bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5667 OF 2008 PETITION NO. 5667 OF 2008 PETITION NO. 5667 OF 2008 Mr.S.G.Gaikwad ... Petitioner v/s M/s. Philips India Ltd. ... Respondent Mr.Y.M.Pendse for the petitioner. Mr.S.D.Rege for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 1ST AUGUST, 2008 1ST AUGUST, 2008 1ST AUGUST, 2008 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith by consent. 2. The petitioner challenges the order passed in Misc. Application (IDA) No.22 of 2007 on 16.4.2008 as well as the ex-parte order dated 21.9.2005 in Reference (IDA) No.44 of 2001. 3. The petitioner’s services were terminated by the respondent employer. An industrial dispute was raised by him which was referred for adjudication on 9.2.2001. 4. It appears that the petitioner had not filed the statement of claim for almost four years and, therefore, 2 the Labour Court was constrained to dismiss the reference for want of prosecution. The petitioner then filed an application under Rule 26(2) of the Industrial Disputes (Bombay) Rules for restoring the reference. This application was filed on 14.7.2007 i.e. within the period of limitation prescribed under the Rules. The Labour Court by its order dated 16.4.2008 has refused to restore the application on the ground that the petitioner had not made out a good case on merits. The Labour Court has held that the petitioner had not explained as to why he was unable to file the statement of claim for four years due to which the reference was dismissed. The Labour Court has disbelieved the case of the petitioner that he could not attend the Court due to his illness. The Labour Court has then observed that there was no documentary evidence on record to indicate that the petitioner was ill or had some personal difficulty which prevented him from giving instructions to his advocate to file the statement of claim. 5. There is no doubt that there has been a delay on the part of the petitioner in filing the statement of claim. However, he has explained that the delay was caused because of his illness and that he was under the bonafide belief that after he had entrusted the matter to an advocate the advocate would prepare the statement 3 of claim to be filed before the Labour Court. The petitioner has stated that he realized that the reference was rejected on 21.9.2005 only when he met his advocate in June, 2007. 6. It appears that there has been some negligence on the part of the advocate appearing for the petitioner for which the petitioner should not be penalised. There is no doubt that the petitioner had remained present on most dates till the reference was dismissed. The petitioner should not be denied a hearing on merits as he has shown sufficient cause for not remaining present on the day when the reference was dismissed. In my opinion, therefore, the reference is required to be restored to file. 7. Rule made absolute. No order as to costs. 8. Reference (IDA) No.44 of 2001 is restored to file. However, the petitioner would not be entitled to back wages if granted from 9.2.2001 when the reference was made, till today. 9. Parties shall appear before the Third Labour Court, Thane on 1.9.2008.