24 Jun 2121

If an application is made beyond the period of 30 days, the delay can be condoned if there is sufficient cause - Bombay High Court

Case : Maharashtra State Cotton Marketing Employees Co-Operative Spinning Mills Limited, Akola v. Satish Narayanrao Gawande Civil Writ Petition No. 6694 /2018

Court : Bombay High Court

Bench : Justice Sunil B. Shukre and Justice Avinash G. Gharote

Decided on : 24 Jun 2121

Relevant Statutes

Section 31(2) of the Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971

Sections 3, 5 to 12 and Section 29 (2) of the Limitation Act 1963

Brief Facts and Procedural History

1. A learned Single Judge of the Honourable High Court considered the issue of 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 was made after the period of 30 days of ex parte order but within the 30 days of receiving the copy of ex parte order.

2. It was held by the Letter Patent Appeal No 3 of 2004 that there is no power of the court to condone the delay which was subsequently followed in Baban Raosaheb Dongre vs Pravare Medical Trust, 2014 M.C.R. 981, Dilip Vitthal Jogdand vs. Vaidyanath Urban Co-op Bank Ltd, 2007 II CLR 293. The learned Single Judge was of the view that it is of general importance and also does not prima facie appear any bar or prohibition to entertain such application if it was made after thirty years.

3. Afterwards, this question was referred to the Division Bench by the Honourable Chief Justice. Further on 24/3/2021, they stated that there is a need to frame an additional question which naturally and consequently followed the question framed and referred and i.e An application which is received after 30 days of the receipt of the copy of the order can be deal with the Section 29 (2) of the Limitation act 1963 or the delay can be condoned under section 5 of the Limitation Act 1963. The State of Maharashtra has also made some amendments in Industrial Court Regulations, 1975 by inserting Regulation 119-A, 148 to 150. 

The Issues of the Case

Whether the Court has the power to set aside the ex parte order under Section 31(1) if the application is made after the period of 30 days of ex parte order but within the 30 days of receiving the copy of ex parte order under Section 31(2) of Maharashtra Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971?

Whether an application that is received after 30 days of the receipt of the copy of the order can be dealt with Section 29 (2) of the Limitation Act 1963 or the delay can be condoned under section 5 of the Limitation Act 1963?

The Observations of the Court

1. The Honourable Bombay High Court observed the interpretation of the expression “with in the 30 days of receipt of the copy of the order” under Section 31(2) of the Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971 as the knowledge to the party that an ex parte order has been passed against him/ her or the application for setting aside the ex parte order to be made with in the 30 days of the receipt of the certified copy of order irrespective of the distance between the date of passing of ex parte order and receipt of the copy.

2. The Honourable Bombay High Court referred one of the judgments i.e. Dilip Vitthal Jogdand vs. Vaidyanath Urban Co-op Bank Ltd, 2007 II CLR 293, it was held that the Industrial Courts had no power to condone the delay as the applications for restoration of a complaint filed beyond the period specified in Section 31(2) of Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971. In another judgment referred i.e. Sopan Ramakrishna Nirmal vs. Pravara Medical Trust, W.P. No. 9175/2012, It was held that if the application for restoration was made beyond the period of 30 days after knowledge of that order, it may be rejected.

3. The Honourable Bombay High Court referred to another judgment i.e. Grindlays Bank Ltd. vs Central Government Industrial Tribunal and others, AIR 1981 SC 606, it was held that if the party was prevented from appearing due to sufficient cause then the Authority had to set aside the ex-party order.

4. The Honourable High Court observed that Section 29(2) of the Limitation Act 1963 will apply if two conditions is satisfied i.e. there must be a provision for a period of limitation under special or local law or the said period should be different from the prescribed by the Schedule to the Limitation Act 1963  which further results in following observations:

a. If the period prescribed by the special or local law was the period prescribed by the Schedule then Section 3 of the Limitation Act 1963 would apply.

b. Section 4 to 24 of the Limitation Act 1963 would apply to the extent they are not excluded by any special or local law.

5. The Honourable High Court also observed that of there is no exclusion of provisions of Section 5 of the Limitation Act 1963, then the same will be applicable by virtue of Section 29 (2) of the Limitation Act 1963 and available to the party in getting set aside of the ex parte order even if the application is made beyond the period of 30 days under Section 31(2) of the  Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971 which means a delay can be condoned of there is sufficient cause.

The Decision Held by the Court

1. The period of 30 days under 31(2) of the Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971 is to be counted not from the date of the ex parte order passed under Section 31(1) of the Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971  but from the date of receipt of the certified copy of the ex parte order, irrespective of the time lag between the date of passing of the ex parte order and receipt of the certified copy, the Court is empowered to entertain the same and set aside the ex parte order

2. An application under Section 31(2) of the Maharashtra  Recognition of Trade Unions and prevention of Unfair Labour Practices Act 1971 for setting aside the ex parte order if filed after 30 days of receipt of the copy of the order, the provisions of Section 5 of the Limitation Act, 1963 with Section 29(2) of the Limitation Act, 1963 and the delay can be condoned in appropriate cases if there are sufficient reasons.

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