Bombay High Court
Maharashtra Cylinders Pvt. Ltd vs Pradeep S/O. Bhaurao Khodaskar ... on 28 July, 2017
Bench: I.K. Jain
1 280717 Judg. wp 1887.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1887 of 2016
Maharashtra Cylinders Pvt. Ltd.
A Limited Company duly incorporated
and registered under the Companies Act, 1956
having its Red Office at 'Khara Towers'
Tilak Sa Statute, Gandhi Sagar, Mahal, Nagpur
thru its Director Shri Elesh Punamchand Khara. .... Petitioner.
-Versus-
1] Pradeep Bhaurao Khodasksar,
aged about 58 years, Occ.-Nil,
R/o.-Ward No.3, Kalmeshwar, Nagpur.
2] Kosan Industries Ltd.,
A Limited Company duly incorporated
and registered under the Companies Act, 1956
having its Red Office at 64-65,
Laxmi Insurance Building, Sir. P M Road,
Mumbai- 400 001. .... Respondents.
-------------------------------------------------------------------------------------
Mr. A.J. Pathak, Counsel for petitioner.
Mr. S.G. Zinjarde, Counsel for resp. no.1.
-------------------------------------------------------------------------------------
Coram :
KUM. INDIRA JAIN, . J
th
Dated : 28 July, 2017.
ORAL JUDGMENT
2 280717 Judg. wp 1887.16.odt
Rule. Rule made returnable forthwith. Heard finally with
the consent of learned Counsel for the parties.
2] The challenge in this Writ Petition is to the order dated
09-12-2009 passed by the Presiding Officer, Second Labour
Court, Nagpur in I.D.A. Application No.122 of 2004 fastening the
liability on non applicant nos. 1 and 2 in the said proceedings
to pay Rs. 7,26,168/- to applicant within 30 days from the date of
order along with interest at the rate of 12% till realization.
3] The facts giving rise to petition may be stated in brief as
under :-
Respondent no.1 was in service of respondent no.2. He
was dismissed from service. The dismissal was challenged by
him in Complaint (ULPA) No.490 of 1986 before the First
Labour Court, Nagpur. The said complaint was allowed vide
judgment and order dated 04-07-2000 directing respondent
no.2 to reinstate respondent no.1 with continuity in service and
back wages. The petitioner was not party to the said complaint.
4] The petitioner purchased respondent no.2-Kosan
Industries Ltd., situated at Kalmeshwar on 23-12-1997. Prior to
3 280717 Judg. wp 1887.16.odt
sale deed agreement to sell was entered into between petitioner
and respondent no.2. Consequent to order passed by the First
Labour Court, Nagpur respondent no.1 preferred an application
under Section 33C(2) of the Industrial Disputes Act, 1947
(for short, 'the said Act') for recovery of amount. In the said
application petitioner was arrayed as non-applicant no.2. The
application was allowed and the Labour Court directed
petitioner and respondent no.2 to pay the amount to respondent
no.1.
5] It is, in this background, petitioner/non-applicant no.2 in
an application under Section 33C(2) of the said Act challenges
the legality and correctness of the said order on the ground
that petitioner was not party to the original proceedings.
6] According to petitioner it came to know about the order
on 06-04-2012 and thereafter filed Misc. (IDA) Case No.3 of
2012 along with an application for condonation of delay. The
said application has been rejected on the ground that petitioner
could not show sufficient cause and therefore delay being not
explained properly cannot be condoned. Being aggrieved
petitioner has invoked extraordinary jurisdiction of this Court.
4 280717 Judg. wp 1887.16.odt
7] Heard Mr. Pathak, learned Counsel for petitioner and
Mr. Zinjarde, learned Counsel for respondent no.1.
8] The learned Counsel for petitioner submits that petitioner
was not allowed to participate in main proceedings and in the
absence of petitioner order of payment was passed which
needs to be set aside. The learned Counsel for respondent
no.1 supports the order and submits that notice was issued to
petitioner and despite service of notice petitioner did not
participate in the proceedings. It is submitted that inordinate
delay of more than two years was not properly explained and
so the Labour Court has rightly held that sufficient cause for
condonation of delay was not made out.
9] With the assistance of learned Counsel for the parties,
this Court has gone through the impugned order dated
16-02-2016 passed in Misc. (IDA) Case No.3 of 2012. It can be
seen from the impugned order that petitioner had received
notice of I.D.A. Application No.122 of 2004 i.e. an application
under Section 33C(2) of the said Act. After receipt of notice
petitioner appeared and chose not to participate further in the
5 280717 Judg. wp 1887.16.odt
proceedings. According to petitioner respondent no.2 was
informed to participate on behalf of petitioner. The respondent
no.2 though assured did not participate and did not take any
step to contest I.D.A. Application No.122 of 2004. The
submission is that petitioner was denied an opportunity to
participate in proceedings and the order per se is not
maintainable in law.
10] It appears that in support of application for condonation of
delay petitioner examined one Bhaskar Balkrishna Shitule as a
sole witness. The evidence of this witness indicates that
petitioner had received notice of I.D.A. Application No.122 of
2004. It means an opportunity to participate in the proceedings
was already given to petitioner but instead of participating in the
proceedings petitioner informed respondent no.2 to represent
the petitioner.
11] As petitioner was having opportunities to participate in the
proceedings and to challenge the main proceedings i.e.
complaint filed by respondent no.1 had not availed the
opportunities at the relevant time, the Court below was right in
holding that delay has not been properly explained.
6 280717 Judg. wp 1887.16.odt
12] On overall scrutiny of impugned order, this Court did not
notice any fault with the same. As such no interference is
warranted. Hence, the following order :-
O r d e r
(i) Writ Petition No.1887 of 2016 stands dismissed.
(ii) Rule is discharged. No costs.
13] At this stage learned Counsel for respondent no.1
submits that vide order dated 07-04-2016 this Court has granted
ex parte ad interim stay and the application for withdrawal of
amount deposited by petitioner is pending before the Labour
Court. The learned Counsel seeks permission to withdraw
the said amount.
14] Permission to withdraw the amount is granted.
JUDGE
Deshmukh
