1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.4412 OF 2009 Janardhan Totaram Jadhav (deceased through L.Rs.) 1-a Smt.Yeshodabai Janardhan Jadhav, Age 58 years, Occu.Household, R/o Waghera, Tq.Sillod, Dist.Aurangabad. 1-b Sanjay s/o Janardhan Jadhav Age 38 years, Occu.Service, R/o as above. 1-c Uttam s/o Janardhan Jadhav, Age 29 yrs, Occu.Nil, R/o as above. ... Petitioners Versus 1. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd. Aurangabad, Kranti Chowk, Aurangabad, Through it’s Manager, 2. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd. Aurangabad, Kranti Chowk, Aurangabad, Through it’s Chairman. ... Respondents Mr.P.D.Suryawanshi, Advocate for petitioners. Mr.C.R.Thorat, Advocate for respondent Nos. 1 and 2. WITH WRIT PETITION NO.6167 OF 2009 Vithal s/o Harishchandra Baviskar (deceased through L.Rs.) 2 1-a Smt.Subhadrabhai Vithal Baviskar, Age 58 yrs. Occu.Household, R/o Gadge Maharaj Chowk, Sillod, Tq.Sillod, Dist.Aurangabad. 1-b Ganesh S/o Vithal Baviskar Age 22 yrs, Occ.Nil R/o As above. ... Petitioners Versus 1. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad. Through it’s Manager, 2. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad, Through it’s Chairman. ... Respondents. Mr.P.D.Suryawanshi, Advocate for petitioners. Mr.C.R.Thorat, Advocate for respondent Nos.1 and 2. WITH WRIT PETITION NO.4489 OF 2009 Vikram Shenphadu Devare, (deceased through L.Rs.) 1-a Avinash Vikram Devare (Patil) Age 34 yrs, Occu.Business, R/o N-11, 1-3, 16/1,Gajanan Nagar, Aurangabad Dist.Aurangabad. 1-b Manoj Vikram Devare (Patil) Age 29 yrs, Occu.Business, R/o as above. 3 1-c Sindhubai w/o Vikram Devare ( Patil) Age 29 yrs, Occu.Business, R/o. As above. ... Petitioners Versus 1. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad. Through it’s Manager. 2. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad, Through it’s Chairman. .. Respondents Mr.P.D.Suryawanshi, Advocate for petitioners. Mr.K.F.Shingare, Advocate for respondent Nos.1 and 2. WITH WRIT PETITION NO.5779 OF 2009 Dagajirao s/o Sitaram Wankhede, Deceased through his L.Rs. 1. Leelabai W/o Dagajirao Wankhede, Age 59 yrs, Occu.Household, R/o Plot No.7, N-9,B-Sector,Cidco, Aurangabad. 2. Sanjay Dagajirao Wankhede, Age 39 yrs. Occu.Service, R/o As above. 3. Sunil Dagajirao Wankhede, Age 37 years, Occu.Service, R/o as above. ... Petitioners Versus 4 1. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd. Aurangabad, Kranti Chowk, Aurangabad. Through it’s Manager. 2. Aurangabad Zilla Sahakari Krushi & Gramin Bahuddeshiya Vikas Bank Ltd., Aurangabad, Kranti Chowk, Aurangabad, Through it’s Chairman. ... Respondents Mr.P.D.Suryawanshi, Advocate for petitioners. Mr.K.F.Shingare, Advocate for respondent Nos.1 and 2. CORAM : A.A.SAYED, J. DATED : 7th December, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. The applications filed by the petitioners who are the heirs of the deceased employee of the Respondents for condonation of delay in filing their Complaint under section 28, Item Nos.9 and 10 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ( hereinafter referred to as “ MRTU & PULP Act “), has been rejected by the Industrial Court by order dated 17-04-2009 , which order is impugned in these petitions. 5 3. The learned counsel for the petitioners submitted that there is no bar of limitation in so far as filing of Complaint under MRTU & PULP Act in respect of continuing and recurring cause of action relating to payment of benefits to an employee under a settlement. He relied upon Full Bench judgment of this Court in the case of Maharashtra State Road Transport Corporation, Nagpur V/s Premlal K.Gajbhiye, 2003 (3) Mh.L.J.1025. On the other hand the learned counsel for the respondent Nos.1 and 2 relies upon the judgment of the Apex Court in the case of Oriental Aroma Chemical Industries Ltd. V/s Gujarat Industrial Development Corporation and Anr. 2010 (5) Mh.L.J. 262. It is however noted that the latter decision is not under the MRTP & PULP Act and does not deal with the aspect of recurring cause of action. 4. The Industrial Court has observed in para no.7, of the impugned orders as follows :- “ If the complainant would have been in the employment then in that case action would have continued and there would not have been reason for delay or question of considering the delay. The heirs ought to have filed the petition within reasonable time or the delay ought to have been explained by showing good and sufficient reasons 6 for the delay but the applicants are silent and therefore I have no alternate but to say that no case is made out by the heirs for condonation of delay for the cause of action which was available to the deceased .....( sic employee’s name) during his lifetime to taking action against the respondent no. 5. In this particular case and because of the peculiar facts ratio laid down in the judgment referred supra has no application and therefore my findings on the point is in the negative and I have no alternate but to reject the application on peculiar facts of the case. ” 5. It is noticed that in respect of a batch of 52 other employees of the respondents, who were in the employment and who had approached the Industrial Court by filing Complaint ( ULP ) No.25 of 2007 after substantial delay in respect of benefits under the same Settlement /Agreement dated 27-10-1996 of which the petitioners are claiming benefits of the Industrial Court had not only condoned the delay, but also proceeded to hold vide its order dated 27-08-2008 that the terms & conditions of Agreement dated 27-10-1996, were binding upon the respondents and that the said employees were entitled to the benefits and the respondents were accordingly directed to release the benefits. 7 6. Undisputedly, the employee had died during the course of his employment, when the Agreement dated 27-10-1996 was in existence and in force. While in the case of aforesaid 52 employees who were in service the delay was condoned in their Complaint ( ULP ) No.25 of 2007, however in the case of the Complaint of the heirs of the employee in the present cases the delay was not condoned and the applications for condonation of delay was rejected by the impugned order on the ground that the Applicants are silent and have not shown good and sufficient cause. In other words the impugned order does suggest that had the employees been alive, the delay would have been condoned, as was infact condoned in case of other above mentioned employees who were alive and were in service. 8. In the peculiar facts of this case, in my view, in the interest of justice an opportunity ought to be given to the heirs of the deceased employee to explain the delay in filing their Complaints. In the circumstances, I am inclined to remit the matter back to the Industrial Court to enable the petitioners to explain the delay which has occasioned in filing the Complaints by filing necessary affidavits/additional Affidavits. It is accordingly ordered. The petitioners shall appear before the Industrial Court on 20th January at 11.00 a.m. and as such notice for hearing shall stand dispensed with. 8 9. All contentions are kept open including that the cause of action is recurring even in case of heirs of deceased employee and therefore bar of limitation would not apply. Industrial Court shall decide the applications afresh on its own merits and in accordance with law without being influenced by the impugned order. 10. Rule is disposed of in the aforesaid terms with no order as to cost. [A.A.SAYED, J.] dsp/wp4412.09