WP/350/2000 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.350 OF 2000 Hamilton Industries Ltd. ... Petitioner V/s. Mumbai Kamgar Sabha & anr. ... Respondents Mr.Ashish Kamat for Petitioner Ms.Jane Cox a/w Rajesh Mirchandani i/b Paras Kuhad & Asso. for Respondent No.1 Respondent No.2 – formal party CORAM: SMT.NISHITA MHATRE, J. DATE: FEBRUARY 23, 2011 ORAL JUDGMENT: 1. The Petition has arisen because of an order passed by the Industrial Court allowing the application for delay filed by the respondent union and directing that the complaint would be heard on merits. The facts giving rise to the present petition are as follows: Five workmen were chargesheeted for certain incidents which took place on 30.12.1975. They were found guilty in an enquiry conducted against them and were dismissed from service in 1976. An industrial dispute was raised by the respondent Union on behalf of these workmen which was referred for adjudication in Reference (IDA) No.131 of 1979. The Labour Court by its award dated 27.9.1994 set aside the orders of dismissal and directed the petitioner to reinstate the workmen with WP/350/2000 : 2 : continuity of service but without backwages. The Labour Court was of the opinion that the misconduct though proved did not warrant the punishment of dismissal. 2. It appears that the award was published on 2.11.1994. The petitioner did not reinstate the workmen as directed by the Labour Court. The workmen, through their union, called upon the petitioner to reinstate the workmen concerned by their letter dated 6.2.1995. Admittedly, this letter was received by the petitioner. However, the petitioner, it appears, desired certain clarifications from the workmen and imposed certain conditions for reinstating them with continuity of service. Correspondence ensued between the parties which continued till 2.9.1995. The Union filed a complaint under Item 1 of Schedule IV of the MRTU & PULP Act on 29.10.1997. An application for condoning the delay was also filed. It was contended in the application that the petitioner had imposed certain conditions for reinstating the workers which were untenable as the award did not prescribe these terms to be fulfilled by the workmen as a pre-requisite for being reinstated in service with continuity. The application also set out the facts that instead of reinstating the workmen the company i.e. the petitioner herein had continued a protracted correspondence with the union, deliberately. It was also pleaded that there was a continuing cause of action and, therefore there was in fact no delay in filing the complaint. According to the union, it was merely a technical delay which ought to be condoned by the Industrial Court. A reply was filed by the petitioner opposing this application. It was pleaded that the union had not approached the petitioner before filing the complaint. It was contended that none of the reliefs claimed in the complaint were capable of being implemented. It was also pleaded that the complaint had been filed 25 months after the correspondence between the parties WP/350/2000 : 3 : was closed. 3. Evidence of two workmen was led before the Industrial Court on behalf of the union. They deposed on behalf of all the dismissed workmen who were directed to be reinstated by the aforesaid award. They have both deposed to the fact that several letters were addressed to the petitioner by the union and the individual workmen for implementation of the award. In his cross-examination one of the witnesses has admitted that he went to the premises of the petitioner on 29.7.1995 when a gate pass was issued for permitting his entry which in fact was a visitors' pass. He has stated that the petitioner did not at any point of time reinstate him or the other workmen similarly situated in service. The other witness has deposed that the complaint was filed late because the workmen hoped that they would be reinstated sooner than later. 4. Evidence of the Administrative Manager of the petitioner was led on behalf of the petitioner. He has admitted the correspondence which ensued between the parties. 5. The Industrial Court by its decision dated 27.10.1999 has condoned the delay and directed that the complaint would be heard on merits. The Industrial Court has noted that the correspondence indicated that there was no compliance of the award and in such circumstances, it was necessary to condone the delay. 6. Mr.Kamat, appearing for the petitioner, submits that the application for condoning the delay does not make out any cause for condoning the same, much WP/350/2000 : 4 : less a sufficient cause or a good cause. He submits that the only reason mentioned in the application is that the parties had engaged in protracted correspondence. According to him, after September 1995, no further steps had been taken by the union or the workmen to have the award implemented though they had threatened to file a complaint before the Industrial Court. The learned advocate submits that the delay should not be condoned without reason. In this case, he points out that the complainant was not an individual workman who may not have the wherewithal to file a complaint; the complainant was a union and, therefore, there was no reason for not filing a complaint within time. He draws my attention to the fact that the financial stringency was not one of the reasons mentioned in the application for condoning the delay. The learned advocate then submits that the Industrial Court has not given reasons for condoning the delay. It does not mention which reason advanced by the Union for the delay has impressed the Court. Then the learned advocate submits that under section 19(3) of the Industrial Disputes Act the award ceased to be in operation after one year from the date it became enforceable. Reliance is placed on the judgment in the case of Association of Engineering Works vs. Oriental Rubber Industries & Ors., 1994 I CLR 319 and Pune District Central Co-operative Bank Ltd. vs. Hira Lal Ramchandra Gaikwad, 1999 III LLJ (Supp.) 688 to submit that although a lenient view may be taken for condoning the delay the complainant who approaches the Industrial Court belatedly must have some justification for the delay to be condoned. 7. Ms.Cox, appearing for the respondent Union, submits that the complaint had been filed for non-implementation of the award in the Reference. Under that award, the workmen though deprived of the backwages were entitled to reinstatement with WP/350/2000 : 5 : continuity of service. She submits that since they were not reinstated nor paid wages from month to month there was a continuing cause of action which permitted the union to file the complaint in 1997. According to her, when wages are not paid when due there is a continuing cause of action for which a complaint can be filed. She relies on the judgment in the case of Warden and Co. (India) Ltd., Bombay vs. Akhil maharashtra Kamgar Union, Thane, 2001 II CLR 359 of the Division Bench of this Court. Ms.Cox then points out the judgment of the Supreme Court in the case of Collector, Land Acquisition Anantnag & Anr. vs. Mst.Katiji & Ors., 1987 (28) ELT 185 (S.C.) where the Supreme Court has enunciated the principles on which Courts should normally condone the delay. She submits that there is sufficient evidence on record to indicate that the workmen had approached the employer immediately after the award became enforceable on publication. Instead of executing the award by implementing the same, the petitioner had raised several queries and conditions for reinstating the workmen. She points out that none of these conditions were tenable as the Labour Court had not imposed such conditions before reinstatement with continuity of service. According to her, the workmen and the union continued with the correspondence with the employer upto September, 1995. Later they hoped against hope that the employer would see reason and implement the award between 1996 and 1997 and, therefore, they did not approach the Court immediately. She then submits that the workers have not acted malafide and neither has the employer changed its position for it to be prejudiced if the delay, if any, is condoned. She placed reliance on the judgment of this Court in the case of Hiper karmachari Sanghatna vs. Hiper & Ors., 1990 II CLR H.C. BOM. 309. As regards the submission of the learned Counsel in respect of sections 19(3) and 19(6) of the Industrial Disputes Act, Ms.Cox points out that an award continues to be in operation till it is WP/350/2000 : 6 : terminated and for a period of two months thereafter. She submits that in any event as held by the Supreme Court in the case of Life Insurance Corporation of India vs. D.J. Bahadur & Ors., AIR 1980 SC 2181, the benefits of an award continue to flow till the award is set aside or replaced by another award or settlement. 8. In my opinion, the entire case of the petitioner is dishonest. An award was passed on 27.9.1994 for reinstatement with continuity of service. Admittedly the Union and the concerned workers did approach the Petitioner for implementation of the award. Besides engaging in correspondence with the Union, the petitioner invited the workmen for discussions. It appears therefore that the petitioner kept delaying the implementation of the award. There is evidence on record that the workmen tried to reason with the petitioner and indicate to it that it was bound to reinstate them without any preconditions. It was only after all efforts failed that the union preferred the complaint. In Hiper Karmachari Sanghatana (supra), this Court has observed thus: “4. It is well settled that when applications are made by workers for condonation of delay, delay is required to be condoned, unless the workers have acted mala fide or there is such gross negligence as a result of which the employer has changed his position and would be prejudiced. …..” 9. In the present case it cannot be said that the workers or the union had acted malafide in approaching the Court in 1997. There is no evidence to suggest that the petitioner had changed its position and would be prejudiced. Therefore, the Industrial Court has not erred in condoning the delay. 10. Apart from this, since the award was for reinstatement with continuity of WP/350/2000 : 7 : service, on reinstatement the workers were required to be paid wages from month to month. Not having done so, it amounts to a continuing cause of action. The Division Bench in the case of Warden and Co. (India) Ltd., Bombay (supra), has observed in para 43 that when wages are not paid when due, it amounts to the employer engaging in an unfair labour practice under Item 9 of Schedule IV. It is a continuing failure to implement the award. Since this is a continuing cause of action in fact there was no need for an application for condoning the delay. However, in the present case, the Industrial Court has condoned the delay by concluding that the workmen had approached the employer who had denied them the benefits of the award. The employer had entered into unnecessary correspondence and had delayed the implementation of the award. In my view, therefore, there is no need to interfere with the award. 11. In the case of Collector, Land Acquisition Anantnag & Anr. vs. Mst.Katiji & Ors., (supra), the Supreme Court has enunciated the principles for condoning the delay. This Court while deciding the case in Association of Engineering Works vs. Oriental Rubber Industries & Ors., (supra) and Pune District Central Co-operative Bank Ltd. vs. Hira Lal Ramchandra Gaikwad (supra), has observed that the aforesaid judgment of the Supreme Court is not a panacea for condoning the delay for every matter. The facts are required to be adverted to before the delay can be condoned. Based on the facts before them, the learned Judges of this Court refused to condone the delay of 7 years in Association of Engineering Works vs. Oriental Rubber Industries & Ors., (supra) and of four years in the case of Pune District Central Co- operative Bank Ltd. vs. Hira Lal Ramchandra Gaikwad (supra). Apart from this, in neither case was the complaint fled for non implementation of an award for WP/350/2000 : 8 : reinstatement with continuity of service. The yardstick to be applied in such a case while condoning the delay would have to be different as despite an order of the Court, the employer fails to implement it. Technicalities of law should not come in the way of justice. 12. In the present case, as I have already held that this is a continuing cause of action, there is no question of any delay. 13. In these circumstances, the petition is dismissed. Rule discharged. No costs. 14. Mr.Kamath seeks a stay of this order. Stay refused. 15. The complaint shall be disposed of by the Industrial Court within three months from today.