-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1679 OF 1997 1. Yeshwant R. Kadam ) 2. D.G. Kanoje ) 3. S.L. Raut ) 4. D.S. Vidhwans ) 5. S. Shinde ) 6. S.M. Kanale ) 7. A.P. Deodhar ) 8. Arun G. Patil ) 9. P.S. Valimbe ) 10.G.P. Waradkar ) 11.P.G. Pednekar ) 12.C.V. Bhingardive ) 13.P.G. More ) 14.P.L. Sawant ) 15.M.G. Chauhan ) C/o. Y.R. Kadam, Buiding No. 163/5079 ) Kannamwar Nagar no.1, Vikhroli (East), ) Mumbai-400 083. )..Petitioners versus 1. Vidyut Metallics Limited, ) Bombay Agra Road, P.O. Wagle Industrial ) Estate, Thane-400 604 ) 2. Shri J.P. Limaye, ) Member, Industrial Court, Thane. )..Respondents Mr. Yogendra M. Pendse for the petitioners. Mr. R.S. Pai, instructedby M/s. Sanjay Udeshi & Company, for the first respondent. CORAM: P.B. MAJMUDAR, J. DATE: JULY 22, 2008. -2- ORAL JUDGMENT By filing this petition, the petitioners have challenged the order passed by the Industrial Court, Thane, dated 31st October, 1996, in Complaint (ULP) Nos. 251 to 259 of 1990 and 361 to 366 of 1990. The petitioners herein had filed individual complaints against the first respondent on 30th May, 1990, alleging unfair labour practices under items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971. 2. The case of the concerned workman was that he was in employment since long and even though he was doing the work of regular and perennial nature, he was treated as a “trainee”. It is also the case of the workman that though he was doing full time work he was paid a meagre stipend at the rate of Rs.400/- per month. According to the workman, the management has acted in a discriminatory manner and has indulged into unfair labour practices as per item 5 of Schedule IV of the MRTU & PULP Act. It is the case of the concerned workman that the services of the concerned workman have been terminated by way of oral termination on a particular date. On this ground, as stated above, the complaints were filed. 3. It is the case of the complainant that even though socalled oral termination order was passed long back, and since an industrial dispute was -3- raised by the Union on behalf of certain workmen, the petitioners were under the impression that the Union has also undertaken the cause of the present petitioners but having realised later on that the Union had not raised any dispute ventillating the grievances of the present petitioners that individual complaints have been filed later on. It is also the case of the workmen that after the so-called oral termination of their employment, the management has made fresh recruitment by appointing other employees who were junior to the petitioners and that is how the respondents have committed violation of Section 25-H of the Industrial Disputes Act. The complaint was decided by the Industrial Court, Thane, and by judgment and order dated 31st October, 1996, the Industrial Court came to the conclusion that the complaint filed by the individual workman was barred by limitation and no case was made out for condonation of delay. Accordingly the complaints were held to be time barred. The Industrial Court has also made further incidental observation to the effect that as the complainant himself has admitted his status as a “trainee” throughout, he cannot claim the status of workman in the complaint. It is the aforesaid order which is impugned in the present petition. 4. This petition has been admitted and is pending before this Court since 1997 and now it has reached final hearing. During the course of hearing, Mr. Pendse, the learned counsel for the petitioners, submitted that the petitioners would like to raise an appropriate industrial dispute under the -4- provisions of the Industrial Disputes Act, 1947 challenging the oral termination as well as challenging the arbitrary action of the management in not giving them the status of permanency and terminating the services after a long period without following the procedure prescribed under the Industrial Disputes Act. Mr. Pendse has further submitted that for raising a dispute under the Industrial Disputes Act, no time limit is prescribed unlike Section 28 of the MRTU & PULP Act. He submitted that it is true that normally such a dispute is required to be made within a reasonable period. He, however, submitted that looking to the facts of the present case it is clear that the petitioners had tried to raise the grievance within the reasonable time. 5. Mr. Pai, the learned counsel for the respondent, on the other hand, submitted that he has no objection, if the petitioners are permitted to withdraw this petition in order to raise substantive industrial dispute under the provisions of the Industrial Disputes Act. He, however, submitted that in case such a dispute is raised, the respondent management should be permitted to take all available points in accordance with law. Mr. Pai has also fairly submitted that the first respondent will not take an objection to the effect that since the complaint filed by the workman has been rejected by the Industrial Court under the MRTU & PULP Act, such dispute is not maintainable, as the complaint was rejected on the ground of limitation. Mr. Pai has also submitted that under Section 59 of the MRTU & PULP Act, once a complaint -5- is rejected, no independent dispute thereafter can be raised under the provisions of the Industrial Disputes Act. He, however, submitted that since the complaint is dismissed on the ground of limitation, the management will not oppose that such a complaint is not maintainable as per Section 59 of the MRTU & PULP Act. 6. Considering the aforesaid aspect, the petitioners are permitted to withdraw this petition with a view to raise substantial industrial dispute under the Industrial Disputes Act. If any such dispute is raised and if the same is referred by the Government to the appropriate Court for adjudication, the concerned Court to whom the dispute is referred for adjudication, if any, shall decide the reference on merits, without being influenced by the fact that the complainant had resorted to the provisions of the MRTU & PULP Act and that such complaint was dismissed. The Respondents are also permitted to take all available points in defence in accordance with law including the point as to whether such dispute is raised belatedly or whether it suffered from delay and laches. On this aspect, this Court is not expressing any opinion as it is for the appropriate authority or Court to consider this aspect. However, the argument of Mr. Pendse is also noted to the effect that the complaint was filed in the year 1990 and thereafter the matter was pending either before the Industrial Court or this Court and, therefore, the said period should be excluded and should not be considered while deciding the question of delay -6- and laches as the time spent in judicial proceedings is required to be excluded even under the provisions of the Limitation Act. 7. The proceedings are pending in the Court of law since 1990. However, the question of delay for earlier period upto 1990 i.e. till the so- called oral termination order was passed is left open for the consideration of the concerned Court or to the appropriate authority. On this point, this Court is not expressing any opinion. As and when if any such point is raised, it is for the concerned Court or the concerned authority to decide this question in accordance with law. Considering the fact that considerable time has passed since the original complaints were filed, the concerned authority may expedite the proceedings. The appropriate authority in charge of the matter may expedite the proceedings and ultimately if the dispute is referred to the appropriate Court, the concerned Court may also expedite the adjudication of the dispute so that the dispute can be adjudicated within a reasonable time. It is clarified that all issues are kept open before the appropriate forum and by this order this Court has merely permitted the petitioners to withdraw the petition with a view to avail the remedy under the Industrial Disputes Act, 1947. As pointed out earlier, the order of the Industrial Court impugned in this petition shall not come in the way of the petitioners at the time of raising dispute under the Industrial Disputes Act, 1947. It will be open to both the sides to lead whatever evidence they want to lead before the appropriate -7- forum. It is hoped that the concerned authority may expedite the proceedings in order to see that the matter is not further delayed. 8. In view of what is stated above, the petitioners are permitted to withdraw the petition. The Petition is accordingly disposed of as withdrawn. Rule is discharged. No order as to costs. P.B. MAJMUDAR, J.