Bombay High Court
Maharashtra State Cotton Marketing ... vs Satish Narayanrao Gawande on 24 June, 2021
Equivalent citations: AIRONLINE 2021 BOM 1742
Bench: S.B. Shukre, Avinash G. Gharote
Civil WP 6694 of 2018.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL WRIT PETITION NO.6694/2018
PETITIONER : Maharashtra State Cotton Marketing
Employees Co-Operative Spinning Mill
Limited, Akola, Through its Manager,
Having office at :- Vidya Nagar, Akola,
Tahsil and District Akola.
...VERSUS....
RESPONDENT : Satish Narayanrao Gawande,
aged about 45 years, Occ : Service,
R/o Satefal, Tq. Chandur Rly.,
Dist. Amravati, At present,
R/o Karanja Lad, Dist. Washim.
- - - - - - ------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. Anand R. Deshpande, Advocate for petitioner
Mr. Shekhar S. Dhengale, Advocate for respondent
Mr. Harish Thakur, Advocate has also addressed the Court
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Order reserved on : 06/05/2021
Order pronounced on : 24/06/2021
O R D E R :(PER : AVINASH G. GHAROTE, J.)
1. A learned Single Judge of this Court in Maharashtra State Cotton Marketing Employees Co-operative Spinning Mill ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 2 Limited, Akola Vs. Satish Narayanrao Gawande, 2019 (6) Bom.C.R. 15, while considering an issue as to whether the Court had the power to condone the delay if an application under Section 31 (2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "the Act of 1971" hereinafter) was made after a period of thirty days from the date of such ex parte order, but within thirty days of receiving the copy of such ex parte order, and noticing the conflict of views as indicated in para 15 thereof (para 17 of 2019 SCC OnLine Bom 247) which is as under :-
"17. It can thus be seen that on one hand, it has been held by the Division Bench in Letters Patent Appeal No. 3 of 2004 [supra] that there is no power with the Court concerned to condone the delay on the lines of such power as provided under Section 28(1) of the said Act which decision has been subsequently followed in Dilip Vithalrao Jogdand and Baban Raosaheb Dongre (supra). There is yet another line of cases taking the view that such delay is liable to be condoned. In Shrirang Pandurang Tadas and Sopan Ramkrishna Nirmal (supra) applications filed under Section 31(2) of the said Act after a period of thirty days have been entertained and allowed. Though the decision in Shrirang Pandurang Tadas [supra] has been held to be per incuriam by learned Single Judge in Baban Raosaheb Dongre (supra), that very decision has been followed by ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 3 another learned Single Judge in Sayaji & Others (supra) for restoring the complaint that was dismissed by the Industrial Court. The conflict in views is thus apparent.
was of the opinion :-
In my view, the question whether the Industrial Court has the power to entertain an application under Section 31(2) of the said Act if made beyond the period of thirty days from the date of the order but within thirty days of receiving copy of the ex parte order is of general importance and arises frequently for consideration. Prima- facie, on a plain reading of Section 31(2) of the said Act it is seen that what is required is making of an application to the Court for setting aside the ex parte order made under Section 31(1) of the said Act within thirty days of receiving a copy thereof. There does not prima-facie appear any bar or prohibition to entertain such application if made after period of thirty days of receipt of the copy of the order."
and in view of the conflict noticed, framed the following question :-
Question :
"Whether the Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 has the power to set aside an ex parte order made under Section 31 (1) of the said Act, if an application to set aside such order as contemplated by the provisions of Section 31 (2) of the ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 4 said Act is made after a period of thirty days from the date of that ex parte order despite such application having been made within a period of thirty days of receiving a copy of that order ?"
which has been referred to this Division Bench by the Hon'ble the Chief Justice for an answer, which hereinafter is referred to as question No.1.
2. On 24/3/2021, considering the prima facie opinion as expressed in the referral order, dated 1/10/2019 that there did not appear any bar or prohibition to entertain an application for restoration, if made after a period of 30 days of receipt of the copy of the order, we felt that the original question framed, as it did not address this view, an additional question was required to be framed, which naturally and consequentially followed the question framed and referred. We therefore framed the following additional question :-
Question :
"Whether an application received after 30 days of the receipt of copy of the order could be dealt with in accordance with the provisions contained in Section 29 (2) of the Limitation Act, so that in ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 5 appropriate cases, the delay could be condoned under Section 5 of the Limitation Act, 1963 ?"
which hereinafter is referred to as "question no.2".
3. Section 31 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, reads as under :-
"31. Consequences of non-appearance of parties.
(1) Where in any proceeding before the Court, if either party, inspite of notice of hearing having been duly served on it, does not appear, when the matter is called on for hearing the Court may either adjourn the hearing of the matter to a subsequent day, or proceed ex parte, and make such order as it thinks fit.
(2) Where any order is made ex parte under sub-section (1), the aggrieved party may, within thirty days of the receipt of the copy thereof, make an application to the Court to set aside such order. If the Court is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it may set aside the order so made, and shall appoint a date for proceeding with the matter:
Provided that, no order shall be set aside on any such application as aforesaid, unless notice thereof has been served on the opposite party."::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 6 The relevant regulations under the Industrial Court Regulations, 1975, as applicable to the State of Maharashtra, namely, Regulations 118 and 119 read as under :-
"CHAPTER -VII Ex-Parte Proceedings
118. (i) Alongwith application under section 31 (2) of the Act the applicant shall file affidavit in support of the grounds for getting the ex-parte order set aside.
(ii) A notice of hearing of the application for setting aside the ex-parte order shall be served on the party who is entitled to be heard. Such notice shall be in Form 22.
119. The Court may under section 31 (2) of the Act set aside ex-parte order on such terms as to costs and other conditions as it considers necessary."
4. Before we proceed ahead, it would be material to note, that in exercise of the powers conferred under Section 33 of the Act of 1971, the State of Maharashtra, has made amendments, to the Industrial Court Regulations, 1975, to come into force from the date of its publication in the Maharashtra Government Gazette, which was so published in Part I-L October 17-23, 2019, thereby inserting Regulation 119-A, 148 to 150 (relevant for our purpose) as under :- ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 7 "119-A. On an application filed under Section 31 (2) of the MRTU and PULP Act 1971 seeking to have an ex-parte order or a "dismissed in default" order, set aside, after 30 days from the date of the passing of such ex-parte or "Dismissed in Default" order, the court may, upon issuing notice to the other side in Form No.22, entertain such an application provided a separate application for seeking condonation of delay is filed supported by an affidavit and only if a just and sufficient cause is made out by the applicant. Sections 5 to 12 of the Limitation Act, 1963 shall apply to such applications.
148. The Indian Evidence Act shall apply to all cases to be tried under the provisions of the MRTU and PULP Act, 1971, in which proceedings the recording of oral and documentary evidence is ordinarily contemplated, save and except the original record and proceedings of the domestic enquiry maintained in the file of the Enquiry Officer, preserved by the employer and which is produced in the Court.
149. Wherever the provisions under the MRTU and PULP Act, 1971 and the Industrial Court Regulations, 1975 are silent, the provisions of the Code of Civil Procedure under Sections 27 to 32 read with Order XI, XII, XIII, XIV, XVI, XVI-
A, XVIII and XIX, shall be applicable to the proceedings under the MRTU and PULP Act, 1971.
150. Any clerical or arithmetical mistake or error or accidental slip arising therefrom, in the judgment or order, may be corrected by the court either of it's own motion or on an application by any of the parties, akin to Section 152 of the Code of Civil Procedure, 1908."
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Civil WP 6694 of 2018.odt 8 It would thus be apparent that consequent to the introduction of Regulation 119-A, the provisions of Sections 5 to 12 of the Limitation Act, 1963 have been made applicable, as a result of which, subsequent thereto, the Labour Court in the matter of entertaining an application under Section 31 (2) of the Act of 1971 would be entitled to also entertain an application seeking to condone the delay in filing the application for restoration. The position, however, in the instant reference pertains to prior to the introduction of the above amendment and has to be considered accordingly.
5. Mr. Anand Deshpande, learned Counsel for the petitioner, in so far as question no.1, is concerned submits that the language of Section 31(2) of the Act of 1971, is clear and specific, in as much as, it empowers the Court to set aside the ex parte order made under Section 31(1), if an application to that effect is made within 30 days of the receipt of copy of ex parte order and therefore the question will have to be answered in the affirmative.
6. In respect of question no.2, Mr. Anand Deshpande, learned Counsel for the petitioner submits that the Act of 1971 is a ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 9 special law, a perusal of the provisions of which demonstrates that they do not exclude the applicability of Section 5 of the Limitation Act, 1963, and therefore the same could always be invoked. He relies upon Superintending Engineer, Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another Vs. Excise and Taxation Officer, Sunder Nagar, Assessing Authority, 2019 SCC OnLine SC 1400 which considers the earlier judgments on the applicability of the provisions of the Limitation Act. The scheme of the Act of 1971, and particularly Section 31 according to him, is not ousting the applicability of Section 5 of the Limitation Act. By referring to Section 28 of the Act of 1971, which deals with the complaint to be filed within 90 days, he submits that the power to condone the delay has also been conferred. Similarly referring to Section 42 of the Act of 1971, which provides appeal to be preferred before the Industrial Court against the order of Labour Court within 30 days, he submits that there is a provision for condonation of delay. He thus submits that the intent of legislature is clear from the scheme of the Act of 1971, that it did not want to exclude or to oust the applicability of the provisions of the Limitation Act. He submits that so far as Section 31 of the Act of 1971 is concerned, applicability of provisions of the Limitation Act to it, is not excluded ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 10 or ousted. He further places reliance upon Section 29 of the Limitation Act, to contend that the provisions of Section 5 thereof, would apply to the Act of 1971, as there is no exclusion therein to its applicability by relying on Superintending Engineer, Dehar Power House (supra) and Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5.
He further relies upon the following judgments :
(i) Shrirang Pandurang Tadas and others Vs. Bajaj Auto Limited (Writ Petition No. 7756 of 2009).
(ii) Popat Anaji Rautray Vs. Zilla Parishad,
Ahmednagar (2015 M.C.R. 425).
(iii) Bajaj Auto Ltd Vs. Sayaji Mahadu Gavhane (Writ
Petition No. 704 of 2014 ).
(iv) Grindlays Bank Ltd. Vs. The Central Government
Industrial Tribunal and others, AIR 1981 SC 606.
(v) Mahabir Prosad Choudhary Vs. M/s. Octavius Tea and Industries (Civil Appeal No. 8320 of 2011).
on the question no.2, he also places reliance upon : ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 11
(vi) Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and others, (2008) 7 SCC 169.
(vii) Kapil and others Vs. Union of India and others, AIR 2018 Madhya Pradesh 7.
(viii) Mangu Ram Vs. Municipal Corporation of Delhi, (1976) 1 SCC 392.
(ix) Government of Maharashtra (Water Resources Department) Vs. M/s Borse Brothers Engineers and Contractors Pvt. Ltd. (Civil Appeal No, 995/2021, decided on 19/3/2021 )
7. Mr. Shekhar Dhengale, learned Counsel for the respondent submits that the answer to question no.1, is covered by the language of Section 31(2) of the Act of 1971, which permits the filing and consideration of an application for setting aside the ex parte order, within 30 days of the receipt of the copy of the order and not 30 days of the order. He further submits that the judgments upon which reliance has been placed by Mr. Anand Deshpande, learned Counsel for the petitioner, are not applicable and the question is covered by its language.
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Civil WP 6694 of 2018.odt 12
8. In so far as question no.2, is concerned Mr. Shekhar Dhengale, learned counsel for the respondent, submits that applicability of the provisions of the Limitation Act, do not appear to have been excluded by the language of Section 31(2) of the Act of 1971, and therefore they will have to be held applicable.
Mr. Shekhar Dhengale, learned Counsel for the respondent also places reliance upon the following judgments :
(1) Baban Raosaheb Dongre Vs. Pravara Medical Trust, 2014 M.C.R. 981.
(2) Maharashtra State Cotton Marketing Employees Co-operative Spinning Mill Limited, Akola Vs. Satish Narayanrao Gawande, 2019 (6) Bom. C.R. 15. (3) Sayaji Mahadu Gavhane (supra) also relied upon by the petitioner.
(4) Popat Anaji Rautray vs Zilla Parishad, Ahmednagar (2015 M.C.R.425).
(5) Mahabir Choudhary and Grindlays Bank (supra) also relied upon by Mr. Deshpande learned Counsel for the petitioner.
On question no.2, learned Counsel for the respondent, has also relied upon the judgments in Mukri Gopalan; Consolidated Engineering Enterprises and Kapil (supra) which are also relied upon by Mr. Anand Deshpande, learned Counsel for the petitioner. ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 13
9. Mr. Harish Thakur, learned Counsel agrees that the expression "within a period of thirty days of the receipt of the copy thereof" as occurring in Section 31(2) of the Act of 1971, means that the limitation prescribed does not start to run from the date of the order. He submits that the Act of 1971 is a Special Act dealing with various forms of unfair labour practices. He contends that adjudicatory Forums such as the Labour Court and Industrial Court are constituted for redressal of grievances relating to commission of unfair labour practices by the employer as well as the employees/union. Section 46 of the Act of 1971 gives finality to the orders passed by the Labour Court and the Industrial Court. Section 31(1) empowers the Court to pass ex parte order, if one of the parties has not appeared. This ex parte order brings about finality to the litigation process, unless the aggrieved party approaches the Court within the limitation period to set aside the ex parte order. He contends that if the provisions of Section 31(2) are literally interpreted and a party is permitted to approach the Court with an application for setting aside the ex parte order after several years but within thirty days of the obtaining copy of the said order, then there will be no finality to the adjudication process. This will bear harshly ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 14 on the other litigating party. Learned Counsel, for this proposition, places reliance upon Popat Rautray (supra).
9.1. Mr. Harish Thakur, learned Counsel submits that an aggrieved party cannot be allowed to take disadvantage of the lenient wordings of Section 31(2) of the Act of 1971 and abuse the process of the Court by sleeping over the matter and after several years apply for a certified copy and file the application for setting aside the ex parte order within thirty days of receipt of the certified copy. 9.2. Mr. Harish Thakur, learned Counsel submits that the provisions of Section 31(2) of the Act of 1971 will have to go through a purposive interpretation so that the object of rendering finality of the litigation process is furthered. In order to avail the remedy under Section 31(2), the aggrieved party should be put to strict pleadings. The aggrieved party should specifically plead the exact date when he got knowledge of the ex parte order, as the limitation period would commence only from the date of knowledge of the ex parte order for which he relies upon Madan and another Vs. State of Maharashtra (2014) 2 SCC 720, para 9 and Bhagmal and others Vs. Kunwar Lal and others, (2010) 12 SCC 159, para 16.
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Civil WP 6694 of 2018.odt 15 9.3. Mr. Harish Thakur, learned Counsel further submits that in any application under Section 31(2) of the Act of 1971, the party should plead whether he received copy of the order from the other side; if the aggrieved party has applied for a certified copy, then the date on which it was applied and when the certified copy was ready for delivery should be mentioned; if the copy of the ex parte order is accessed from the Court website, then the details of the same should be pleaded; sufficient reasons for explaining the delay caused in filing the application, if it is filed after thirty days of the passing of the order should be given which will enable the Court to examine whether the applicant had constructive knowledge of the order at an earlier point of time than what is claimed and whether the applicant was negligent in approaching the court.
9.4. Mr. Harish Thakur, learned Counsel, submits that Section 31(2) of the Act of 1971 should be interpreted in a way so as to provide discretion to the Court to entertain an application for setting aside the ex parte order even after a period of thirty days of the passing of the order so long as the aggrieved party makes out a bona fide case that he was diligent in approaching the Court and is able to satisfactorily explain the circumstances why the party could ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 16 not approach the Court earlier. At the same time he submits that the Court should have the discretion not to entertain an application under Section 31(2) of the Act of 1971 where the applicant approaches the Court after several months/years of the passing of the order, even if it is filed within thirty days of the receipt of the copy thereof, if the application is found to be an abuse of the process of the Court and fails to plead the exact time when the party got knowledge of the order and further fails to make out a satisfactory case for explaining the delay caused in approaching the Court.
9.5. Mr. Harish Thakur, learned Counsel, relies upon the following cases in which the discretion of the Courts under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 to dismiss an application for restoration under Section 31(2), where the aggrieved party had approached the Court at a belated stage well beyond the date of passing of the ex parte order, has been upheld : -
(i) Chief Officer, Karmala Nagar Parishad Vs. Dnyandeo Tukaram Londhe (LPA No.314/2007 with connected matters) decided on 12/3/2009 ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 17
(ii) Dilip Vithalrao Jogdand Vs. Vaidyanath Urban Co-op. Bank Ltd., 2007 II CLR 293.
(iii) Baban Raosaheb Dongre Vs. Pravara Medical Trust Judgment dated 18/3/2014 passed by learned Single Judge in WP No.122/2013.
(iv) Anand Shivram Samant Vs. Kansai Nerolac Paints Ltd. & Ors., 2016 (1) CLR 88.
9.6. Inviting our attention to the case of Sayaji Mahadu Gavhane (supra), he submits that the learned Single Judge has referred to the earlier decisions of the Hon'ble Bombay High Court dealing with powers of the Court under Section 31(2) of Act of 1971 and in para 30 it is observed that "the ratio of the earlier judgments was not disputed." However, in the peculiar facts of the case the Court held that the restoration application was maintainable since it was filed on the 37th day of the passing of the ex parte order and within 4 days after the date of knowledge.
9.7. Mr. Harish Thakur, learned Counsel, thus submits that the Courts under the Act of 1971, should be left with discretion to entertain application under Section 31(2) even if filed after 30 days of the passing of the ex parte order, if the same is found to have been filed diligently after the date of knowledge. The Court should have ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 18 the discretion to reject the application if it suffers from gross unexplained delay and laches and amounts to a gross abuse of the process of the court.
CONSIDERATION OF QUESTION NO.1.
10. It is trite that for considering the meaning, purpose and intent of any provision in a Statute, the language of the provision and the intent of the Statute, is of paramount importance. The expression which falls for consideration is "within 30 days of the receipt of the copy of thereof", as occurring in Section 31(2) of the Act of 1971. 10.1. The expression "within 30 days of the receipt of the copy thereof", would require several precursors namely :
a) the knowledge to the party that an ex parte order has been passed against him/ her/it.
b) upon acquiring knowledge of such ex parte order, an application has to be made for a copy of the order. This is so for the reason that an application for restoration would not be accepted and registered as a proceeding by the Registry, unless accompanied by a certified copy of the order and therefore the expression 'receipt of the copy thereof' as occurring in Section 31(2) will have to be read as ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 19 'receipt of a certified copy thereof', as correctly held in Popat Annaji Rautray (supra) ;
c) the copy of the order must be received and
d) an application for setting aside the ex parte order, to be
made, within 30 days of the receipt of the certified copy of the order.
10.2. Thus a plain reading of the provision would indicate that the period of 30 days, as enumerated in Section 31 (2) of the Act of 1971, for filing an application for setting aside the ex parte order, begins from the date of the receipt of the copy of the order and not otherwise.
10.3. Section 31(2) of the Act of 1971 does not provide that the application for setting aside an ex parte order, has to be made within 30 days of the order. That is not the language or intent of Section 31(2) and the legislature, has consciously omitted the use of the expression "from 30 days of the order". Rather it has specifically used the expression "within 30 days of the receipt of the copy thereof." As stated above, for receipt of a copy of the order, one has to apply for the same; for applying for a copy of the order, the party has to be aware or shown to have knowledge of the passing of the ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 20 ex parte order and unless such knowledge of the passing of an ex parte order is with the party, the question of applying for such order and its consequent receipt would not arise at all. 10.4. True it is that in a given case there may be a huge gap between the date of passing of the ex parte order and the date on which the party acquires knowledge of the same and then makes an application for a copy of the ex parte order, however, by a conscious avoiding of the use of the words "from the date of the order," in Section 31(2), the intention of the legislature is apparent, that it wanted to give as long a rope as possible, to a party involved in a litigation under the Act of 1971.
10.5. Reading the words 'from the date of the order', into the language of Section 31(2) would be doing violence with the same, which is not permissible under the cannons of interpretation, as applicable in this regard.
10.6. We are aware that giving a literal meaning to the expression "within 30 days of the receipt of the copy thereof", would lead to a situation, where there is no time limit between the date of ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 21 passing of the ex parte order and the date of making of an application for receipt of a copy thereof and the same would depend on the acquisition of knowledge, which would be on a case to case basis, however that cannot be avoided, considering the language of the provision.
10.7. The intention of the legislature behind enacting Section 31(2) of the Act of 1971, appears to be to provide an opportunity to the party against whom an ex parte order has been passed, to contest the proceedings on merits by applying for setting aside such ex parte order. It is not as if, no time limit is prescribed for the same. A period of 30 days has been stipulated for making an application for setting aside an ex parte order, from the date of receipt of a copy of the order. The question is not as to from which date this period of 30 days begins, for that date is fixed as the date on which the copy of the ex parte order is received. The question is as to within what time frame the copy of the ex parte order has to be applied for. The question of knowledge to a party then assumes significance. 10.8. Thus a meaningful and purposive interpretation needs to be made of the provisions of Section 31 (2) and doing so, leads us to ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 22 the irresistible conclusion that a plain reading of the expression "within 30 days of the receipt of the copy thereof," does not brook of any other meaning than that the application for setting aside the ex parte order has to be made within 30 days of the certified copy of ex parte order having been received, irrespective of the distance or time lag between the date of passing of the ex parte order and receipt of a copy thereof.
11. In L.P.A. No.3/2004 decided on 5/1/2004, which has been considered in almost all cases thereafter, the complaint was dismissed in default by the Industrial Court on 4/8/1995 and the original complainant had approached for restoration of the matter under Section 31(2) of the Act of 1971 in 1997. The Industrial Court held that it had no jurisdiction to deal with a restoration application beyond 30 days of dismissing the complaint in default. In Writ Petition No.631 of 2003, against the order of the Industrial Court, this Court upheld the order of the Industrial Court and dismissed the writ petition. In Letters Patent Appeal, the learned Division Bench held as under :-
"We have considered the scheme of Section 31 of the M.R.T.U. and P.U.L.P. Act, 1971. Sub-Section (2) therein enables aggrieved party to file an application for restoration ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 23 within a period of 30 days. There is no power with the Court concerned to condone the delay on the lines of such a power as has been provided under Section 30 of the Act. The learned Member of the Industrial Court, therefore, held that the application for restoration, filed beyond a period of 30 days, cannot be entertained and in addition there was no sufficient reason put forth by the Applicant to condone the delay of over two years in filing such an application. This finding regarding sufficient reasons was based on the assessment of the evidence, which was recorded by the Industrial Court before the said application was decided."
and consequently dismissed the Letters Patent Appeal.
However, it would be material to note here that what fell for consideration there and was decided, was whether the application for restoration which was filed beyond a period of 30 days as provided in Section 31(2) of the Act of 1971, could have been entertained and decided and not the question no.1, in hand which is whether the period of 30 days as contemplated in Section 31(2) of the Act of 1971, commenced from the date of passing of the order or the date of receipt of the certified copy and therefore this judgment is of no assistance to decide the question no.1, in the present reference. In fact the Court was not averse to the application being entertained, if sufficient cause was shown to condone the delay, as appears from the later part of the order. ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 24 The same reasoning applies to the dictum in Dilip Vitthal Jogdand (supra) as it holds that the Industrial Court, had no power to condone the delay so far as applications for restoration of complaints dismissed in default, filed beyond the period as contemplated by Section 31 (2) of the Act of 1971, is concerned relying upon the decision in L.P.A. No.3/2004. Similar view has been taken in Dnyandeo Tukaram Londhe [L.P.A. No.314/2007 -relying upon Dilip Jogdand]; Anand Shivrao Samant [relying upon Dnyandeo Londhe] (supra) and what has been stated in respect of Dilip Jogdand (supra) would equally apply to them too.
11.1. Baban Raosaheb Dongre (supra) is a case in which the petitioner was terminated on 1/8/1996, and the complaint filed before the Labour Court came to be dismissed in default on 21/7/2004. An application for restoration by setting aside the order of dismissal in default, came to be filed on 23/9/2010, i.e. six years after the order dated 21/7/2004 dismissing the complaint in default. This application for restoration, was dismissed by the Industrial Court, holding that the application was untenable. In writ petition, the learned Single Judge, relying upon the judgment of the Division Bench in Dilip Vitthalrao Jogdand (supra), which held that an application for restoration filed ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 25 beyond the period of thirty days could not be entertained as under
Section 31 (2) of the Act of 1971, the Court did not have any power to condone the delay, held that Sopan Ramkrishna Nirmal Vs. Pravara Medical Trust, by a learned Single Judge, which took a contrary view, was per incuriam, for not noticing the judgment of the Division Bench in Dilip Vitthalrao Jogdand (supra). It is however material to note that the expression "within 30 days of the receipt of the copy thereof", was not in consideration in Baban Raosaheb Dongre (supra), and therefore, was not interpreted.
12. In Sopan Ramkrishna Nirmal Vs. Pravara Medical Trust, W.P. No.9175/2012, decided on 17/2/2014 (Shri S.P. Deshmukh, J.) the application for restoration came to be rejected on the ground that the same was moved beyond period of thirty days after the date of knowledge of the order. The complaint came to be dismissed in default on 17/6/2005, knowledge about which was attributed to the petitioner on 27/8/2010, whereupon a certified copy was applied for, on receipt of which within thirty days, the application for restoration was moved, which came to be dismissed. The High Court on finding, that the order of dismissal, was not communicated to the petitioner, till 27/8/2010, held that the petitioner was not going to be benefited by a deliberate ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 26 delay in approaching the Industrial Court or to make an application for certified copy and therefore it was a fit case to award reasonable costs for remedying the situation and by imposition of costs of Rs.5,000/- the application for restoration was allowed. Similar view has been taken in Shrirang Pandurang Tadas; Bhagmal [(2010) 12 SCC 159)] ; Madan [(2014) 2 SCC 720] - a case under the Land Acquisition Act, 1894]; Popat Anaji Rautray - which though holds that the expression 'receipt of a copy thereof', in Section 31(2) of the Act of 1971 shall mean 'a certified copy thereof' and the date of receipt of the certified copy was not considered, and in our opinion rightly, for counting the period of limitation and it was held that the application for restoration was within the time limit as prescribed in Section 31(2); Sayaji Mahadu Gavhane - holding that the application for restoration filed from date of knowledge was within the time as contemplated by Section 31(2); Bhagmal (supra) in which an application for setting aside the ex parte decree, dated 19/4/1985, as filed on 8/7/1988, i.e. within thirty days after knowledge about the same was acquired on 22/6/1988 was held to be within limitation. Sopan Ramkrishna Nirmal and other matters as stated above correctly consider the proposition as raised in question no.1, in the proper perspective as the date of knowledge, of the impugned order, being the fulcrum upon which the entire issue turned. ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 27 All those cases in which the application has been entertained beyond the period of 30 days, would stand covered by the answer to question no.2.
12.1. Grindlays Bank (supra) holds that consequent to passing of an award the Tribunal did not become functus officio but had the jurisdiction to set aside the ex parte award. It also held that where a party was prevented from appearing at the hearing due to sufficient cause and was faced with an ex parte award, it was as if the party was visited with an award without a notice of the proceedings and in absence of such a notice the award would be a nullity and in such circumstances the Tribunal had not only the power, but also the duty to set aside the ex parte award and to direct the matter to be heard afresh, which was also the position as contemplated by Rules 22 and 24 (b) of the Industrial Disputes (Central) Rules, 1957. It is also held that there was no finality attached to an ex parte award because it was also subject to its being set aside on sufficient cause being shown. 12.2. Mahabir Prosad Choudhary Vs. M/s. Octavius Tea and Industries (supra) was a case under the Industrial Disputes Act, in which the party was proceeded ex parte on 29/11/2007 and an ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 28 ex parte award came to be passed on 26/2/2008, which was sought to be recalled and set aside by an application dated 2/5/2008. The basic contention which was under consideration, was that after passing of the award, the Industrial Tribunal, would become functus officio and would not have any jurisdiction to entertain an application for setting aside the ex parte award which contention was negated by relying upon Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others 1980 (Supp) SCC 420; Anil Sood Vs. Presiding Officer, Labour Court -II, (2001) 10 SCC 534 and Radhakrishna Mani Tripathi Vs. L.H. Patel and another, (2009) 2 SCC 81 and the language of Rules 20-B (5) and 21 of the West Bengal Industrial Disputes Rules, 1958, further holding, that power to proceed ex parte available, under the Rules, would also include the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing and if sufficient cause was shown, then if the party is visited with an award with a notice, the same would be nullity, being contrary to the principles of natural justice and therefore the Tribunal will have no jurisdiction to proceed and consequently must necessarily have the power to set aside the ex parte award. On facts, it was held that the Tribunal did not loose jurisdiction, on account of the application for setting aside the ex parte award being made after the period of thirty ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 29 days from its publication, though Rule 21 of the West Bengal Industrial Disputes Rules, 1958 did not require service of a notice. The question under consideration in the present matter did not arise in Mahabir Prosad Choudhary (supra).
13. The contention of Mr. Harish Thakur, learned Counsel regarding Section 46 of the Act of 1971, lending a finality to the orders passed by the Labour and Industrial Court, has to be looked into in light of the language of Section 46 of the Act of 1971, which provides that no order of the Labour or Industrial Court in respect of offences tried under the Act of 1971, shall be called in question in any Criminal Court. It is apparent that the context is altogether different than the one under consideration, apart from which passing of any ex parte order can never be said to give any finality to any litigation as the same can always be set aside for sufficient cause, which even in the case of an order passed under Section 31(1), is so permissible under Section 31(2) of the Act of 1971.
14. The answer to question no.1, thus is that the period of 30 days as mentioned in Section 31 (2) of the Act of 1971 is to be counted not from the date of the ex parte order passed under Section 31 (1) ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 30 but from the date of receipt of the certified copy of the ex parte order, which would be irrespective of the distance or time lag between the date of passing of the ex parte order and receipt of the certified copy thereof and the Court is empowered to entertain the same and set aside the ex parte order, upon receipt of such an application.
CONSIDERATION OF QUESTION NO.2
15. The provisions of Section 29(2) of the Limitation Act, 1963, being relevant are reproduced hereunder :
"29. Savings.--
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
Thus, though Section 31(2) of the Act of 1971, prescribes a period of 30 days from the receipt of the copy (certified) of the order, for making an application for restoration by setting the ex parte order, it will be seen that it is silent as to what happens, if any application for ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 31 restoration is made thereafter. It will therefore have to be seen whether there is any express bar to the application of the provisions contained in the Limitation Act, 1963, to proceedings under Section 31(2) of the Act of 1971.
15.1. The law in so far as the applicability of Sections 4 to 24 of the Limitation Act, 1963, by virtue of Section 29 (2) thereof to various statutes, is spelt out by the following judgments:
(a) In Mangu Ram (supra) it was held that mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5 of the Limitation Act, in as much as unless the Special or Local Law, expressly excludes the applicability of Section 5 of the Limitation Act, the same would be available by virtue of Section 29 (2) of the Limitation Act, subject to the satisfaction of the sufficient cause criteria.
(b) In Mukri Gopalan (supra) the Hon'ble Apex Court while considering the applicability of Section 29 (2) of the Limitation Act, 1963, in the matter of an appeal under Section 18 of the Kerala Rent Act, 1965, held that when the Appellate Authority is a Court and not ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 32 a persona designata then for the applicability of Section 29 (2) of the Limitation Act the following two requirements would be necessary to be satisfied.
(i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application.
(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act (para 8).
and once the said two conditions were satisfied, held that the consequences contemplated by Section 29(2) would automatically follow, which were :
(a) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the Schedule.
(b) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions contained in Sections 4 to 24 (inclusive) would apply in so far as and to the extent to which they are not expressly excluded by such special or local law (para 9).::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::
Civil WP 6694 of 2018.odt 33 Thus upon satisfaction of the requirements as enumerated above, Section 29 (2) on its own force will get attracted to appeals filed before the Appellate Authority under Section 18 of the Rent Act and it would therefore follow that Section 5 of the Limitation Act would also become applicable, as there was no express exclusion of the Limitation Act, in the Kerala Rent Act. Drawing an analogy from the same, it could be said that the Act of 1971 also does not expressly exclude the applicability of the Limitation Act and the Labour Court being a Court, the same principles will apply.
(c) Consolidated Engineering Enterprises (supra) holds that Section 14 of the Limitation Act, 1963 is available in the matter of calculating the limitation period prescribed in Section 32 (3) of the Arbitration and Conciliation Act, 1996 on the same principle as enunciated in Mukri Gopalan (supra) that there was no provision in the Arbitration and Conciliation Act, 1996, which excludes the applicability of Section 14 of the Limitation Act to an application made under Section 34 of the Arbitration and Conciliation Act, 1996.
(d) Kapil (supra) also relies upon Mukri Gopalan (supra) to hold the applicability of the Limitation Act by virtue of Section 29 (2) as contained therein, to the proceedings of appeal under the Railway ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 34 Claims Tribunal Act, 1987, on account of there being no express exclusion.
(e) In Superintending Engineer, Dehar Power House (supra) while considering the issue as to whether the High Court, exercising revisional power under Section 38 of the Himachal Pradesh Value Added Tax Act, 2005, can condone the delay in a case of revision under Section 48 of the said Act, if the revision is filed beyond ninety days from the date of communication of the order or it excludes the applicability of Section 29 of the Limitation Act, 1963 and in consequence of Section 5 thereof too, the principles as laid down in Mukri Gopalan (supra), Consolidated Engineering Enterprises (supra), Mangu Ram (supra) were considered, to hold that since there was no express exclusion of the provisions of Section 5 of the Limitation Act, the same would be applicable, by virtue of Section 29 (2) of the Limitation Act.
(f) Borse Brothers (supra), holds that Section 5 of the Limitation Act would apply to appeals under Section 37 of the Arbitration and Conciliation Act, 1996 which are governed by Sections 116 and 117 of the Limitation Act or Section 13(1A) of the Commercial Courts Act and any condonation of delay is by way of exception and not as a rule.
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Civil WP 6694 of 2018.odt 35 It thus follows that unless there is an express exclusion of the provisions of the Limitation Act, 1963, the same would be attracted by virtue of the mandate of Section 29(2) thereof, even if an express period is prescribed in the Statute, to which the same is sought to be applied.
15.2. To consider the applicability of the provisions of the Limitation Act, 1963 to an application under Section 31(2) of the Act of 1971, it is first necessary to have a look at the scheme of the Act of 1971. The Act of 1971, as is evident from a perusal of the Preamble, is a piece of beneficial legislation aimed at protecting the rights of the workers, in various Industries and Establishments, to which the Act applies and several other things.
15.3. Section 31 (2) of the Act of 1971, though prescribes a time of 30 days for filing of the application for setting aside the ex parte order, from the date of receipt of the copy of the order (meaning thereby a certified copy), the same does not provide for a contingency where, the application for setting aside ex parte order under Section 31 (2) is made beyond the period of 30 days as provided therein. At the same time it is material to note that the ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 36 language of Section 31 (2) does not expressly exclude the applicability of the provisions of Sections 4 to 24 of the Limitation Act 1963. The provision is totally silent on that aspect, which would indicate absence of any exclusion.
15.4. It is in this contextual background that the scheme of the Act of 1971 in so far as proceedings in Courts, are concerned, ought to be looked into, to ascertain the intent. Section 28 of the Act of 1971 prescribes the procedure for dealing with complaints relating to unfair labour practices. Section 28 (1) provides that such a complaint has to be filed within a period of 90 days from the date of occurrence. The period of 90 days, however is not absolute, but is controlled by the proviso thereto, which mandates that a complaint can be entertained after the period of 90 days if good and sufficient reasons are shown.
15.5. Similarly Section 42 (2) of the Act of 1971, provides for an appeal to the Industrial Court, to be filed within 30 days from the date of conviction, acquittal or sentence, as the case may be. Again this period of 30 days is not absolute, rather the proviso thereto ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 37 empowers the Court to entertain the appeal beyond the period of 30 days for sufficient reasons.
15.6. This clearly indicates that considering the beneficial nature of the legislation, it was the intention of the legislature for the Courts to decide the matter on merits and not in default. The dictum in Mangu Ram (supra) specifically spells out that merely because there is a provision of limitation, in whatsoever peremptory or imperative language, that is not sufficient to dispel the applicability of the provisions of the Limitation Act by virtue of Section 29 (2) contained therein. The language of Section 31 (2) of the Act of 1971, as indicated above, except for stating that the application for setting aside the ex parte order shall be filed within 30 days of the receipt of such order, does not say anything more and therefore, it can be said that there is no express exclusion indicated or created therein for the applicability of the provisions of the Limitation Act and that these provisions by virtue of Section 29 (2) of the Limitation Act 1963 shall be available to a party, in getting an order made ex parte, set aside, even if such application is made, beyond the period of 30 days as contemplated by section 31 (2).
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Civil WP 6694 of 2018.odt 38 15.7. In fact, the subsequent amendment in the Industrial Court Regulations, 1975, by the State by insertion of Section 119-A, thereby making the provisions of Sections 5 to 12 of the Limitation Act applicable to application filed under Section 31 (2) of the Act of 1971 recognizes the earlier legislative lacuna and corrects it. 15.8. The apprehensions expressed by learned Counsel Mr. Harish Thakur, can be covered under the expression 'sufficient cause', for the satisfaction of which the applicant has to plead necessary facts coupled with the obligation to satisfy the Court as to their existence, which necessarily has to be on a case to case basis. 15.9. The answer to question no.2, therefore has to be in the affirmative and it is held that by virtue of the mandate as contained in Section 29(2) of the Limitation Act, 1963, the provisions of Section 5 of the Limitation Act, 1963, shall be applicable to an application made under Section 31(2) of the Act of 1971 for setting aside the ex parte order as passed under Section 31(1) of the same.
16. The reference is thus answered as under :
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Civil WP 6694 of 2018.odt 39 Sr. Question Answer No.
1. Whether the Court under The period of 30 days as the Maharashtra mentioned in Section 31(2) of Recognition of Trade the Act of 1971 is to be counted Unions and Prevention of not from the date of the ex parte Unfair Labour Practices Act, order passed under Section 1971 has the power to set 31(1) but from the date of aside an ex parte order receipt of the certified copy of made under Section 31 (1) the ex parte order, which would of the said Act if an be irrespective of the distance or application to set aside time lag between the date of such order as contemplated passing of the ex parte order and by the provisions of Section receipt of the certified copy 31 (2) of the said Act is thereof and the Court is made after a period of empowered to entertain the thirty days from the date of same and set aside the ex parte that ex parte order despite order, upon receipt of such an such application having application.
been made within a period of thirty days of receiving a copy of that order ?
2. Whether an application An application under Section received after 30 days of the 31(2) of the Act of 1971, for receipt of copy of the order setting aside the ex parte order, could be dealt with in filed after 30 days of receipt of accordance with the the copy of the order, can be ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 ::: Civil WP 6694 of 2018.odt 40 provisions contained in entertained and dealt with by Section 29 (2) of the applying the provisions of Limitation Act, so that in Section 5 of the Limitation Act, appropriate cases, the delay 1963, in view of the mandate of could be condoned under Section 29(2) of the Limitation Section 5 of the Limitation Act and the delay, if reasons Act, 1963 ? found sufficient, can be condoned in appropriate cases.
17. Before we part, we record our appreciation for the able and effective assistance rendered by all the Counsels who have addressed us during the course of arguments.
18. The reference having thus been answered in the terms above, the matter may now be placed before the learned Single Judge, to decide, in light of the answers given.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.) Wadkar ::: Uploaded on - 25/06/2021 ::: Downloaded on - 26/06/2021 03:12:49 :::