, the provisions of Sections 4 to 24 of the Act of 1963 can be applied unless expressly excluded by the said Act.

15. 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 th

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e 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) Mh.L.J. 555] wherein it has been observed in paragraph 2 of the said judgment as under:- “2. ..........Rule 7 reads thus: 7. If it shall appear to any Judge, either on the application of a party or Reference otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit. If the learned Single Judge was of the view that the matter could more advantageiously be heard by a Bench of two or more Judges, he should have made a report to that effect to the learned Chief Justice. The ultimate decision as to whether a larger Bench should be constituted or not would obviously lie with the learned Chief Justice. For ought we know, in a given case the learned Chief Justice may come to a conclusion that the matter does not require to be referred to a larger Bench and he may not constitute a larger Bench. Judicial propriety demands this procedure to be strictly followed. ” 16. The papers be placed before the Hon’ble the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Bench of two or more learned Judges for considering the following question:- “Whether the Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 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 as contemplated by the provisions of Section 31(2) of the said Act is made after a period of thirty days from the date of that ex parte order despite such application having been made within a period of thirty days of receiving a copy of that order?” Order accordingly.
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