1 2-9-87-09.sxw Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 87 OF 2009 IN WRIT PETITION NO. 4991 OF 2008 Central Iron Works, .. Appellants. through its Partners : Shri Mukund Vishnupant Utkur & Anr. V/s. Ananda Maruti Majgaonkar & 15 Ors. .. Respondents. --- Mr.J.P.Cama, Sr.Advocate a/w. M.S.Topkar for the Appellants. Mr. Amit Borkar for the Respondents. --- CORAM: D.K.DESHMUKH AND N.D.DESHPANDE,JJ. DATED: 2nd SEPTEMBER,2010 P.C.: 1 Admit. Heard finally by consent of the parties. 2 By this Appeal, the appellants challenged the order dated 18th November, 2008 passed in writ petition no. 4991/2008. By that order, the learned single 2 2-9-87-09.sxw Judge of this court has allowed that petition. The relevant facts are that a Complaint (ULP) No.2/1989 was filed by the Mechanical Va Engineering Kamgar Sangh. The said complaint was filed under Items 9 & 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the  Act for short). The complaint was made by the Complainant in its capacity as Trade Union. There were two respondents  one Central Iron Works and another -Anil Vishnupant Utkur. In paragraph 4 of the complaint it was stated - The Respondent No.1 is a Partnership concern and duly registered under the Partnership Act. The Respondent No.2 is a Managing Partner and he is acting and respondent no.1 establishment. 3 In the complaint it was contended that the respondents are guilty of unfair labour practices and a direction was sought against the respondents to re-open their industrial establishment and allow employees to resume their duties. A direction was also sought for payment of wages to the employees. 3 2-9-87-09.sxw It appears that the written statement was filed by respondent no.2 Anil Vishnupant Utkur. The complaint was decided by the Industrial Court by order dated 15.04.1994. It is clear from the order that though written statement was filed by respondent no.2, there was no evidence led and the complaint was not contested. In this situation, the Industrial Court held that closure of the establishment is illegal and invalid and directed the respondents to pay wages of the employees from 04.04.1985. An application was filed for setting aside the order passed on the complaint and for restoration of the complaint by two partners by name - Mukund V. Utkur and Smt.Prabha G. Kelkar. It was claimed that the Central Iron Works is a partnership firm having five partners. Only one partner was joined as a party to the complaint. It was contended that all partners including the partners who had applied for setting aside the order were necessary parties to the complaint. It was claimed that the notice of the complaint was not served on the partnership firm and it was served only on respondent no.2. It was claimed that the 4 2-9-87-09.sxw relationship between other partners and the respondent was strained. The respondent no.2 was not working partner and had no authority to represent the firm. It was claimed that therefore, the order has been passed without granting an opportunity of being heard to the employer. It was claimed that the trade union which had filed the complaint; its registration was cancelled and therefore, it could not maintain the complaint. It was also claimed that the compliant itself was barred by law of limitation. The appellants claimed that they became aware of the order only in February, 2006. They applied for certified copy of the order and filed the application. The Industrial Court decided the application by the order dated 10.06.2008. The Industrial Court found that the applicants who were partners of the firm were not joined as party to the complaint. It also recorded a finding that the partnership firm which was joined as party was also not served with the notice. He also recorded findings that the applicants had no knowledge about the proceedings. He also recorded a finding that the relationship between partners who were joined 5 2-9-87-09.sxw as party and other partners including the applicants were not cordial. The Industrial Court by a detailed order allowed the application and set aside the order passed in the complaint and restored the complaint for fresh decision. Against this order writ petition no. 4991/2008 was filed. This writ petition was filed not by the trade union which had filed the complaint but by 15 individuals, challenging the order of the Industrial Court. That writ petition has been decided by the order dated 18th November, 2008 by the learned single Judge of this court. The learned single Judge has set aside the order passed by the Industrial Court and has restored the earlier order passed by the Industrial Court. 4 We have heard the learned counsel appearing for both the sides. It is clear from the order impugned in the petition that it was pointed out to the learned single Judge that the original order passed on the complaint was the order which was ab initio void order because the complaint itself was barred by limitation. It was claimed that though this 6 2-9-87-09.sxw contention was raised in the written statement filed by respondent no.2, the Industrial Court has not dealt with this contention and therefore, the Industrial Court was justified in setting aside that order. The learned single Judge has rejected this contention and held that this contention could have been raised only while challenging the order passed on the complaint in a writ petition before this court. The relevant paragraph is paragraph 12 of the said order which reads as under : 12. A contention has been raised on behalf of the respondents that the complaint itself was barred by limitation. Although the closure was allegedly effected on 25.05.1985, the complaint was filed in March, 1989, points out the learned counsel for the Respondents. This contention was raised in the written statement filed by Respondent No. 3 on behalf of the firm and for himself. The Industrial Court, while deciding the Complaint (ULP) No.2 of 1989, has not dealt with this issue specifically. However, the Complaint was allowed. Therefore, if the firm had any grievance about the order, it could have challenged the same in this Court. For reasons best known to the Respondents, they chose not to do so. The Respondents therefore cannot raise this issue now after a lapse of more than twelve years. 7 2-9-87-09.sxw Section 28 of the Act lays down the period of limitation for filing a complaint. Sub-section 2 of section 29 of the Limitation Act reads as under : (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or by local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law . Thus it is clear from the provisions of sub-section 2 of section 29 of the Limitation Act that if a special law provides a different period of limitation than the one which is provided by the Schedule to the Limitation Act for making an application to the Court, the provisions contained in section 3 and sections 4 8 2-9-87-09.sxw to 24 of the Limitation Act, to the extent there is no contrary provision contained in the special law, will apply. In our opinion, therefore, to an application made before the Industrial Court, provisions of section 3 of the Limitation Act will apply. Sub- section 1 of section 3 of the Limitation Act is relevant for our purpose which reads as under : Sub-section (1) of S.3 : Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Sub-section (1) of Section 3 of the Limitation Act casts a duty on the court to dismiss any application which it finds to be barred by the law of limitation although limitation has not been set up as a defence. Thus the order made in a complaint which is barred by law of limitation would be an order which is ab initio void. In our opinion, therefore, if such an order is set aside by the Industrial Court then the High 9 2-9-87-09.sxw Court cannot in its extra ordinary jurisdiction under the constitution interfere with such an order. 5 What is further to be seen is that it was pointed out to the learned single Judge that the trade union which had filed the complaint was not in existence in the eye of law because its registration was cancelled and therefore, the compliant itself was not maintainable. The learned single Judge had dealt with this contention in paragraph 14 of her order, which reads as under : 14. It is trite that the union merely represents the workmen. The complaint which was filed under Items 9 and 10 of Schedule IV of the MRTU & PULP Act, could have been filed by all the workmen themselves. Individual complaints could also have been filed by the workmen. Therefore, in my opinion, merely because the complaint was filed by a union whose registration was cancelled, it would not amount to deception or fraud as contended on behalf of the respondents as no unfair advantage has been taken over the firm and its partners. 10 2-9-87-09.sxw Perusal of the provisions of section 28 of the Act shows that a complaint can be filed by any Union or by any employee or any employer or any investigating officer. Insofar as, the present case is concerned, the complaint was filed by the Mechanical Va Engineering Kamgar Sangh, which described itself as a Trade Union and claimed that it is a Trade Union duly registered under the Trade Unions Act. It is thus clear that the complaint was not filed by any employee. It is clear from the record that admittedly, the registration of the Trade Union was cancelled, therefore, it was not entitled to maintain the complaint. Merely because that compliant could have been filed by the employees, a complaint filed by the trade union does not become a complaint filed by the employees. In our opinion, the observation made by the learned single Judge that merely because the complaint was filed by a union whose registration was cancelled, it would not amount to deception or fraud , suffers from non application of mind. In our opinion, there was no question of there been any deception or 11 2-9-87-09.sxw fraud once it is established that the registration of the trade union is cancelled, the complaint would not be maintainable unless it is suitably amended, and, therefore, no order in law can be passed in such a compliant. If an order is passed by the Industrial Court in such a complaint in favour of the complainant and if the Industrial Court itself sets aside such an order, then in our opinion, the High Court would not be justified in interfering with such an order in its extra ordinary jurisdiction. 6 There was a finding of fact recorded by the Industrial Court that the notice of the complaint was not served on the partnership firm. Other partners than the respondent no.3 were not even joined as a party, therefore, obviously notice of the compliant was not even served on them and therefore, the Industrial Court held that there was no question of other partners including the applicants having knowledge of the order and, therefore, it is held that the application was within the period of limitation. The learned single Judge in this 12 2-9-87-09.sxw situation,really speaking should not have interfered with the order. 7 The learned counsel appearing on behalf the respondents submitted that there was delay in making application for setting aside the order passed by the Industrial Court and therefore, according to the learned counsel the learned single Judge was justified in setting aside the order. It is sub-section 2 of section 31 which deals with the power of the court to set aside an order which has been made ex-parte. It reads as under : Sub-section (2) of S. 31 : 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 non-appearance of the aggrieved party, it may set aside the order so made, and shall appoint a date for proceeding with the matter. 13 2-9-87-09.sxw Perusal of the above provision shows that an application for setting aside ex-parte order can be made by the aggrieved party within 30 days of the receipt of copy of the order. It does not lay down that the period of limitation shall start from the date of the knowledge of the order. In the present case, in our opinion, as the partners of the partnership firm, specially the applicants, who had made the application for setting aside the order, were not joined as party, there was no question of there being any delay on their part in applying for setting aside the order, specially when it is apparent on the face of the record that the order passed by the Industrial Court was ab initio void order inasmuch as it was made in a complaint which was filed by a party which was not in existence and the complaint was barred by law of limitation. In our opinion, on being pointed out that the order that has been set aside by the Industrial Court, which was impugned before the learned single Judge, was an order which was ab initio void, in our opinion, the learned single Judge should not have entertained the petition. Taking overall 14 2-9-87-09.sxw view of the matter, in our opinion, the following order would meet the ends of justice : ORDER i Appeal is allowed. ii Order dated 18th February, 2008 passed in writ petition no. 4991 of 2008 is set aside. That writ petition is dismissed. iii Appeal is disposed of accordingly. At this stage, a request is made for stay of this order. In our opinion, the request cannot be granted because grant of stay will revive the order which we have found to be an ab initio void order. The request is rejected. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.) .....