1 14 wp 5628.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5628 OF 2011 Bhimashankar Ramchandra Khataokar .. Petitioner Vs. Maharashtra Seva Sangh .. Respondent Mr. P.M. Patel for Petitioner. Mr. R.R.Salvi and Mr. A.V.Lokhande for Respondent. CORAM: K.K. TATED, J. DATE : 25TH JULY, 2011 P.C. 1. Heard the learned counsel for the parties. 2. Rule. 3. Rule made returnable forthwith. 4. By consent matter is taken on board for final hearing at the stage of admission. 2 14 wp 5628.11 5. By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner – original Applicant challenges the order dated 22nd June, 2011 passed by the learned Member, Industrial Court, Pune, rejecting the Petitioner’s Interim Application (Exhibit U-2) restraining the Respondent from acting on transfer order dated 8th April, 2011. 6. It is the case of the Petitioner that the Petitioner is working from several years with the Respondent - Sangh at Pune. Initially, Respondent issued transfer order dated 30th August, 2010 transferring the Petitioner from Pune to Karkam, taluka Pandharpur, district Solapur. Pursuant to the said transfer order, the Petitioner made representation dated 19th October, 2010 to the Respondent. Pursuant to the said representation, the Respondent issued the letter dated 23rd December, 2010, staying the implementation of the transfer order dated 30th August, 2010. Thereafter, the Respondent issued order dated 8th April, 2011 directing the Petitioner to join his services at Karkam, taluka Pandharpur, District Solapur in their organisation as per transfer order dated 30th August, 2010. 7. Being aggrieved by the said order dated 8th April, 2011, the Petitioner filed joint Complaint along with her wife who was also transferred by 3 14 wp 5628.11 order dated 8th April, 2011 being Complaint (ULP) No.68 of 2011 under section 28(1) read with Items 3, 4, 7, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Union & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the said Act”) in the Industrial Court, Pune. In the said Complaint, the Petitioner filed Application for interim relief under section 30 (2) of the said Act for staying the effect and operation of the transfer order dated 8th April, 2011 and for other reliefs. In the said Application, the Respondent – Management filed their reply and opposed the same. The Industrial Court by its order dated 22nd June, 2011 rejected the Petitioner’s application for interim relief (Exhibit U-2) on the ground that the Petitioner filed Complaint on 11th April, 2011 and the same is barred by limitation. Whereas, his wife’s application was allowed directing the Respondent not to transfer her till they close their shop permanently. 8. Being aggrieved by the said order dated 22nd June, 2011 passed by the learned Member, Industrial Court, Pune, the Petitioner – original Applicant preferred the present Writ Petition. 9. The learned counsel appearing on behalf of Petitioner submits that the learned Judge failed to appreciate that the Complaint was not 4 14 wp 5628.11 barred by limitation as the order dated 30th August, 2010 was not to be made effective by the Respondent and treated the same as withdrawn and by another letter of transfer dated 8th April, 2011, the Respondent issued fresh order. The Complaint was filed on 11th April, 2011 and therefore, the same was filed well within 90 days of the cause of action having been arisen. He further submits that point of limitation was neither raised by the Respondent in their written statement and/or affidavit-in-reply to the interim application. Not only that the Industrial Court at the time of framing points for decision also did not raise a point regarding limitation. The Industrial Court raised only three points for his consideration which are as under: “1 Whether the Complainant has proved that the Respondent indulged in unfair labour practice? 2 Whether the balance of convenience is in favour of the complainant? 3. What order?” 10.He submits that the Industrial Court on its own held that the Complaint filed by the Petitioner on 11th April, 2011 was barred by limitation. He submits that the Industrial Court erred in coming to the conclusion that the Respondent – employer issued a transfer 5 14 wp 5628.11 order on 30th August, 2010 and therefore, the complaint filed by the Petitioner on 11th April, 2011 was barred by limitation. He submits that the Industrial Court failed to appreciate that initially the Respondent - employer transferred the Petitioner by transfer order dated 30th August, 2010 but the same was kept in abeyance as per the order dated 23rd December, 2010. Subsequently, the Respondent- Employer directed the Petitioner to join at the transfer place by order dated 8th April, 2011, therefore, the limitation for filing the Complaint starts from the date of order i.e. 8th April, 2011. In any case, without framing the point for consideration, the Industrial Court held that the Complaint filed by the Petitioner was barred by limitation and therefore, rejected the Petitioner’s interim application (Exhibit U-2). On the basis of these submissions, the learned counsel for the Petitioner states that the impugned order passed by the learned Member, Industrial Court, Pune dated 22nd June, 2011 is liable to be set aside. 11.On other hand, the learned counsel appearing on behalf of Respondent vehemently opposed the present Petition. He submits that the learned Member, Industrial Court, Pune considered the facts on the record as pleaded by the Petitioners in their Complaint and held 6 14 wp 5628.11 that the Complaint filed by the Petitioner was barred by limitation. He submits that actually transfer order is dated 30th August, 2010 but by letter dated 8th April, 2011 the Petitioner was directed to join at the new place. According to the learned counsel the limitation starts running from 30th August, 2010 and as such the Industrial Court, Pune rightly held that the Complaint filed by the Petitioner on 11th April, 2011 challenging the transfer order dated 30th April, 2010 is barred by limitation. 12.He further submits that the Petitioner neither in his Complaint nor in his application for interim relief relied on the Respondent’s letter dated 23rd December, 2010 i.e. Exhibit-B. He submits that as the Petitioner failed to rely on the letter dated 23rd December, 2010 before the Industrial Court, he cannot take shelter of the said letter in the present Petition and therefore, there is no substance in the submissions made by the learned counsel appearing on behalf of Petitioner and the Petition is liable to be dismissed. 13.The learned counsel appearing on behalf of the Respondent also made submission on merits of the matter, for consideration of the present writ petition, it is not necessary to go into the merits of the matter, at this stage. 7 14 wp 5628.11 14.I have gone through the impugned order dated 27th June, 2011 passed by the Member, Industrial Court, Pune, copy of the complaint filed by the Petitioner, Interim Application (Exhibit 2) filed by the Petitioner and reply filed by the Respondent. The Petitioner in his complaint in para 7 it is specifically stated that he filed the complaint under section 28 of the said Act, within 90 days from the transfer order dated 8th April, 2011. It is admitted fact that the Respondent neither in written statement nor in reply to the interim Application raised the issue about limitation. The Industrial Court on its own considering the facts and circumstances of the matter, held that the Complaint filed by the Petitioner is barred by limitation. Even the points raised by the Industrial Court for consideration do not cover the point of limitation. Only in para 5 of the impugned order, the Industrial Court considered the point of limitation. It is well settled principle of law that no one should be non-suited without giving opportunity to explain the facts of the matter. In the present case, neither Respondent raised any objection about limitation in their pleading nor the Industrial Court framed any point on limitation. Therefore, there was no opportunity to the Petitioner to meet the point of limitation. 8 14 wp 5628.11 15.Perusal of the order shows that the Tribunal has recorded a categorical finding that the Complaint filed by the Petitioner was barred by limitation. The limitation is a mixed question of law and facts. If a party is sought to be non suited on the ground of limitation, there should be specific issue and an opportunity to lead evidence. In the present case, no issue was framed specifically regarding limitation. In this situation, the Petitioner did not get an opportunity to prove the relevant facts and hence there was failure of justice. Therefore, considering these facts, I am of the opinion that the Industrial Court erred in rejecting the Petitioner’s Application for interim relief only on the ground of limitation without giving chance to the Petitioner to explain how the complaint filed by him is within limitation. 16.Therefore, the impugned order passed by the learned Member, Industrial Court, Pune dated 22nd June, 2011 in respect of Petitioner’s case is set aside. Matter is remanded to the Industrial Court at Pune to consider the Petitioner’s application for interim relief afresh after giving chance to the Petitioner to file additional documents and/or evidence in respect of the point of limitation. 17.No order as to costs. (K.K. TATED, J.)