:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8102 OF 2005 Uttam Lalchand Panjwani and anr. ..Petitioners Vs. Oswal Petrochemical and ors. ..Respondents Mr. V.P. Patil for petitioners. Mr. R.V. Paranjpe for respondents. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : February 12, 2008. Date : February 12, 2008. Date : February 12, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Patil the learned counsel for the petitioners. 2. Rule. Mr. Paranjpe waives service for the respondents. 3. As the petition impugns the order dated 15/1/2005 passed by the Industrial Court rejecting the application for condonation of delay, the petition is taken up for final hearing forthwith. :2: 4. The petitioners approached the Industrial Court by filing a complaint of unfair labour practice under Section 28(1) read with Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 (for short the Act). The said complaint was filed sometimes in July 2004. The substantial prayer in the said complaint read as under:- "(a) that the respondents be directed to forthwith start the managerial staff pension fund in accordance with the MOU dated 28/11/1988 and to forthwith pay all the complainants, pension as set out in Exhibit-A hereto with interest at the rate of 18% per annum from the date of their respective Retirment/Resignation from Respondent No.1-Company." . The complainants had also prayed before the Industrial Court to tag their complaint with the pending complaint i.e. Complaint (ULP) No. 134 of 1999. Along with the complaint, an application for :3: condonation of delay registered as Application (ULP) No. 39 of 2004 was filed. 5. In support of the prayer for condonation of delay, it was contended by the complainants that (a) there is a continuous cause of action so far as the pensionary reliefs are concerned, (b) Complaint (ULP) No. 134 of 1999 was pending for the very same reliefs against the company and (c) another set of similarly placed employees had also approached the Industrial Court and filed a similar complaint in which Application (ULP) No. 46 of 2003 was filed for condonation of delay and the same was granted by the Industrial Court. For all these reasons the complainants had prayed for allowing the application for condonation of delay. 6. The Company, on the other hand, submitted before the Industrial Court that the settlement relied upon was signed on 27/11/1988 and the complainants had ceased to be in service since 1//12/1992 and 5//7/1993 respectively. They had collected all their legal dues and full and final settlement without any reservation :4: and hence by way of an after thought a complaint was being filed belatedly i.e. almost after more than 12 years from the date the complainants had ceased to be employees of the Company. The Industrial Court was impressed by the arguments advanced by the Company and it, therefore, held that there was no case made out to condone the delay caused in filing the complaint. The Industrial Court also recorded that Complaint (ULP) No. 134 of 1999 on which reliance was placed by the complainants was not pending. 7. Mr. Paranjpe the learned counsel for the Company fairly conceded that Complaint (ULP) No. 143 of 1999 was disposed off on account of the settlement arrived between the complainants and the company and by the said settlement the company agreed to disburse the pensionary benefits. However, as per Mr. Paranjpe the present set of complainants cannot be compared with the complainants in Complaint (ULP) No. 134 of 1999 in as much as in the present complaint the employees were holding the supervisory/managerial posts and they were not covered under the settlement dated 27/11/1988. :5: 8. Even if it is accepted that Complaint (ULP) No.134 of 1999 is already disposed off in view of the settlement with the Company, the fact remains that in Application (ULP) No. 46 of 2003, the Industrial Court condoned the delay by its order dated 5/2/2004 and consequently Complaint (ULP) No.108 of 2004 is pending before the Industrial Court and the same has been filed by a set of 10 former employees of the company who were also holding the supervisory/managerial posts and are claimed not to be covered by settlement dated 27/11/1988. The petitioners are similarly placed and the relief prayed is the same. It is evident that the present petitioners approached the Industrial Court only after Application (ULP) No.46 of 2003 was allowed by the Industrial Court, but that by itself cannot be a reason to hold that the delay should not be condoned, when similarly placed complainants are before the Industrial Court and for the very same relief, the petitioners approached the Industrial Court belatedly. Rather than going into the technicalities, interest of justice warranted that the delay was required to be :6: condoned, more so when the claim in the Complaint is regarding the pensionary benefits. While considering the application for condonation of delay, the company’s objection on the preliminary ground regarding the status of the complainants should not influence the Industrial Court and that is a matter which requires to be decided in the trial of the main complaint and on the basis of the evidence that may be led before the Industrial Court. It is possible that the complaint may be dismissed, but the complainants cannot be prevented by dismissal of the application for delay condonation. 9. Hence, this petition succeeds and the same is hereby allowed. The impugned order is quashed and set aside. Delay condonation Application (ULP) No.39 of 2004 stands allowed. The Industrial Court is directed to register the complaint and club the same with Complaint (ULP) No. 108 of 2004. It is made clear that this order will not prevent the company from contesting the said complaints on the preliminary points of law as well as on merits. Rule is made absolute accordingly. No costs. :7: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)