1. By this petition filed under Article 226 of the Constitution of India, the petitioner-Employees' Union of Bombay Gas Company - is challenging the legality of order dated November 11, 1983 passed by the Member, Industrial Court, rejecting the application filed by the Union : for condonation of delay in filing the complaint. The facts giving rise to the passing of the impugned order are required to be stated to appreciate the grievance of the petitioner.
2. The employees of the Bombay Gas Public Limited Company went on strike on July 29, 1981 for realisation of their demands. The result of the strike was that the employees were not paid their wages for 29 days of July 1981. The workers approached the Company for payment of their wages for 29 days in the month of August 1981, but their demand could not be met with as the Company was unable to calculate the wages and pay the same, as even the clerical staff was on strike. The strike continued for a considerable period and on September 11, 1982 the petitioner Union informed the management that the employees belonging to their Union are withdrawing the strike and are joining the duties. It is required to be stated that the strike call was given not by the petitioner Union, but by another Union having hold in this Company. In spite of the willingness of the workmen belonging to the petitioner Union, the Company did not permit them to return back to the work.
Thereupon on September 14, 1982, the petitioner Union filed Complaint No. 682 of 1982 before the Industrial Court in accordance with the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act'). The complaint was filed under Item 6 of Schedule II of the Act seeking a declaration that the deemed lock-out by the Company is illegal. The Union also sought a direction for payment of wages of the employees for 29 days. The Industrial Court gave direction on October 6, 1982 to the Company to withdraw the lock out and permit the employees to join back the duties. The time was extended from time to time to enable the Company to open their gates but nothing concrete took place till 1983.
The petitioner Union also filed reference No. 101 of 1982 on September 18, 1982 before the Labour Court for a declaration that the Company had declared lock out and in these proceedings also the Union sought direction for payment of wages of 29 days which the employees were deprived of for no reason whatsoever. In both the proceedings instituted by the Union, the authorities declined to pass an interim order directing payment of wages of 29 days to the employees. The Company also raised the contention in both the proceedings that the authorities had no jurisdiction to award wages to the employees.
3. Thereupon on October 21, 1983, the Union filed another complaint under Item No.9 of Schedule IV before the Industrial Court, Bombay and this complaint was numbered as Complaint No. 734 of 1983. Item 9 of Schedule IV deals with failure to implement the Award, settlement or agreement and the grievance of the Union was that the payment of wages and dearness allowance are governed by the Award of settlement reached between the Company and the employees from time to time. The Union pleaded that the Company should be directed to effect payment of earned wages for the month of July 1981 with interest. Along with the complaint, an application for condonation of delay as contemplated by proviso to Section 28(1) of the Act was also filed. Section 28(1) of the Act reads as under:-
'(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under Section 5, or as the case may be, under Section 7, of this Act:Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint'.
The Section demands that a complaint should be filed before the Competent Court within ninety days of the occurrence of unfair labour practice and the proviso enables the Court to entertain the complaint even after the period of ninety days, if good and sufficient reasons are shown for late filing of the complaint. The Union in the application for condonation of delay pointed out that the wages for the month of July 1981 were not paid as all the workers connected with the calculation and disbursement were not available due to the strike. The Union contended that the respondent Company pleaded its inability to pay the wages on that ground and held out an assurance that as soon as the strike is called out and the work is resumed and normalcy is restored, all the workers will be paid wages for the month of July 1981. The Union claimed that the workmen relied upon the assurance and waited for a considerable period but ultimately when the Company reopened its gates on July 21, 1983 and took in its employment 248 out of 1250 workers, the workmen approached the Company and sought payment but the Company declined to honour their assurance. The Union pleaded that the workmen should not be deprived of their wages which they have earned by working merely on the ground that they had filed complaint after the period of limitation. The Union sought condonation of delay on the ground that the workmen relied upon the assurance given by the Company.
The Company resisted the application and the Member of the Industrial Court by the impugned order rejected the application for condonation of delay on the ground that the reasons furnished by the Union for condonation of delay are not sufficient. The order of the Industrial Court is under challenge.
4. Shri Shetye, learned counsel appearing on behalf of the petitioner Union, submitted that the approach of the Industrial Court is entirely erroneous and one-sided and clearly indicates that the Industrial Court has failed to see the justice in the matter. I find considerable merit in the submission of the learned counsel. On behalf of the Union, affidavit was filed by Narayan Sabaji Sarmalkar and it is stated that he returned for work on July 29, 1981 but could not carry out the work as he was physically prevented from entering the Company's premises by the striking workmen. The workman further stated in the affidavit that he approached the Officers of the Company along with other employees seeking the wages for the month of July 1981 but the General Manager assured them that payment would be made after the normal work is resumed. The workman further stated that the company after reopening on July 21, 1983 gave a notice of closure and is now denying the liability to pay the wages for the work done by the employees in the month of June 1981 on specious ground that the Company suffered losses due to the strike and due to the illegal acts committed by the workers.
5. On behalf of the Company, Shri T.P. Soundara Rajan filed an affidavit and denied that the General Manager or the Officers of the Company had promised to pay the wages as soon as the normalcy is restored. The Industrial Court, on the strength of this affidavit, came to the conclusion that the Union has failed to show sufficient and good reasons for condonation of delay. The Industrial Court held that the claim made by the Union that the Company assured to make payment after the restoration of the normalcy cannot be accepted because if such assurance was given, then the workmen would not have claimed payment of wages in the two proceedings adopted on September 14, 1982. The two proceedings were: Complaint No.682 of 1982 and Reference No. 101 of 1982. The Industrial Court felt that making of this claim clearly disproves the contentions of the Union that the Company had assured to make payment. The Industrial Court also held that as the claim for wages for the work done by the employees was made in the two proceedings, ana though the Company pleaded in those proceedings that such claim was not maintainable, still there is a possibility of the grant of relief, in those proceedings and, therefore, the delay should not be condoned. In my judgment, both the reasons given by the Industrial Court are entirely erroneous and the Industrial Court had failed to properly exercise the jurisdiction vested in it.
6. Shri Cama, learned counsel appearing on behalf of the Company, very strenuously urged that the finding recorded by the Industrial Court is a finding of fact and it is not permissible for this Court to disturb this finding in exercise of writ jurisdiction. Reliance was placed on the decision of the Supreme Court in the case of Sitaram Ramcharan and Ors. v. M.N. Nagrashana, Authority under the Payment of Wages Act for Ahmedabad Area, Ahmedabad and others : (1960)ILLJ29SC . I am fully conscious of the limitations on the powers of this Court while exercising jurisdiction under Article 226 of the Constitution of India but it cannot be ignored that when sheer injustice has been done by the Industrial Court, refusal to exercise powers on the technical ground would amount to perpetuating injustice for all times to come. It is difficult to imagine how the Industrial Court can refuse to condone the delay on the given set of facts and when the workmen were deprived of the wages in respect of the work which they had done. The entire approach of the Industrial Court is highly technical and almost perverse and in my judgment, the Industrial Court by declining to condone the delay has done great injustice to the cause of the workers. I am therefore, failing in my duty if I shut my eyes to the reality and decline to disturb the order of the Industrial Court on technical grounds. Now, turning to the affidavits filed by the Union and the Company in support of their respective claims for condonation of delay, I find that the affidavit filed by Shri Sarmalkar is more acceptable than that filed by Soundara Rajan denying that the assurance was given by the Office of the company to make payment after restoration of the normalcy. On behalf of the Union, attention of the Industrial Court was invited to the letters written by the Company on June 21, 1983 and February 21, 1983. These letters indicate that the General Manager has written to the workmen that wages for July 1981 could not be paid due to nonavailability of attendance records and on account of go slow tactics and the illegal strike resorted to by them from July 29, 1981. The General Manager writes that no action can be taken for the present in respect of payment of wages. This is what the General Manager solemnly informs the workmen on February 21, 1983 and this letter is written because the Company did not open its gates till July 21, 1983. Another letter assures the workmen that the Provident Fund dues as well as other dues, if payable, will be paid in due course. Both these letters do not even whisper that the wages are not payable because the workmen had resorted to strike causing losses to the Company. On behalf of the Union, attention of Industrial Court was also invited to the pleadings of the Company in the two proceedings earlier instituted. In the written statement filed in Reference No. 101 of 1982, the Company stated as follows:
'The Company says that the workmen including the office staff members resorted to illegal strike effective from July 29, 1981 and consequently the wages for the month of July 1981 could not have been calculated and cannot be paid and so is the case with bonus. It is denied that the Company wanted to strangulate the workers economically for the stoppage of work from July 1981. The Company says that the workers and their Union by their act and resorting to an illegal strike has strangulated the Company to the extent that the Company is unable to make payment of bonus and wages immediately.____The Company says that as soon as the normalcy is restored, the Company would be in a position to make these payments'.
In the written statement filed in the other proceedings being Complaint No. (ULP) 682 of 1982, it was pleaded by the Company:
'The workmen including the staff members resorted to illegal strike and consequently wages for the month of July 1981 could not be calculated and could not be paid. ____ The Company says that because of the illegal strike, the Company incurred losses and was not in a position to make payment immediately. The Company says, as soon as normalcy is restored, it would be in a position to make these payments'.
The perusal of the two letters written by the General Manager in the month of June 1983 and the perusal of the written statement in the two complaints filed in the year 1982 leaves no manner of doubt whatsoever that the Company was assuring the workmen that the wages for the month of July 1981 would be paid as soon as the normalcy is restored. It is difficult to appreciate how the Industrial Court could have overlooked this substantial material on record and has taken almost a perverse view by suggesting that the fact that the workmen made the demand in the two proceedings must indicate that no assurance was given by the Company for making payment on restoration of normalcy. The Written statement filed by the Company in the two proceedings and the two letters of the General Manager conclusively establish the claim of the Union that the Company had assured payment of wages on restoration of normalcy. Instead of carrying out the assurance, the Company proceeded to take steps to close the factory and deprive the workers of their dues for all time to come. In my judgment, first reason furnished by the Industrial Court for declining to condone the delay is wholly unsustainable.
7. The second reason that it is possible that, the workers might get relief in respect of payment of wages in the two proceedings is equally unsustainable. The Company was claiming in both those proceedings that the relief for wages for July 1981 could not be granted and indeed the Court declined to grant the interim relief in those proceedings. Inspite of that fact, the Industrial Court proceeded to observe that the grant of relief claimed in those two proceedings cannot be ruled out. Moreover, if relief is possible in those proceedings then the Industrial Court ought to have condoned the delay and entertained the present complaint also. In my judgment, the entire approach of the Industrial Court is faulty and the order dated November 11, 1983 passed below Ex.U-2 refusing to condone the delay is required to be set aside.
8. Accordingly, the petition succeeds and the order dated November 11, 1983, passed by Member, Industrial Court below Ex.U-2 in Complaint (ULP) No. 734 of 1983 is set aside and the application for condonation of delay is granted. It is required to be made clear that the Union did not press for setting aside the order passed by the Industrial Court below Ex.U-4. The proceedings are remitted back to the Industrial Court for disposal of the complaint on merit. The industrial Court is directed to dispose of the proceedings as expeditiously as possible. The Company shall pay the costs of the workmen.