AhmednagarThrough its Managing Trustee & Secretary.......Mr. L v. Sangit
Legal Reasoning
{1} wp9175-12.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9175 OF 2012Sopan Ramkrishna Nirmal PETITIONERAge-47 years, Occ – NilR/o Pimpri Nirmal, Taluka – ShrirampurDistrict - AhmednagarVERSUSPravara Medical Trust, Loni RESPONDENTTaluka – Shrirampur, District – AhmednagarThrough its Managing Trustee & Secretary.......Mr. L. V. Sangit, Advocate for the PetitionerMr. A. V. Hon, Advocate for Respondent ....… [CORAM : MANJUSHA DESHPANDE, J.] DATE : 11 th MARCH, 2025 JUDGMENT :1.Rule. Rule is made returnable forthwith. Heard finally withthe consent of the learned Advocates for the parties.2.By filing this Writ Petition, the Petitioner has challengedorder dated 24th July, 2012 passed by the Industrial Court,Ahmednagar in Miscellaneous Application No. 10 of 2010.3.Learned Advocate for the Petitioner submits that, thePetitioner has filed Complaint ULP No. 43 of 1997 and it wastagged along with other similar Complaints No. 248 of 1996, 117of 1997, 131 of 1997, 235 of 1997 and 153 of 1997. Thereafter, {2} wp9175-12.docthe matter was heard along with other matters. It was posted forevidence on 17th June, 2005, however, the petitioner could notremain present. Hence, he filed application Exhibit-U-13 foradjournment, which was rejected by the Industrial Court on thevery same day and dismissed the Complaint filed by thePetitioner in default.4.Since the Complaint was listed for evidence along withsome other matters, therefore, the Petitioner was not awareabout order of dismissal of the Complaint. When the Respondentapproached this Court by filing Writ Petition No. 7102 of 2009,the Petitioner came to know that the Complaint filed by him hasbeen dismissed in default. Thereafter, he applied for the certifiedcopy and filed Miscellaneous Application No. 10 of 2010 on 8thOctober, 2010 praying for restoration of the Complaint. It isstated in the application that only after decision in Writ PetitionNo. 7102 of 2009 filed by the Respondent, the Petitioner came toknow about the dismissal of his Complaint. Thereafter, he filedapplication for certified copy and after receiving certified copy,he has filed the Miscellaneous Application.5.Miscellaneous Application No 10 of 2010 filed by thePetitioner was opposed by the Respondent, by filing say,contending that the application is barred by limitation and the {3} wp9175-12.docPetitioner has not given just and proper explanation for the delaycaused in filing the application.6.Thereafter, the Industrial Court framed issue and theApplication is decided by a common judgment along with twoother applications, vide order dated 24th July, 2012. The IndustrialCourt has dismissed the application on the ground that thoughthe original Complaint was dismissed on 17th June, 2005, thePetitioner had not taken any steps till 8th October, 2010 to obtaincertified copy of the order, though he got knowledge aboutdismissal of the Complaint on 27th October, 2008. Even thenapplication for certified copy was filed on 27th August, 2010 andno reason is assigned for the delay.7.In the aforesaid background, the Industrial Court hasobserved that, this exhibits lethargy on the part of the Petitioner,he is not diligent about his rights and even otherwise,considering that Industrial Court has no power to grantapplication for restoration after expiry of 30 days from the dateof knowledge of dismissal of Complaint. The MiscellaneousApplication No. 10 of 2010 has been dismissed by the IndustrialCourt on the ground that it is not filed within prescribed period oflimitation. 8.Therefore, the Petitioner has filed the present Writ Petition. {4} wp9175-12.docThis Court, vide order dated 17th February, 2014, allowed the WritPetition and quashed and set aside the order dated 24th July,2012 passed by the Industrial Court in Miscellaneous ApplicationNo. 10 of 2010.9.Thereafter, the has Respondent filed Review ApplicationStamp No.11398 of 2014. This Court, by order dated 18th July,2014, allowed the Review and recalled order dated 17th February,2014 and restored the Writ Petition to its original position, byrelying on judgment in the case of “Dilip Vitthalrao JogdandV/s Vaidyanath Urban Co-op Ban Ltd” 2007 II CLR 293.10.In the judgment in “Dilip Vitthalrao Jogdand” (supra),this Court has held that, delay cannot be condoned by IndustrialCourt as it does not have such powers under section 31 (2) of thethe MRTU and PULP Act, 1971 to condone delay beyond 30 daysafter passing of ex parte order. Relying on the said judgment, thisCourt has recalled the order dated 17th February, 2014.11.Learned Advocate for the Petitioner submits thatthereafter, issue whether the Industrial Court has power tocondone delay if an Application under section 31 (2) of the MRTUand PULP Act is made after a period of 30 days from the date ofex parte order, was referred to the Division Bench in“Maharashtra State Cotton Marketing Employees Co- {5} wp9175-12.docoperative Spinning Mill Limited V/s Satish NarayanraoGawande” 2022 (1) Bom CR 68. The Reference Court hasanswered the Reference as under :“14. The answer to question no.1, thus is that the period of 30days as mentioned in Section 31 (2) of the Act of 1971 is to becounted not from the date of the ex parte order passed underSection 31 (1) but from the date of receipt of the certified copyof the ex parte order, which would be irrespective of the distanceor time lag between the date of passing of the ex parte order andreceipt of the certified copy thereof and the Court is empoweredto entertain the same and set aside the ex parte order, uponreceipt of such an application. 12.In the Reference, it has been held by this Court thatirrespective of the distance or time lag between the date ofpassing of the ex parte order and receipt of the certified copythereof and the Court is empowered to entertain application forcondonation of delay and set aside the ex parte order uponreceipt of such an application. This Court has categorically heldthat the period of 30 days mentioned in Section 31 (2) of theMRTU and PULP Act is to be computed not from the date of exparte order, but from date of receiving certified copy. Section 31(2) of the MRTU and PULP Act is reproduced herein below“31 (2) Where any order is made ex parte under sub-section (1), theaggrieved 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 issatisfied that there was sufficient cause for non-appearance of the
Legal Reasoning
{6} wp9175-12.docaggrieved party, it may set aside the order so made, and shall appoint adate for proceeding with the matter: Provided that:, no order shall be set aside on any such application asaforesaid, unless notice thereof has been served on the opposite party.”13.Learned Advocate for the Petitioner, relying on“Maharashtra State Cotton Marketing Employees Co-operative Spinning Mill Limited” (supra), points out that theorder, relying upon which this Court has recalled the order dated17th February, 2014, has also been considered by the DivisionBench, while answering the issue under reference. Even theearlier order dated 17th February, 2014 passed by this Court isalso referred by this Court while answering the Reference andafter taking into consideration all the aspects, the reference hasbeen answered.14.It is the contention of the learned Advocate for thePetitioner that the substantive rights of the Petitioner are atstake. The Petitioner is not going to gain any benefit by causingdelay in filing Miscellaneous Application for restoration. ThePetitioner has categorically stated that since he had noknowledge of the order of dismissal of his Complaint, he had notfiled the restoration application within time. Upon gettingknowledge about the dismissal of the Complaint, he has filedapplication for obtaining certified copy and on receiving the {7} wp9175-12.doccertified copy has immediately filed the restoration application.Therefore, in the interest or justice, the order passed by theIndustrial Court be quashed and set aside. He further submitsthat even otherwise, this Court had in fact allowed the WritPetition, however, in the review application, the said order hasbeen recalled.15.Per contra, learned Advocate for the Respondent contendsthat though the Petitioner had knowledge about dismissal ofComplaint on 27th October, 2008, he had filed application forcertified copy on 27th October, 2010, which shows the lethargicapproach on the part of the Petitioner and hence, the Petitionerdoes not deserve any sympathy. He relies on the say filed by theRespondent before the Industrial Court in order to support theorder passed by the Industrial Court.16.I have heard learned advocates for the respective partiesand perused the judgment in “Maharashtra State CottonMarketing Employees Co-operative Spinning Mill Limited(supra). Order in Dilip Vitthalrao Jogdand (supra) relying onwhich this Court has recalled order dated 17th February, 2014 isno more a good law in view of the observations made by thisCourt in para 14 of “Maharashtra State Cotton MarketingEmployees Co-operative Spinning Mill Limited (supra), {8} wp9175-12.docwhich are reproduced above.17.Therefore, in my view, when this Court has already taken aview on merits of the matter vide order dated 17th February,2014, the same needs to be maintained. This Court, inparagraphs No. 9 and 10 of the order dated 17th February, 2014has observed as under:“9. In the present case, it appears that an application had beenmoved at the instance of advocate of the petitioner to adjourn thedate on 17-06-2005 itself, yet order came be passed on very sameday. It is further referred to that advocate has informed aboutdismissal order yet such information had not been received by thepetitioner till 27-08-2010. This fact perhaps had gone uncontested.Even otherwise, this Court has considered in the judgment andorder referred to above and has observed that:“4. Several other contentions are raised, about the laxity,the approach of the petitioners- employees as the raise fromslumber owing to the order of the Apex Court, wheremajority of the employees of the respondents were showeredwith the benefit of out of Court settlement and resultantly,the other employees thought identical benefits. Theseaspects are ground realities, need not be controverted. Thenews item published in local newspaper gave certainly analarm of awakening to the petitioner to rush to the Courtand know what has happened.”10. In addition, it may be noted that the petitioner was not going tobe benefited by deliberately delaying approaching the IndustrialCourt or for that matter to make an application for certified copythereof. In such a case, interest of justice can be met with by {9} wp9175-12.docawarding reasonable costs for remedying the situation in presentcontext.”18.Considering that the valuable rights of the Petitioner are atstake and he is not going to be benefited by causing delay infiling his own proceedings, the delay occurred requires to becondoned in the interest of justice. Since issue aboutcondonation of delay in filing application for restoration hasalready been answered in the reference and the delay has beenexplained in the application filed by the Petitioner, I agree withthe view taken by this Court while passing order dated 17thFebruary, 2014. As a result, the Writ Petition deserves to beallowed. Learned Advocate for the Petitioner places on recordcopy of receipt dated 19th March, 2014 by which cost of Rs.5000/-directed by this Court vide order dated 17th February, 2014 hasbeen deposited. The copy of taken on record and marked “X” forthe purpose of identification.19.For the aforestated reasons, the Writ Petition is allowed interms of prayer clause “A”. Rule is made absolute in above terms.20.At this stage, learned Advocate for the Respondentrequests to grant stay to this order for a period of four weeks.However, considering the fact that the matter is pending from2012 and the original complaint is of the year 1997, I do not find {10} wp9175-12.docany merit in the request. The request for stay is therefore,refused. [ MANJUSHA DESHPANDE ] JUDGE drp/wp9175-12.doc