:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2931 OF 2007 Kalyani Lemmerz Ltd. ..Petitioner Vs. Shri Ashok Vithal Kalagate and ors. ..Respondents Mr. J.P. Cama, Senior Advocate with Mr.Mahesh Londhe i/by M/s. Sanjay Udeshi and Co. for petitioner. Mr. N.A. Kulkarni for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 17, 2008. Date : January 17, 2008. Date : January 17, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Cama the learned Senior Counsel with Mr. Londhe i/by M/s. Sanjay Udeshi and Co. for petitioner and Mr. Kulkarni the learned counsel for the respondent-employee. Respondent No.2 be deleted forthwith. 2. Rule. Mr. Kulkarni waives service for the respondent. By consent of the parties, Rule is taken up for final hearing forthwith. :2: 3. This petition arises from the order dated 26/2/2007 passed by the learned Member of the Industrial Court at Pune in Complaint (ULP) No. 182 of 2006. The said complaint has been filed by the respondent under Items 3, 9, 10 of Schedule IV and Item 4(a) of Schedule II read with Section 28 of the M.R.T.U. and P.U.L.P. Act, 1971 (for short the Act). In the said complaint it has been specifically averred that the unfair labour practices alleged against the company have taken place on 3/4/2006 and thereafter every day and also on 25/5/06. The complaint was filed on or about 8/9/2006. The substantial prayers in the Complaint were for directions, (a) to cancel the deputation of Complainant and allow him to work in Chakan factory of the present petitioner-company in his original place and, (b) to pay Rs.1,00,000/- as compensation to the complainant. :3: 4. The petitioner-company filed its Written Statement and opposed the complaint both on the point of limitation as well as on merits. Though the complainant had prayed for condonation of delay in filing of the complaint, in the memo of the complaint itself, no separate application was filed along with the complaint to condone the delay, if any, caused in filing the complaint. The Company filed an application on or about 18/11/2006 which came to be marked as Exh.C-7 and prayed for framing of the preliminary issue reading as under:- "Whether the complaint is barred by limitation?" . By the impugned order, the said application has been rejected on the following reasoning:- "... Needless to say that as per the settled position of law labour disputes should not be adjudicated in peacemeal and all issues should be decided on merit. Similarly, it has been also laid down by the superior courts that the :4: unfair labour practice under item 9 is continuous and recurring cause of action and if continues till breach exists. Thus the complaint of alleged unfair labour practice under item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act is not barred by limitation. In view of this I do not think that there is any necessity to frame the preliminary issue regarding limitation that too before deciding the application for interim relief. The application filed on behalf of the respondent is devoid of substance and, therefore, rejected." 5. As noted earlier, the complaint was not filed only under Item 9 and, in fact, it is filed under Item 4(a) of Schedule II and Items 3, 9 and 10 of Schedule IV of the Act and prima facie it appears to have been filed beyond 90 days, if regards be had to the averments made in the complaint itself regarding the cause of action or on the day on which the alleged unfair labour practices were engaged by the company. Section 28(1) of the Act states that an employee may, :5: within 90 days of the occurrence of unfair labour practice, file a complaint before the Court competent to deal with the same. The proviso below Section 28(1) reads, "Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint." 6. The learned counsel for the respondent pointed out that the complainant had prayed for condonation of delay along with the other prayers in the complaint memo. This does not mean that it was not necessary for the complainant to file a separate application for condonation of delay and duly supported by an affidavit. Under Section 33 of the Act, the Industrial Court has framed the Industrial Court Regulations 1975 and Regulation No.101 of the said Regulations reads as under:- :6: "101. If a complaint under Section 28(i) of the Act covers any unfair labour practice which occurred more than 90 days before the complaint was filed, the complainant shall file alongwith the complaint a separate application, for condonation of delay. That application shall disclose separately and specifically each unfair labour practice which occurred more than 90 days before the complaint was filed and in respect of which condonation of delay is sought, the date of the occurrence thereof and the reasons for condonation of delay in respect thereof. Such an application shall be supported by an affidavit." 7. The procedure thus prescribes that the separate application for condonation of delay supported by an affidavit is filed. Mr. Kulkarni the learned counsel for the complainant stated that he will file a separate application within a period of three weeks from today and the application so filed should be decided expeditiously more so because an :7: application under Section 30(2) of the Act is pending in the complaint. 8. Hence the writ petition is allowed and the impugned order dated 26/2/2007 rejecting the application at C-7 is hereby quashed and set aside. The complainant shall file a separate application for condonation of delay supported by an affidavit within a period of three weeks from today and the same shall be heard and decided on its own merits as expeditiously as possible and in any case within six weeks from its presentation to the Industrial Court. A copy of such an application shall be served in advance on the learned Advocate for the Company before the Industrial Court and reply, if any, to the said application shall be filed within two weeks thereafter. 9. Rule is made absolute accordingly with no order as to costs. :8: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)