: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2256 OF 2008 M/s.Sterling Roadlines Pvt.Ltd. & Anr. ....Petitioners V/s. Kiran M. Yeralkar & Ors. ....Respondents Mr.Rajendra V. Pai with Mr.S.M. Kamble for the Petitioners. Mr.Rahul Nerlekar for Respondent Nos.1 and 2. CORAM : S.J. VAZIFDAR, J. DATED : 21ST JANUARY, 2009. P.C. : 1. The impugned order warrants no interference. The Petitioners have challenged the order dated 20.9.2004 passed by the Labour Court in Application (IDA) No.550 of 1995 under Section 33(C)(2). The Application was limited to a claim on account of the annual increment of Rs.50/- for the period 1990 to 1993. The learned Judge has come to the conclusion that there was a practice granting such increment. 2. It is not necessary to consider whether such a contention could have been raised in the above proceedings in view of an order and judgment of this Court dated 24.3.2003 in Writ Petition No.619 of 2000 between these parties. Respondent Nos.1 and 2 had filed the said Writ Petition against an order of the : 2 : Labour Court dated 16.12.1999 keeping the Petitioners claims open for a decision on merits. This order was in the present application under Section 33(C)(2). By the said order and judgment dated 24.3.2003, the order dated 16.12.1999 was set-aside and the matter was remanded to the Labour Court. The Labour Court was directed to permit the parties to amend the pleadings if required and to lead evidence afresh as to whether there was any custom, usage or practice of paying yearly increments at Rs.50/- as also whether the bonus is payable for the years as claimed. 3. The impugned order was passed upon rehearing the matter, after it was remanded. 4. The present matter is essentially on questions of fact. The Petitioners did not lead any further evidence but relied upon the earlier evidence. What weighed with the learned Judge in particular is that in an earlier complaint being Complaint (ULP) No.1005 of 1995, the issue was decided albeit ex-parte in favour of the Respondents. Based on the said decision, an application was made under Section 50 being Misc.Application (ULP) No.28 of 1991, claiming benefits arising as a consequence of the award. It was contended that the matter was not decided on merits. This in fact is the observation of this Court : 3 : in the said judgment dated 24.3.2003. The Petitioners in fact raised the contentions in the Complaint under Section 50 and it was accordingly decided. It was established in those proceedings that there was a practice of granting annual increments and that the Respondents were entitle to an annual increment of Rs.50/-. 5. It is true that this finding was in respect of the proceedings adopted for the years 1987 to 1990. However, the finding was not limited to the said years but was one of the basis of the relationship between the parties. In other words although the relief granted was for the years 1987 to 1990, it was not based on a practice limited to those years. 6. It is also pertinent to note that the Petitioner had filed Writ Petition No.927 of 1993 challenging the decision of the Industrial Court in Misc.Application (ULP) No.28 of 1919. That application was dismissed by an order of this Court dated 21.6.1993. 7. Moreover even assuming that the finding was not binding in the present proceedings, the learned Judge cannot be faulted for having allowed the same to weigh with him while considering the evidence. : 4 : . The learned Judge also recorded that he examined the evidence in the matter as well as in the previous matter and was satisfied that the custom had been established. I am not inclined to interfere with these findings. 8. It also ought to be noted that there is a delay of five years in filing the Writ Petition. An explanation is sought to be given regarding the same. However, from the previous record, it appears that the Respondents have been made to incur considerable expenses in filing proceedings for the purpose of executing the orders passed in their favour. 9. It was then contended that the learned Judge failed to consider the submissions raised on the agreement between the parties. It was contended that the agreement prevail over the alleged custom. The portion of the agreement relied upon reads thus :- "The quantum and timings of future, increments or promotions or advancement shall be based among other things, on merits, performance and exigencies of the business and shall be at the absolute discretion of the management." . The clause is not necessarily contrary to the practice established. It merely states that the increments would be based on the factors mentioned : 5 : therein which were not exhaustive but only "among other things". Thus even assuming this point was argued in the facts and circumstances of the present case, I see no reason to interfere with the impugned order. 10. At the request of the Petitioners, the impugned order and the non-bailable warrant shall not be executed upto and including of 24.2.2009. The stay is in view of the statement on behalf of the Petitioners that service upon the present advocate of the Petitioner shall be sufficient for the purpose of serving any notices or proceedings. Further the Petitioners will not dispose of, alienate, encumber, part with possession of or create any third party right,title and/or interest in respect of the office premises at Khadak, Dongri, without the leave of the Court.