1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.5718 OF 2009 Kisan s/o Nathuji Gonge, Age 65 yrs., Occu. Pensioner, R/o Savkheda,( BK), Sillod, Tq. Sillod, Dist.Aurangabad. ... Petitioner Versus 1. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad. Through it’s Manager. 2. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad Through it’s Chairman . .... Respondents Mr.P.D.Suryawanshi, Advocate for petitioners. Mr.K.F.Shingare, Advocate for respondent Nos.1 and 2. CORAM : A.A.SAYED, J. DATED : 7th December, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. The application filed by the petitioner who was the employee of the Respondents for condonation of delay in filing his Complaint 2 under section 28, Item Nos.9 and 10 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ( hereinafter referred to as “ MRTU & PULP Act “) , has been rejected by the Industrial Court by order dated 17-04-2009 , which order is impugned in this petition. 3. The learned counsel for the petitioner submitted that there is no bar of limitation in so far as filing of Complaint under MRTU & PULP Act in respect of continuing and recurring cause of action relating to payment of benefits to an employee under a settlement. He relied upon Full Bench judgment of this Court in the case of Maharashtra State Road Transport Corporation, Nagpur V/s Premlal K.Gajbhiye, 2003 (3) Mh.L.J.1025. On the other hand the learned counsel for the respondent Nos.1 and 2 relies upon the judgment of the Apex Court in the case of Oriental Aroma Chemical Industries Ltd. V/s Gujarat Industrial Development Corporation and Anr. 2010 (5) Mh.L.J. 262. It is however noted that the latter decision is not under the MRTP & PULP Act and does not deal with the aspect of recurring cause of action. 4. The Industrial Court has observed in para no.7, of the impugned order as follows : 3 “ No doubt Sec.28 (1) proviso provides that court can condone the delay if the complaint is not filed within 90 days from the date of the alleged occurrence if good and sufficient reasons are shown by the applicant for the late filing of the complaint. I have already quoted the contentions raised in the application and the reply. It appears from the documents produced along with application that as the applicant retired at the age of 58 years and seven years thereafter this application is filed. No delay has been explained why the application is not filed within 90 days at least from the date of the retirement there is no correspondence by the complainant with the respondent. The delay of seven years has not been explained and therefore the ratio laid down in the judgment referred supra has no application. If the complainant would have been in the employment then in that case action would have continued and there would not have been reason for delay or question of considering the delay. The applicant ought to have filed the petition within reasonable time or the delay ought to have been explained by showing good and sufficient reasons for the delay but the applicant is silent and therefore I have no alternate but to say that no case is made out by the applicant for condonation of delay for the cause of action which was available to the applicant during 4 his life time for taking action against the respondents. In this particular case and because of the peculiar facts my findings on the point is in the negative and I have no alternate but to reject the application on peculiar facts of the case. “ 5. It is noticed that in respect of a batch of 52 other employees of the respondents, who were in the employment and who had approached the Industrial Court by filing Complaint (ULP) No.25 of 2007 after substantial delay in respect of benefits under the same Settlement / Agreement dated 27-10-1996 of which the petitioners are claiming benefit of , the Industrial Court had not only condoned the delay, but also proceeded to hold vide its order dated 27-08-2008 that the terms & conditions of Agreement dated 27-10-1996, were binding upon the respondents and that the said employee were entitled to the benefits and the respondents were accordingly directed to release the benefits. 6. Undisputedly, when the petitioner was in service (before retiring ) the Agreement dated 27-10-1996 was in existence and in force. While in the case of aforesaid 52 employees who were in service the delay was condoned in their Complaint (ULP) No.25 of 5 2007, however in the case of the Complaint of the petitioner the delay was not condoned and the application for condonation of delay was rejected by the impugned order on the ground that the Applicant/petitioner is silent and has not shown good and sufficient cause. The impugned order states and suggest that had the employee been in service, the delay would have been condoned. It was infact condoned in case of other above mentioned employees who were in service. 7. In the peculiar facts of this case, in my view, in the interest of justice an opportunity ought to be given petitioner employee to explain the delay in filing his Complaint. In the circumstances, I am inclined to remit the matter back to the Industrial Court to enable the petitioner to explain the delay which has occasioned in filing the Complaint by filing necessary Affidavit /additional Affidavit. It is accordingly ordered. The petitioner shall appear before the Industrial Court on 20th January at 11.00 a.m. and as such notice for hearing shall stand dispensed with. 8. All contentions are kept open including that the cause of action is recurring and the bar of limitation would not apply. Industrial Court shall decide the application afresh on its own merits and in 6 accordance with law without being influenced by the impugned order. 09. Rule is disposed of in the aforesaid terms with no order as to cost. [A.A.SAYED, J.] dsp/wp4412.09