Shri Balu Bapu Karape v. Kolhapur Institute of Technology

appearing on behalf of the Respondents waives service. By consent of Counsel and at their request taken up for hearing and final disposal.

The Petitioner was employed by the First Respondent as a gardener on 15th August 1994. His services were terminated on 15th February 1996. The Petitioner instituted a complaint of unfair labour practices before the Labour Court at Kolhapur (ULP 78 of 1996) on 2 20th March 1996. The written statement of the Respondent was filed on 20th May 1996. On 7th October 2005, the First Respondent filed an application before the Labour Court contending that it is an educational institution and therefore, the Labour Court had no jurisdiction to entertain and try the complaint. The complaint was thereupon withdrawn on 12th January 2006. Upon the withdrawal of the complaint before the Labour Court, an appeal was filed before the University and College Tribunal on 30th January 2006 under Section 59 of the Maharashtra Universities Act, 1994. An application for condonation of delay was filed. The application was dismissed by the Presiding Officer of the Tribunal on 13th April 2007. The Presiding Officer has held that the Petitioner had not clarified as to when he realised that the Labour Court had no jurisdiction and, if what was set out in the application for condonation of delay was true, the Petitioner should have withdrawn the complaint immediately after the First Respondent filed an application before the Labour Court objecting to the jurisdiction of the Court. However, the Petitioner continued with the complaint and withdrew it in the month of January 2006 – nine years, ten months and sixteen days after the filing of the complaint. 3

There is merit in the submission which has been urged on behalf of the Petitioner and in the grounds contained in the petition that the Petitioner had taken recourse to the remedy of a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 immediately after the order of termination, under the bonafide belief that the Labour Court had jurisdiction. Though the First Respondent filed a Written Statement on 20th May 1996, the objection as to jurisdiction in paragraph 10 thereof was that there was no relationship of employer and employee. The ground that the Labour Court had no jurisdiction, for the reason that the First Respondent is an educational institution, was raised on 7th October 2005. The complaint was withdrawn on 12th January 2006. The University and College Tribunal was under the erroneous impression that there was an undue delay between the filing of the objection as to jurisdiction and the withdrawal of the complaint. That finding of the Tribunal is not correct. It is not disputed that the University and College Tribunal would have jurisdiction to entertain a complaint in regard to the 4 termination of the services of a member of the non-teaching staff of an affiliated College under the Maharashtra Universities Act, 1994. The Petitioner had bona fide been pursuing proceedings before the Labour Court to challenge the order of termination. It is the First Respondent which raised an objection as to jurisdiction in October

2005. The Petitioner thereupon withdrew the complaint and filed an appeal before the University and College Tribunal. In these circumstances, it is evident that the Tribunal was in error in declining to condone the delay. The Petitioner was bona fide contesting the complaint of unfair labour practices before the Labour Court. It is true that the Labour Court did not dispose of the complaint on the ground that there was a want of jurisdiction. However, the complaint was withdrawn upon the objection lodged by the First Respondent on 7th October 2005 to the jurisdiction of the Labour Court. The delay ought to have been condoned.

In the circumstances, the order of the Tribunal dated 13th July 2007 declining to condone the delay is set aside. The delay on the part of the Petitioner in instituting the appeal before the Tribunal is condoned as sufficient cause has been shown. However, it is clarified 5 that no opinion has been expressed by this Court on the merits of the rival contentions, including, in particular, as to whether there existed a relationship of employer and employee. Counsel appearing on behalf of the First Respondent submitted that it may be kept open for the Tribunal to consider as to how the relief which is to be granted to the Petitioner should be moulded, in the event that the Tribunal holds that there is merit in the appeal. It is not necessary for this Court to express any opinion, one way or the other, on that aspect since all the rights and contentions of the parties, including on that aspect are kept open. The Tribunal shall register the appeal consequent upon the condonation of delay and proceed to dispose of the appeal on merits after hearing the parties.