1 WP-4742-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj WRIT PETITION NO.4742 OF 2010 National Aviators Guild .. Petitioner V/s. The Registrar of Trade Unions & Others .. Respondents. Mr. K.K.Singhavi, Sr.Counsel i/b. Bennet D'Costa, for the Petitioner. Mr. V.A.Sonpal, AGP for Respondent Nos.1, 2 and 4. Mr. Janak Dwarkadas, Sr.Counsel a/w. Mr.Abhay Kulkarni, Mohal Salian, G.T.Mestha and Ms. I. Sen i/b. Gagrats, for the Intervener in C.A.W. No. 2468 of 2010. CORAM:- B.H.MARLAPALLE AND U.D.SALVI, JJ. DATED:- 28th SEPTEMBER, 2010. P.C. 1 Heard Mr. Singhvi, the learned Senior Counsel for the Petitioner. 2 Rule. 3 Leave to delete Respondent No.3. 4 Amendment to be carried out forthwith. 5 The learned AGP appears for Respondent Nos.1,2 and 4 and waives service. 2 WP-4742-10.sxw 6 We also heard Mr. Dwarkadas, the learned Senior Counsel for Jet Airways Ltd., and the said Company has filed C.A.No. 2468 of 2010, for intervention. 7 The petition is finally heard. 8 The Petitioner came to be registered as a Trade Union under Registration No.17/10437 on 24th July, 2009 under the Trade Unions Act 1926 (“the Act” for short). It appears that on 11th November, 2009, the Respondent No.1 passed an order under Section 10 of the said Act and cancelled the registration of the Petitioner's Union and the said order came to be challenged before this Court in Writ Petition No.309 of 2010. The said Petition was rejected on 18th February, 2010 by a detailed order and it was noted that the Petitioner has alternate remedy under section 11 against the order passed under Section 10 of the said Act. The Petitioner was granted liberty to approach the Industrial Tribunal. Para 9 of the said order reads as under:- " Taking overall view in the matter, in our opinion, it will not be appropriate to entertain this Petition because there is an alternate remedy available to the petitioner. Petition is rejected. However, it is made clear that the observations made above by us are only for the purpose of rejection of the 3 WP-4742-10.sxw Petition and whatever we have said above, will not come in the way of the petitioners adopting alternate remedy which may be available to them in law. Petition is rejected." 9 It appears that the Petitioner subsequently approached the Industrial Tribunal at Bombay and filed an appeal under Section 11 of the Trade Union Act along with an application for condonation of delay and this application was registered as Condonation of Delay Application (ICTU) No.1 of 2010. The learned member of the Industrial Tribunal at Bombay by the impugned order dated 29th May, 2010 rejected the application for condonation of delay holding that:- (a) appeal was not filed within 90 days ; (b) it was filed within 64 days from the order passed by this court on 18th February, 2010; (c) Section 5 of the Limitation Act, 1963 was not applicable to condone the delay of 90 days and (d) under Rule 11 of the Bombay Rules framed under the Act, the period prescribed to file appeal was 90 days and when the appeal was filed beyond the period of 90 days, the Industrial Tribunal did not have the power to condone the delay as the appeal was under a Special Act . 4 WP-4742-10.sxw 9 The Industrial Tribunal has referred to the judgment in the case of Chhattisgarh State Electricity Board v/s. Central Electricity Regulatory Commission and others (2010) 5 SCC-23, (2) Hukumdev Narain Yadav v/s. Lalit N. Mishra (1974) 2 SCC-133 and (3) Singh Enterprises v/s. Commissioner of Central Excise, Jamshedpur - (2008)3 SCC-70. 10 Mr. Singhvi, the learned Senior Counsel referred to Rule 9 of the Bombay Rules and submitted that the said Rules are not applicable to the Petitioner as it is an all India body and hence the Industrial Court fell in gross error to hold that Rule 9 of the said Rules was applicable to the Petitioner. It was further contended that the Industrial Court was in error to hold that Section 5 of the Limitations Act was not applicable to an Appeal filed under the Act, by relying upon the scheme of Section 29(2) of the said Act read with Section 11 of the Act. It was, therefore, contended that Section 5 of the Limitations Act is applicable to the appeal filed by the Petitioner and, therefore, the delay purportedly caused beyond 90 days was required to be condoned. It was urged that none of the decision referred in the impugned orders are applicable to the present case. 11 In our opinion, the approach of the Industrial Court in 5 WP-4742-10.sxw rejecting the application for condonation of delay is grossly erroneous. When the Petitioner approached this Court in Writ Petition No.309 of 2010, the Petition came to be rejected solely on the ground that the Petitioner has an alternate statutory remedy of appeal under Section 11 of the Act and this order was passed on 18th February, 2010. The Industrial Court has noted in the impugned order that the appeal was filed within 64 days from 18th February, 2010 and even if it is presumed that Regulation 9 of the Bombay Rules was applicable in the instant case, the appeal was filed within 90 days. When this Court has rejected the Petition solely on the ground that a statutory remedy of appeal was available and such liberty was granted to the Petitioner, in all fairness, the Limitation period ought to have been counted by the Industrial Court from 18th February, 2010 unless this Court had directed to file the appeal within a specific period. Solely on this ground, the Petitioner must succeed before us and we need not examine other grounds of challenge raised by Mr. Singhvi. 12 Mr. Dwarkadas, the learned Senior Counsel appearing for the intervener has invited our attention to the memorandum of agreement purportedly signed on 12th September, 2009 between the Petitioner Union and the Company and more particularly the last paragraph of the 6 WP-4742-10.sxw said memorandum. It was submitted by Mr. Dwarkadas that at the behest of the Union, the intervener company has established a mechanism of providing for the conciliation process. As a result of the conciliation process, four pilot members have been reinstated pursuant to the agreement arrived between the parties. The Petitioner union could not be allowed to proceed for challenging the order passed on 11th November, 2009 and to insist on getting it registered. We are not impressed by these arguments. The Petitioner is entitled to raise the challenge to the cancellation of its registration and the memorandum of agreement referred by Mr. Dwarkadas does not come in its way in exercising the said right. 13 We, therefore, allow this Petition and quash and set aside the impugned order passed by the Industrial Court at Bombay and Delay Application No.1 of 2010 stands allowed and the appeal shall be registered and proceeded further as per law. It shall be decided expeditiously. (U.D.SALVI,J.) (B.H.MARLAPALLE, J.)