Writ Petition No.3774 of 2014

30th July, 2015.

Petitioner Counsel: Shri S.R. SONI
Respondent Counsel: Shri A.P. WACHASUNDER

Cases Cited:
P. Sarathy Vs. State Bank of India, (2000) 5 SCC 355 [Para 5,11]
Jankiram Pandharinath Thorat Vs. The Akot Municipal Council and Anr., 2011(2) ALL MR 792=2011(3) Mh.L.J. 702 [Para 5,11]
Vikas Textiles Vs. Sarva Shramik Sangh, 1990 (1) CLR 257 [Para 6]
Basawaraj and Anr. Vs. Special Land Acquisition Officer, 2013(5) ALL MR 934 (S.C.)=(2013) 14 SCC 81 [Para 8]

JUDGMENT

JUDGMENT :- Rule. Heard finally with the consent of the learned Counsel for the parties.

2. The order passed by the Labour Court refusing to condone the delay in filing a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the said Act) is under challenge. Said order has been confirmed by the Industrial Court in exercise of revisional jurisdiction.

3. The petitioner was employed with the respondent - Bank on the post of Senior Clerk. During the course of service, enquiry proceedings were initiated against him vide Chargesheet dated 21-12-2006. The proceedings thereafter led to an order of termination dated 15-2-2008. The petitioner received copy of said order on 19-2-2008 and thereafter approached the Labour Commissioner (Central) at Nagpur by filing proceedings on 29-2-2008.On an objection being raised by the respondent that the appropriate Government was the State Government, an order came to be passed on 16-6-2008 upholding said preliminary objection and holding that the appropriate Government was the State Government. According to the petitioner, he then approached the Labour Court at Pune by filing a complaint under Section 28 of the said Act. In those proceedings, a preliminary issue regarding jurisdiction was framed and on 3-12-2011, the application for condonation of delay was rejected for want of territorial jurisdiction. After receiving the certified copy of said order on 2-1-2012, the petitioner filed the present proceedings under Section 28 of the said Act along with an application for condonation of delay.

4. The respondent filed its reply to aforesaid application and took the stand that no sufficient cause had been made out for condoning the delay. It was further stated that though the petitioner was aware that the jurisdiction vested with the Court at Nagpur, the proceedings were filed at Pune. The Labour Court after considering the entire material on record came to the conclusion that the petitioner was negligent in prosecuting his case and, therefore, there was no ground to condone the delay.

The Industrial Court in the revision application filed by the petitioner confirmed the order passed by the Labour Court and rejected the revision application. These orders are under challenge in the present writ petition.

5. Shri S. R. Soni, learned Counsel appearing for the petitioner submitted that both the Courts erred in not accepting the reasons assigned by the petitioner for the delay as caused. He submitted that on the basis of legal advise received, the proceedings had been filed by him initially before the Labour Commissioner (Central) and thereafter at Pune. He submitted that said proceedings had been filed within thes prescribed period of limitation and merely because it was found that the said Forum had no jurisdiction, the same would not be a reason to refuse to condone the delay. He placed reliance on the decision of the Supreme Court in P. Sarathy vs. State Bank of India, (2000) 5 SCC 355 as well as the judgment of learned Single Judge in Jankiram Pandharinath Thorat vs. The Akot Municipal Council and another 2011(3) Mh.L.J. 702 : [2011(2) ALL MR 792].

6. Per contra, Shri A. P. Wachasunder, learned Counsel appearing for the respondent opposed the submissions. He submitted that the delay as caused was on account of the petitioner's invoking jurisdiction of those Forums which admittedly did not have jurisdiction. He submitted that the petitioner was well aware that the Labour Court at Pune had no jurisdiction and that the appropriate Government was the State Government. He submitted that the entire attempt of the petitioner to invoke jurisdiction of various forums was in fact, an exercise of forum shopping and, therefore, both the Courts were justified in not condoning the delay. He placed reliance on judgment of the Division Bench in Vikas Textiles vs. Sarva Shramik Sangh 1990 (1) CLR 257 and Pune District Central Co-operative Bank Ltd. vs. Hira Lal Ramchandra Gaikwad, 1999 (81) FLR 611.

7. I have considered the respective submissions and I have gone through the material placed on record. The provisions of Section 28(1) of the said Act and proviso thereto read thus:

"28. Procedure for dealing with complaints relating to unfair labour practices.

(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7 of this Act.

Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.

As per the proviso to Section 28(1) of the said Act, the Court can entertain a complaint after a period of 90 days from the date of the alleged occurrence if good and sufficient reasons are shown by the complainant for the delay. The expression "good and sufficient reasons" would in the context that it has been used mean bonafide and true reasons which if found to be in good faith and sufficient for the purposes of condoning the delay. The same would exclude reasons that are untrue, malafide and not in good faith. Such reasons would not be sufficient to condone the delay.

8. The observations of the Supreme Court in paragraphs 10 and 11 in Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81 : [2013(5) ALL MR 934 (S.C.)] can be usefully referred to :

"10. Arjun Singh v. Mohindra Kumar this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".

11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)"

9. The facts on record indicate that after the order of termination dated 15-2-2008 was served on the petitioner on 19-2-2008, he immediately approached the Labour Commissioner (Central) within ten days. Said proceedings were not entertained for want of jurisdiction vide order dated 16-6-2008. Immediately thereafter jurisdiction of the Labour Court at Pune was invoked. After said complaint was not entertained on account of absence of territorial jurisdiction, the petitioner after receiving the certified copies immediately filed the present proceedings. The aforesaid events indicate various steps being taken by the petitioner for seeking redressal of his grievance against the order of termination dated 15-2-2008. The jurisdiction as invoked was within a period of one month from the order of termination and thereafter from the order passed by the Labour Commissioner (Central) and lastly after the order passed by the Labour Court at Pune. All these events have been described in the application for condonation of delay and same are stated to have been taken on the basis of advice as received.

10. The Labour Court while refusing to condone the delay has referred to invocation of jurisdiction by the petitioner of the Labour Court in the year 1989. It has further observed that though he had filed the earlier complaint in the year 1989, he unnecessarily approached the Labour Commissioner (Central) at Nagpur. According to the learned Judge of the Labour Court, this amounted to negligence on the part of the petitioner. The Industrial Court while confirming aforesaid order observed that it could not re-appreciate the evidence in view of the limited scope under Section 44 of the said Act and rejected the revision application.

11. The Supreme Court in P. Sarthy (supra) has observed that for the purposes of excluding the time under Section 14 of the Limitation Act, the time spent before any Authority or Tribunal having the trappings of a Court can be taken into consideration. This decision has been followed by learned Single Judge in Jankiram Thorat, [2011(2) ALL MR 792] (supra).

As observed herein above, what was required to be considered was whether good and sufficient reasons were furnished by the petitioner for the period of delay. Merely because in the year 1989 the petitioner had invoked jurisdiction of the Labour Court at Pune where he was serving, the action of invoking the jurisdiction of the Labour Commissioner (Central) cannot be viewed as a negligent act. It is to be noted that the respondent - Bank is a Multi-State Co-operative Bank and said jurisdiction was invoked on the basis of advice received by the petitioner. The petitioner had nothing to gain by unnecessarily delaying the initiation of proceedings before the appropriate Forum. The aspect of forum shopping is not at all attracted. His services were already terminated. It is well settled that if the first Court has not condoned the delay then while considering challenge to said order the entire application and the reply can be considered by the superior Court afresh. The cause for delay is, therefore, found to be based on good and sufficient reasons for the same to be condoned.

12. The decision relied upon in the case of Vikas Textiles is regarding powers under Section 44 of the said Act. There can be no dispute about the scope of revisonal powers. If, however, it is found that the Labour Court had misdirected itself while considering the application for condonation of delay, it was necessary for the revisional Court to have exercised jurisdiction and in such case, it cannot be said that the findings recorded by the Labour Court cannot be gone into. Similarly, the decision in Pune District Central Co-operative Bank (supra) cannot be made applicable to the facts of the present case as the explanation furnished therein was not found to be sufficient.

13. In view of aforesaid discussion, it is clear that the order passed by the Labour Court rejecting the application for condoning the delay and the order passed by the Industrial Court affirming the said order cannot be sustained. The petitioner had furnished good and sufficient reasons for the delay to be condoned.

14. Hence, the following order is passed:

ORDER

(1) The order dated 1-4-2013 passed by the Labour Court as well as the order dated 20-3-2014 passed by the Industrial Court are set aside.

(2) The delay in filing the complaint stands condoned and the Labour Court shall decide the complaint in accordance with law on merits.

(3) Rule is made absolute in aforesaid terms. No costs.

Ordered accordingly.