IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1716 OF 2008. The Associated Cement Companies Ltd. and Others. ..Petitioners. versus Mohit V. Thakar and Others. ..Respondents. .... Mr. J.P.Cama, Senior Counsel, i/b. M/s. Haresh Mehta and Co., for the Petitioners. Mr. Sachindra B. Shetye a/w Niranjan Morge, for the Respondent No.1. Mrs.P.P.Shinde, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 22nd September 2008. : 22nd September 2008. : 22nd September 2008. P.C.: 1. The submissions of the learned counsel appearing for the parties were heard. The first respondent filed a complaint under the provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ‘the said Act of 1971’). In the said complaint, an application was made for grant of interim relief by invoking section 30(2) of the said Act of 1971. By the Judgment and Order dated 3rd August 2004, the learned Member of the Industrial Court rejected the said application. However, the learned Member directed that : 2 : if the first respondent (original complainant) joins at the place of transfer, the present petitioners will not to make any change in the service conditions of the first respondent. The said order was confirmed by this Court in a writ petition filed by the first respondent. 2. The first respondent filed a complaint under section 48 of the said Act of 1971 alleging violation by the petitioners of the aforesaid direction contained in order dated 3rd August 2004. It was alleged that the petitioner has joined the place of transfer. The allegation is that at the head office where the first respondent was earlier posted, the duty hours were 9.15 a.m. to 5.00 p.m with a lunch break of half an hour. It is alleged that at the head office the working week was of five days. At the place where he is transferred, i.e. at Kalamboli, the first respondent was supposed to do work from 9.00 a.m. to 5.30 p.m. and only Sunday is the weekly holiday. It is alleged that at the head office, the first respondent is entitled to 16 public holidays, whereas at Kalamboli he is entitled to 10 public holidays. Summons was issued by the learned Judge of the Labour Court on the said complaint. A : 3 : revision application was filed by the petitioner for challenging the said order. The said revision application was disposed of by Sessions Court by a Judgment and Order dated 4th April 2007 by passing the following order :- "1. The Ld.Trial Court is requested to dispense with attendance of petitioners No.2 to 4 permanently and permit them to appear through their representative. 2. Accordingly, Revision stands disposed of. 3. R & P be sent to the Lower Court." 3. The first respondent herein challenged the said order by filing a criminal writ petition no.870/2008 in this Court. The present petitioners were heard in the said petition and in fact they were represented by the same attorney who is representing them in this petition. The said petition of the first respondent was disposed of on 25th July 2008 by passing the following order :- : 4 : "i) The impugned order dated 4th April 2007 is modified to the extent that Respondent Nos.2 to 6 are hereby directed to appear before the Trial Court within a period of six weeks from today. The said respondents shall furnish usual personal bonds to the satisfaction of the trial court. ii) The Respondent Nos.2 to 6 will give notice to the Advocate appearing for the petitioners of the date on which they propose to appear before the trial court." 4. A special leave petition was preferred by the petitioners for challenging the order of this Court. The special leave petition was disposed of as infructuous as the order of this Court was acted upon. All pending matters were directed to disposed of in accordance with the law by the Apex Court. 5. The submission of the learned senior counsel for the petitioner is that the learned Judge of the Labour Court has not applied his mind before issuing process : 5 : against all the petitioners. Inviting my attention to the complaint under section 48 filed by the first respondent, he submitted that prayer was made for issuing process only against the first and the second petitioners, but the learned Judge of the Labour Court issued process against all the petitioners. He submitted that firstly, there is no change in service conditions of the first respondent and in any case, there are no specific allegation made by the first respondent as regards role played by the second to the sixth petitioners in the alleged breach of the order dated 3rd August 2004. He submitted that the learned Magistrate was expected to apply his mind before issuing process and the on the basis vague allegations made in complaint, process could not have been issued. 6. The learned counsel for the first respondent submitted that apart from the fact that the present petition has been belatedly filed, he pointed out that the same impugned order was challenged by the first respondent by filing a writ petition in this Court and after hearing the counsel for the petitioners, by order dated 25th July 2008, the operative part of the impugned : 6 : order has been already modified by this Court. He submitted that when the petition filed by the first respondent against the impugned order was heard by this Court, the petitioners did not disclose before this Court that they were intending to file a petition for challenging the same impugned order.He submitted that, now at this stage, it will not be open for the petitioners to challenge the impugned order. He submitted that in the circumstances, the petition cannot be entertained. He submitted that there is no explanation whatsoever for the long delay in approaching this Court. 7. The learned senior counsel for the petitioner relied upon the affidavit dated 11th September 2008 filed by one Jaywant Sitaram Patil for explaining the delay. He submitted that delay will not come in the way of this Court while entertaining the present petition. 8. I have carefully considered the submissions. The order of issuing process passed by the leaned Judge of the Labour Court was challenged by the petitioners by filing a revision application before the Industrial : 7 : Court. The said revision application was disposed of by passing the impugned order dated 4th April 2007 the operative part of which is quoted above. By filing a writ petition in this Court, the first respondent challenged the operative part of the order dated 4th April 2007. The said writ petition was finally heard by this Court on 25th July 2008. After hearing the counsel for the present petitioners, this Court modified the operative part of the order. It is pertinent to note that at that stage, the petitioners did not disclose that they were desirous of challenging the order dated 4th April 2007 as well as the order of issue of process by filing appropriate proceeding in this Court. The only explanation for not doing so as set out in the affidavit dated 11th September 2008 filed by Shri Jaywant Patil is as under :- "3. I further say that as set out in the main Petition herein, the delay caused in approaching this Hon’ble Court was due to our wrong understanding that the permanent exemption granted to us by the impugned order of the Learned Industrial Court was for all purposes : 8 : sufficient. It was only after the Respondents challenged the same, it resulted in the above order of this Hon’ble Court dated 25.07.2008 that we took legal advice and realized that it was necessary to actually challenge the issue of process itself. Thus, the said delay in approaching the Hon’ble Court is based upon a bonafide misconception of the law which is regretted." 9. The petitioners were represented before this Court in the said petition filed by the first respondent. Therefore, it is very difficult to accept the contention that there was a wrong understanding on the part of the petitioners that the permanent exemption granted by the impugned order was for all purposes sufficient and that only after taking legal advice, the petitioners realized that it was necessary to challenge the order issuing process. The order issuing process was confirmed by order dated 4th April 2007. This petition has been filed on 21st August 2008. This petition has been filed three weeks after this Court disposed of the criminal writ petition no.870 of 2008 : 9 : filed by the first respondent. It is well-settled that the power of this Court under section 482 of the Code of 1973 is to be exercised sparingly and that also in very rare cases. Considering the aforesaid conduct of the petitioners, this is not a case where power under section 482 of the said Code of 1973 can be invoked or extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India can be exercised. 10. It must be noted here that the second to sixth petitioners were parties to the complaint filed by the first respondent in which order dated 3rd August 2004 was passed. In paragraph no.5 of the complaint under section 48 of the said Act of 1971 filed by the first respondent, the nature of breach allegedly committed by the petitioners was set out though in the prayers, action was sought only against the first and the second petitioners. There are specific averments made in the complaint in paragraph no.1 thereof that the second to sixth petitioners are overall incharge of the management of the first petitioner, they were parties to the proceeding of the complaint and that they have breached the order passed by the Industrial Court. The second to : 10 : sixth petitioners have been made parties to the complaint under section 48 of the said Act of 1971. 11. In view of the averments made in paragraph nos.1 and 5 of the complaint and considering the fact that the second to sixth petitioners were parties to the complaint in which order dated 3rd August 2004 was passed, no fault can be found with the learned Judge of the Labour Court if he came to the conclusion that a case for issuing process against all the petitioners was made out. No case for interference is made out. The writ petition is accordingly rejected. 12. It is however, clarified that all contentions raised by the petitioners are kept open for the purposes of hearing of the complaint. (A.S.Oka, J)