1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 2624/2010. Municipal Council, Chandrapur. -: VERSUS :- Anil Ramaji Badghare. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 27, 2010. Heard Shri M.I.Dhatrak, learned Counsel for petitioner and Shri Anand Parchure, with Shri Sharma, learned Counsel for respondent. Petitioner / employer issued a letter dated 12.09.2001 proposing deductions from monthly salary of respondent. Respondent had earlier filed Writ Petition No. 517/1997 and that was allowed to be withdrawn on 23.11.2000 by the Division Bench of this Court and interim relief in the matter was vacated. Respondent at that time has filed Pursis stating that he hoped to resolve the controversy out of Court and therefore, he do not want to press that Writ 2 Petition and sought leave to withdraw. The above communication dated 12.09.2001 was issued after the withdrawal of Writ Petition. This communication was then questioned by the respondent by filing ULP Complaint No. 25/2002. Petitioners raised a preliminary objection to the maintainability of that complaint and on 03.12.2005 the learned Member of the Industrial Court disposed of that complaint as not maintainable. After this order another ULP No. 114/2006 came to be filed by respondent and in that complaint again the petitioners contended that it was not maintainable. By the impugned order dated 03.04.2010 the learned Member of Industrial Court has rejected that objection of petitioner / employer. In this background Shri Dhatrak, learned Counsel for petitioner employer contends that order passed below Exh.19 in ULP Complaint No.25/2002 had attained finality and hence complaint making same grievance could not have been filed again. Shri Parchure with Shri Sharma, learned Counsel contends that order below Exh.19 did not decide the controversy finally and as it noticed certain defects in prayer clause in that ULP Complaint, the complaint was dismissed. 3 The fresh complaint filed is with proper prayer clause and relief. In the alternative, it is also contended that as the amount is being deducted every month the cause of action is continuous and as the validity of the communication dated 12.09.2001 so far has not been adjudicated on merits, the controversy needs to be decided accordingly and there is no question of any res judicata. Withdrawal of earlier Writ Petition by present petitioner is not in dispute. Perusal of order of withdrawal shows that it expressly did not grant any opportunity to respondent to raise the grievance again, but then the fact that Pursis was filed before it has been noticed. The respondent then filed ULP Complaint No.25/2002 and raised same grievance and the learned Member of Industrial Court has found that complaint to be not maintainable. The said order was not challenged by the respondent and it attained finality. The form and contents of that complaints are not relevant because, the cause of action then available was sought to be ventilated by approaching the Court of law. It was for the respondent to file proper complaint or then the respondent could have withdrawn it with liberty to approach again on same cause of action. This course was not taken. The fresh complaint has been filed on same cause of action. 4 The contention that the issue was not decided on merits in complaint No. 25/2002 is therefore, misconceived. The cause of action in such situation also cannot be viewed as recurring one. Had ULP Complaint No.25/2002 been adjudicated on merits by the Industrial Court as sought to be urged by the learned Counsel for respondent, it is apparent that the second complaint seeking similar relief for subsequent period could not have been maintainable. I, therefore, find that the learned Member of the Industrial Court has exercised the jurisdiction erroneously by holding that there was no earlier adjudication on merits and hence, the principles of res judicata were not applicable. It also erred in holding that the communication dated 12.09.2001 was giving rise to continuous cause of action. The impugned order if therefore, quashed and set aside. ULP Complaint No.114/2006 as filed by the respondent before the Industrial Court, Chandrapur is held to be barred because of earlier order in ULP Complaint No.25/2002, and the same is accordingly disposed of. Writ Petition is dismissed with no order as to costs. At this stage, Shri Parchure, learned counsel for respondent seeks leave to challenge the earlier order passed below Exh.19 in ULP Complaint No.25/2002. He contend 5 that the recovery is being effect even today and hence cause of action is available even now. Shri Dhatrak, learned counsel for petitioner is opposing said request. If such remedy is still open to petitioner in law, he is free to take recourse to it and no liberty from this Court is required for that purpose. JUDGE Rgd.