(1) WP. 2257.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2257 OF 2010 Tilak S/o Ganpatrao Takle, Age : 50 years, Occu. Service, R/o Udgir, Tal. Udgir, District - Latur .. Petitioner (Orig. Applicant) VERSUS 1] The Commissioner, Dairy Development, Maharashtra State, Varali, Mumbai - 18. 2] The Regional Dairy Development Officer, Aurangabad Division, Aurangabad 3] The General Manager, Government Milk Scheme, Udgir, Tal. Udgir, Dist. Latur (Copy to be served on AGP. High Court of Judicature of Bombay Bench at Aurangabad) .. Respondents Mr. S.S. Thombre, Advocate for the Petitioner Mr. N.H. Borade, AGP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 14TH JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith and heard finally. (2) WP. 2257.2010 2] The petitioner challenges the order dated 19.8.2008 passed on his Application Misc. (ULP) no.9 of 2008 whereby the delay condonation application came to be rejected. 3] The petitioner is working as Dairy Attendant on establishment of the respondents. His contention before the Industrial Court was that since 1984, he was employed by the respondents. His main grievance was that he was not given proper seniority position while preparing seniority list and therefore, he was being deprived of promotion and other benefits. The learned Member of the Industrial Court rejected delay condonation application of the petitioner mainly on the ground that there was delay of 16 years in filing of the complaint and that the petitioner has retired from the service. 4] Heard learned counsel and learned AGP. 5] It emerges from the record that the respondent resisted the delay condonation application on the ground that the petitioner had retired from employment with effect from 31.1.2005. The petitioner's counsel make a statement that the petitioner is still in service and is very much present in the Court premise. Learned AGP states that there is apparent mistake in the reply before the Industrial Court recording retirement of the (3) WP. 2257.2010 petitioner on 31.1.2005. The Industrial Court was required to consider whether the petitioner explained the delay of 16 years. It is important to notice that the denial of proper seniority position is continuous cause of action and therefore, the complaint application was required to be considered after proper appreciation of the grounds stated in the application for condonation of delay. The Industrial Court was required to examine whether prima facie case was made out by the petitioner to demonstrate that he was subjected to unfair labour practices on account of seniority position. 6] In this view of the matter, and particularly when it is clear that the petitioner is still in service, the impugned order is required to be set aside. In the result, the Petition is partly allowed. The impugned order is set aside. The Industrial Court is directed to re-consider the delay condonation application on it’s own merits and decide the same afresh within a period of 4 months. Writ Petition is disposed of. Rule made absolute in the above terms. Sd/- [V.R. KINGAONKAR, J.] arp