( 1 ) WP4880-08 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4880 OF 2008 1. The Agricultural Produce Market Committee, Udgir, through its Chairman, Govindrao s/o Arjunrao Biradar, R/o Udgir, Tq. Udgir, District Latur. 2. The Secretary, The Agricultural Produce Market Committee, Udgir. PETITIONERS VERSUS 1. The Dy. District Registrar, Co-operative Societies, Latur. 2. Chandrakant s/o Virshettiappa Bavge, R/o Dam Road, Udgir. 3. Shri Pandit s/o Kondiba Somuse, R/o Udgir, Dist. Latur. 4. Shri Baburao s/o Pandharinath Natkar, R/o Udgir, Dist. Latur. RESPONDENTS ..... Mr. A.N. Irpatgire, advocate for the petitioners. Mr. N.H. Borade, AGP for the respondent No. 1. Mr. M.B. Kolpe, advocate holding for Mr. U.L. Manale, advocate for respondent No. 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th January, 2010] ORAL JUDGEMENT : 1. This petition was taken up for final hearing. ( 2 ) WP4880-08 By consent, it is heard finally and is being disposed of at the peremptory stage. 2. Admittedly, the respondents No. 2, 3 and 4 were serving as Junior Clerk on Establishment of the petitioner – Agricultural Produce Market Committee, Udgir. There were promotional posts available in the month of September, 2006. By virtue of resolution dated 03-09-2006, the respondents No. 3 and 4 were promoted as Cashier and Accountant, respectively. Though the respondent No. 2 was senior in the seniority list of the Junior Clerk cadre, yet, he was side-tracked. He, therefore, challenged the supercession by filing complaint under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “MRTU & PULP Act”). The respondent No. 2 asserted that the petitioner adopted unfair labour practices and erroneously superseded him while granting promotion though he had put up unblemished service. The learned Member of the Industrial Court, Latur held that the respondent No. 2 was subjected to unfair labour ( 3 ) WP4880-08 practices by the petitioner – Agricultural Produce Market Committee. Consequently, his complaint application bearing Complaint (ULP) No. 13/2007 was allowed. Aggrieved thereby, the Agricultural Produce Market Committee has filed the present petition. 3. Heard learned counsel. 4. The fact that the respondent No. 2 was initially appointed on 01-02-1988 as a daily wager and was subsequently appointed as Junior Clerk on 01-02-1993 is undisputed. There is no dispute about the fact that the respondents No. 3 and 4 were juniors to the respondent No. 2 in the seniority list which was drawn by the petitioner – Agricultural Produce Market Committee. The method of promotion is envisaged in the Agricultural Produce Market Committee Employees Service (Provident Fund, Travelling Allowance, Appointment) Rules. In particular, Rule 46 of the said Rules deals with the procedure for grant of promotion. On plain reading of Rule 46, it is manifestly clear that the promotion is to be granted in accordance with the ( 4 ) WP4880-08 seniority. It is only in an exceptional work that after recording due reasons, the Agricultural Produce Market Committee may grant promotion to any other employee on any promotional post. There is one rider provided under Rule 46. It is only in case where an employee is subjected to penalty under Rule 102 of the Maharashtra Agricultural Produce Market (Regulation) Rules, 1967 that such employee shall be deemed to be placed at the last position in the seniority list. In other words, such employee on whose penalty is inflicted within the meaning of Rule 102, will temporarily lose his seniority position and the seniority position will tumble down to the last number available with reference to juxtaposition of the date of consideration of promotional avenue. It is but natural that the respondent No. 2 could be superseded only if the Agricultural Produce Market Committee could have made out an exceptional case and by giving sufficient reasons the claim of the respondent No. 2 might have been denied, or in case he was subjected to penalty prior to the resolution in question. ( 5 ) WP4880-08 5. Mr. Irpatgire advanced three submissions. First, he contended that the complaint filed by the respondent No. 2 was barred by limitation and there was no separate application for condonation of delay. Therefore, the complaint could not have been entertained by the learned Member of the Industrial Court. Secondly, he contended that the Industrial Court had no jurisdiction to entertain the complaint in as much as basically, the challenge was to the resolution dated 03-09-2006 which can be challenged only before the appropriate forum provided under the Agricultural Produce Market Committee Act, 1963 and Regulations made thereunder. Thirdly, he contended that the resolution dated 03-09-2006 reflects as to why the promotion was being given to the respondents No. 3 and 4 on basis of the seniority list and there is reference to Rule 46 which is sufficient compliance of the procedure. He would point out further that the respondent No. 2 was subjected to penalty of one month’s suspension vide communication dated 13-12-2006 which was very much before the Industrial Tribunal at the relevant time and ( 6 ) WP4880-08 yet, the same was not duly considered. 6. So far as the first contention is concerned, it appears that objection regarding limitation was raised in the written statement of the petitioner, but no issue was raised in this behalf. However, the impugned judgement does not show that argument was advanced regarding the bar of limitation. Nor any effort was made to insist for framing of issue as regards the limitation. The denial of promotion to the respondent No. 2 could be termed as continuous cause of action and, therefore, limitation as provided under section 28 of the MRTU & PULP Act is not strictly applicable. A Division Bench of this Court in “Regional Manager, Maharashtra State Road Transport Corporation, Nagpur and another v. Regional Secretary, Maharashtra State Transport Kamgar Sangathana, Karanja” 1984 LAB.I.C. 1721, held that question of limitation would be inapplicable where the cause of action is of continuous nature. That apart, the Tribunal has the power to entertain the complaint as has been clearly envisaged in ( 7 ) WP4880-08 section 28 of the MRTU & PULP Act. The proviso appended to section 28 (1) reads as follows : “Provided that the Court may entertain a complaint after the period of 90 days from the date of alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.” It is pertinent to note that the Industrial Court has discretionary power to entertain the complaint if it is noticed that there were good and sufficient reasons shown by the complainant for the delay which had occurred in filing of the complaint. Since the complaint was entertained by the Industrial Court, it will have to be said that such discretion was used in favour of the respondent No. 2. Moreover, the cause of action did not start running from the date of the resolution dated 03-09-2006, but actually, it arose only from the date on which the respondents No. 3 or 4 had taken charge of the promotional post. Such dates are not clearly stated by either party. In the complaint, however, it is ( 8 ) WP4880-08 categorically stated that on 14-01-2007, the respondent No. 2 was not assigned any work. It is further stated that charge of his post was given to another person on 31-01-2007. Thus, prima facie, the respondent No. 2 got knowledge of the alleged denial of promotion on 31-01-2007. The complaint filed on 19-04-2007 seems to be within period of 90 days from such date. Hence, the objection regarding bar of limitation is rejected. 7. Coming to the another submission of Mr. Irpatgire, it is worthy to be noticed that though the respondent No. 2 prayed for declaration regarding legality and voidness of the resolution dated 03-09-2006, yet, it was not the main relief claimed by him. He was aggrieved by the act of denial of promotion to him. Had it been a fact that the resolution of the Agricultural Produce Market Committee had no concern with the service matter of the respondent No.2, then perhaps the jurisdictional issue could have arisen. The Industrial Court had the jurisdiction to decide whether unfair labour practices were adopted by the petitioner – Agricultural Produce Market Committee or not. The issue ( 9 ) WP4880-08 regarding correctness or validity of the resolution dated 03-09-2006 was only incidental in the said proceedings. Obviously, it cannot be said that the Industrial Court had no jurisdiction to entertain the complaint. 8. So far as denial of promotion to the respondent No. 2 is concerned, it is pertinent to note that as on the date of resolution dated 03-09-2006, there was no penalty imposed on the respondent No.2. He was only served with a notice as to why departmental action under Rule 102 (7) be not taken against him. It appears that he was subsequently suspended for period of one month as per provision of Rule 102 (5), vide communication dated 13-12-2006. However, this communication is post- resolution dated 03-09-2006 and could not be, therefore, considered as a ground for denial of promotion to the respondent No.2. In any case, due to his subsequent suspension for period of one month, it cannot be said that his seniority position had changed as on the date of his consideration for the promotional post. The petitioner was required to consider juxtaposition of ( 10 ) WP4880-08 seniority as on the date when the respondents No. 2 to 4 were in the cadre for consideration of promotional avenue. When they were under zone of consideration, the respondent No. 2 had not lost his seniority position and, therefore, the subsequent penalty has no relevance. The resolution dated 03-09-2006 also does not make out a good case to show that on account of exceptional circumstances, the respondent No. 2 was side-tracked for the purpose of promotion. No tangible reasons are ascribed for denial of promotion to him. Considering these aspects, I do not find any substantial error committed by the learned Member of the Industrial Court while allowing the complaint application filed by the respondent No.2. 9. For the reasons aforestated, the petition is destitute of merits and as such, is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp4880-08 ( 11 ) WP4880-08