MAHARASHTRA STATE COTTON MARKETING EMPLOYEES CO-OPERATIVE SPINNING MILL LIMITED Vs. SATISH NARAYANRAO GAWANDE

JUDGEMENT

(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 MPLJ 660 to submit that the delay if any could be condoned under Section 5 of the Act of 1963.