{"id":10025,"date":"2010-03-12T00:00:00","date_gmt":"2010-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanjay-shalikram-ingle-vs-ms-lokmat-on-12-march-2010-2"},"modified":"2018-03-04T21:07:08","modified_gmt":"2018-03-04T15:37:08","slug":"sanjay-shalikram-ingle-vs-ms-lokmat-on-12-march-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanjay-shalikram-ingle-vs-ms-lokmat-on-12-march-2010-2","title":{"rendered":"Sanjay Shalikram Ingle vs M\/S. Lokmat on 12 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sanjay Shalikram Ingle vs M\/S. Lokmat on 12 March, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                     1\n\n\n\n\n                                                                           \n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                   \n                         NAGPUR BENCH, NAGPUR.\n\n\n\n              WRIT PETITION  No.4816, 4792, 4802, 4904, 5080, \n\n\n\n\n                                                  \n                          5085 &  5152 OF 2009.\n\n\n\n\n                                        \n                                         -------\n                       \n    WRIT PETITION No. 4816\/2009.\n                      \n    Sanjay Shalikram Ingle,\n    Vasant Nagar, June Babhulkheda,\n    Nagpur - 27.                                                  ....PETITIONER. \n      \n\n\n                                         VERSUS\n   \n\n\n\n    M\/s. Lokmat, Proprietors\n    M\/s. Lokmat Newspapers Private Ltd.,\n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                ....RESPONDENT.\n\n\n\n\n\n                                         -------\n\n    WRIT PETITION No. 4792\/2009.\n\n\n\n\n\n    Shalikram Shriram Waghade,\n    c\/o. Shri Fagoji Neware,\n    Near Mata Mandir, Marar Toli, \n    Ramnagar, Nagpur.                                             ....PETITIONER. \n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 15:42:38 :::\n                                     2\n\n\n                                          VERSUS\n\n\n\n\n                                                                            \n    M\/s. Lokmat, Proprietors\n\n\n\n\n                                                    \n    M\/s. Lokmat Newspapers Private Ltd.,\n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                 ....RESPONDENT.\n\n\n\n\n                                                   \n                                          -------\n\n    WRIT PETITION No. 4802\/2009.\n\n\n\n\n                                         \n    Fulchand Baburao Gedam,\n                        \n    C\/o. Shri Ramchandra Waghmare,\n    Plot no.54, Howrah Peth, Opp. Hatgade\n    Kirana Stores, Near house of Shri\n                       \n    Satpute, Nagpur - 27.                                          ....PETITIONER. \n\n\n                                          VERSUS\n      \n\n\n    M\/s. Lokmat, Proprietors\n    M\/s. Lokmat Newspapers Private Ltd.,\n   \n\n\n\n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                 ....RESPONDENT.\n\n\n\n\n\n                                          -------\n\n\n    WRIT PETITION No. 4904\/2009.\n\n\n\n\n\n    Bharat Vithalrao Pimple,\n    C\/o. Shri Ramesh Pimple,\n    Near Priya Fabrication, Plot no.63,\n    Gedam Layout, IC Chowk,\n    Hingna Road, Nagpur.                                           ....PETITIONER. \n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 15:42:38 :::\n                                   3\n\n\n\n\n                                                                            \n                                      VERSUS\n\n\n\n\n                                                    \n    M\/s. Lokmat, Proprietors\n    M\/s. Lokmat Newspapers Private Ltd.,\n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                 ....RESPONDENT.\n\n\n\n\n                                                   \n                                          -------\n\n\n\n\n                                     \n    WRIT PETITION No. 5080\/2009.\n                      \n    Dnyaneshwar Haribhau Kadu,\n                     \n    C\/o. Shri Ramesh Haribhau Kadu,\n    Trimurti Nagar, Hsg. Board Colony,\n    Qr.No. LIG 16\/2, Ring Road, Nagpur.                            ....PETITIONER. \n      \n\n\n                                      VERSUS\n   \n\n\n\n    M\/s. Lokmat, Proprietors\n    M\/s. Lokmat Newspapers Private Ltd.,\n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                 ....RESPONDENT.\n\n\n\n\n\n                                          -------\n\n    WRIT PETITION No. 5085\/2009.\n\n\n\n\n\n    Ramesh Balkrishna Marwadi,\n    Takiya, Dhantoli \n    Nagpur - 440 012.                                              ....PETITIONER. \n\n\n                                      VERSUS\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 15:42:38 :::\n                                     4\n\n\n\n\n                                                                                \n    M\/s. Lokmat, Proprietors\n    M\/s. Lokmat Newspapers Private Ltd.,\n\n\n\n\n                                                        \n    Lokmat Bhavan, Wardha Road, Nagpur\n    through its Managing Director.                                     ....RESPONDENT.\n\n\n\n\n                                                       \n                                              -------\n\n    WRIT PETITION No. 5152\/2009.\n\n\n\n\n                                         \n    Prabhakar Rambhau Choudhari,\n    c\/o. Shri Prakash Vithalrao Lambat,\n                       \n    Vishram Apptt., Near Rajabaksha\n    Hanuman mandir, Medical Chowk,\n    Nagpur.                                                            ....PETITIONER. \n                      \n                                          VERSUS\n\n    M\/s. Lokmat, Proprietors\n      \n\n\n    M\/s. Lokmat Newspapers Private Ltd.,\n    Lokmat Bhavan, Wardha Road, Nagpur\n   \n\n\n\n    through its Managing Director.                                     ....RESPONDENT.\n\n\n                               ----------------------------------- \n\n\n\n\n\n               Mr.  S.D. Thakur, Advocate for Petitioners.\n               Mr.  V.P. Marpakwar, Advocate for Respondent.\n                               ------------------------------------\n\n\n\n\n\n                            CORAM :   B.P. DHARMADHIKARI ,  J. \n<\/pre>\n
    Date of reserving the Judgment.       -             17.02.2010.\n    Date of Pronouncement.                -             12.03.2010.\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 15:42:38 :::<\/span>\n                                          5<\/span>\n\n\n                   \n\n\n\n\n                                                                                     \n    JUDGEMENT.   \n\n\n\n\n                                                             \n     \n<\/pre>\n
    1.            Challenge in these Writ Petitions filed under Articles  226 read with <\/p>\n
    227 of the Constitution of India is to common order dated 21\/7\/2009 passed <\/p>\n
    below Exh. 2 and   12 by the Industrial Court at Nagpur in ULP Complaints <\/p>\n
    Nos.209 to 215 of 2009  filed under Section 28 read with schedule IV items 7 <\/p>\n
    and   9 of Maharashtra Recognition of Trade Unions and   Prevention of Unfair <\/p>\n
    Labour   Practices   Act,   1971,   (hereinafter   referred   to   as   “the   MRTU   Act”   for <\/p>\n
    short).   Industrial Court has held that in previous litigation between parties the <\/p>\n
    entitlement to   permanency was   already settled and hence, subsequent ULP <\/p>\n
    Complaints   which   only   sought   its   execution   needed   to   be   filed   only   under <\/p>\n
    Section  50 of MRTU Act. It therefore dismissed ULP Complaints No. 209 to 215 <\/p>\n
    of  2009  as not maintainable and  as time-barred.  Hence with the consent of <\/p>\n
    parties, Rule is made returnable forthwith and Writ Petitions are heard finally.\n<\/p>\n
    2.            Undisputed facts in relation to previous litigation between parties <\/p>\n
    reveal   that   by     the   common   order   dated   12.02.2002     the   Industrial   Court <\/p>\n
    allowed  seven earlier ULP complaints filed on 19\/10\/1996 under Section 28 of <\/p>\n
    MRTU Act against present respondent. Those seven complainants are petitioners <\/p>\n
    in these seven writ petitions before this Court. They had claimed permanency <\/p>\n
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\n                                             6<\/span><\/p>\n
    and   consequential   benefits  as per  provisions of  Model   Standing   Orders   after <\/p>\n
    completion of 240 days contending   that by not extending to them the said <\/p>\n
    benefits,   the   respondent   –   employer   had   indulged   in   unfair   labour   practice <\/p>\n
    falling under Item 9 of Schedule IV of Act No. I of 1972. Said item makes failure <\/p>\n
    to implement award, settlement, agreement etc., an unfair labour practice.  The <\/p>\n
    complainants there had   filed applications under Section 30(2) of MRTU Act <\/p>\n
    claiming as interim relief the   minimum wages as per provisions of Minimum <\/p>\n
    Wages   Act.   Those   applications   were   rejected   on   29.04.1998.   Thereafter,   the <\/p>\n
    complainants   sought   amendment   in   those   ULP   Complaints   pointing   out <\/p>\n
    termination   of   their   services   with   effect   from   01.05.1998.   The   respondent\/ <\/p>\n
    employer   filed   written   statement   and   denied   relationship   of   employer   and <\/p>\n
    employee. It was stated that all complainants were employees privately engaged <\/p>\n
    by the officers in the employment of the employer and on some occasions they <\/p>\n
    could have visited the establishment in connection with domestic work of said <\/p>\n
    officer.   It   was   contended   that   the   respondent   never   recruited   any   such <\/p>\n
    complainant.   It   was   further   stated   that   for   filling   in   the   posts   with   it,   the <\/p>\n
    vacancies   are   advertised,   applications   are   invited   and   after   interview,   the <\/p>\n
    successful candidate is given appointment order in writing. All this procedure <\/p>\n
    was not followed in the case of petitioners and   none of them was in fact in <\/p>\n
    employment   of   present   respondent.   With   this   defence,   the   petitioner   filed <\/p>\n
    applications for dismissal of complaint on the ground that as the employer and <\/p>\n
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\n                                          7<\/span><\/p>\n
    employee   relationship   was   in   dispute,   the   Industrial   Court   could   not   have <\/p>\n
    entertained   ULP   Complaint   at   all.   That   application   was   rejected   and   when <\/p>\n
    matter   came   before   this   Court,   on   27.11.2002   in   view   of   judgments   of   the <\/p>\n
    Hon’ble Apex Court in the case of Vividh Kamgar Sabha vs. Kalyani Steels Ltd.,<\/a> <\/p>\n
    reported at 2001 (1) SCC 381, and as also judgment of Division Bench of this <\/p>\n
    Court in the case of  Hindustan Coca Cola Bottling vs. Bhartiya Kamgar Sena,<\/a> <\/p>\n
    reported at  2002 I LLJ 380, the learned Single Judge allowed all those petitions.\n<\/p>\n
    The   complainants   then   filed   LPA   No.172   of   2003   to   178   of   2003   and   the <\/p>\n
    Division   Bench   of   this   Court   by   judgment   dated   13.07.2007   allowed   those <\/p>\n
    Letters Patent Appeals and restored the matter back before the Single Judge for <\/p>\n
    scrutiny   of   remaining   controversy.   This   judgment   of   Division   Bench   was <\/p>\n
    challenged before the Hon’ble Apex Court but then the Hon’ble Apex Court did <\/p>\n
    not grant  leave.  After said rejection by the Hon. Apex Court, a review was filed <\/p>\n
    before the Division Bench of this Court and rejection of that review was also <\/p>\n
    assailed in SLP again, which came to be rejected.  In these circumstances,  those <\/p>\n
    writ   petitions   were   considered   by   me   in   2009   (2)Mh.L.J.   369   –  Lokmat <\/p>\n
    Proprietors Vs.Prabhakar Rambhauji Choudhari. I did  not find any jurisdictional <\/p>\n
    error or perversity in the findings reached by the Industrial Court and hence that <\/p>\n
    challenge by the employer was dismissed on 10\/10\/2008. The employer then <\/p>\n
    filed LPA before this Court and  then an SLP before the Hon’ble Apex Court. Said <\/p>\n
    SLP is stated to be pending.\n<\/p>\n
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\n                                            8<\/span><\/p>\n
    3.             On   8\/6\/2009   or   thereabout   the   petitioners   filed   present   ULP <\/p>\n
    Complaints 209 to 215 of 2009 and   asked for wages    as also other  benefits <\/p>\n
    according to the provisions of   various awards like Palekar award, Bachawat <\/p>\n
    award and  Manisana award applicable to working journalists and claimed that <\/p>\n
    failure to extend the same to them constituted an unfair labour practice. By <\/p>\n
    other   prayer,   in   addition   to   amount   determined   as   above,   they   also   sought <\/p>\n
    compensation at 33% of that amount or interest thereon at 18% (which ever <\/p>\n
    higher)   as   they   are   made   victims   of   an   unfair   labour   practice.   In   short   the <\/p>\n
    grievance   after     permanency  is  in  respect  of   benefits  and  salary\/   salaries   in <\/p>\n
    appropriate pay scale as per their occupation as specified in different awards <\/p>\n
    governing   service   conditions   in   news   paper   industry.   Though   no   particular <\/p>\n
    amount as such is claimed in complainants, vide applications at Exh.2 under <\/p>\n
    S.30(2) for grant of interim relief, directions to employer to pay 75% of the <\/p>\n
    amount claimed in complaints during its pendency was sought. This application <\/p>\n
    was   replied   on   10\/7\/2009   by   respondent\/employer   pointing   out   that   ULP <\/p>\n
    Complaints   were   for   implementation   of   order   of   the   Industrial   Court   dated <\/p>\n
    12\/2\/2002   which   already     held   complainants   entitled   to   permanency   after <\/p>\n
    completion of 240 days of service “with all consequential benefits”. Hence  item <\/p>\n
    7 or item 9 were not at all applicable and as benefits needed to be calculated <\/p>\n
    and   recovered,   recourse   to     provisions   of   S.   50   of   the   MRTU   Act   was   only <\/p>\n
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\n                                            9<\/span><\/p>\n
    permitted. They also pointed out that S. 28 could not be read as substitute of S.\n<\/p>\n
    50   MRTU   Act   as   both   prescribed   different   periods   of   limitation.   They   also <\/p>\n
    pointed out the forum of Labour Court made available for such recoveries by S.\n<\/p>\n
    17 of the Working Journalists and  Other Newspaper Employees ( Conditions of <\/p>\n
    Service & Miscellaneous Provisions)   Act, 1955 i.e.,   “Working Journalists Act”\n<\/p>\n
    for short. They pointed out that the details of wages worked out by employee <\/p>\n
    were not placed on record and as the claim was for period prior to 1\/5\/1998, it <\/p>\n
    was   barred   by   limitation.   With   all   most   same   plea,   the   employer   also   filed <\/p>\n
    separate   applications   below   Exh.12   for   dismissal   of   ULP   Complaints.   On <\/p>\n
    18\/7\/2009 petitioners filed their reply to Exh. 12 denying all   challenges and <\/p>\n
    contending   that   unfair   labour   practice   was   occurring   day   to   day   and   their <\/p>\n
    complaints were not time barred. Impugned common order is passed in this <\/p>\n
    background below these Exhs. 2 and   12 by the Industrial Court. It may be <\/p>\n
    stated here that though in Ex. 12 contention that Working Journalists Act is a <\/p>\n
    special Act  and hence, MRTU Act or remedy under it stands impliedly repealed <\/p>\n
    has been raised, before this Court no such argument has been advanced.\n<\/p>\n
    4.             Shri   Thakur, learned counsel   has argued that entire approach of <\/p>\n
    the Industrial Court in accepting the objection of employer and holding that ULP <\/p>\n
    Complaints ought to have been filed under S. 50 of MRTU Act is unsustainable <\/p>\n
    on   facts   as   also   law.   First   as   per   annual   turn   over   of   the   newspaper,   its <\/p>\n
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\n                                         10<\/span><\/p>\n
    classification under the relevant award needs to be ascertained and then the <\/p>\n
    corresponding   wages or benefits prescribed therefor can be extended to the <\/p>\n
    complainants.   Till   the   categorization   or   classification   is   so   determined,   the <\/p>\n
    entitlement of petitioners can not crystallize and hence, exercise required to be <\/p>\n
    undertaken by the Industrial Court is of adjudication of basic facts from which <\/p>\n
    said  entitlement emerges. After declaration of permanency in earlier round, the <\/p>\n
    petitioners become entitled to benefits of various awards holding the field as per <\/p>\n
    Working Journalists Act and as those awards have not been extended to them, <\/p>\n
    item 9 of Sch. IV of MRTU Act has been rightly invoked.   He states that only <\/p>\n
    rough   calculations   are   made   by   the   petitioners   because   of   various   disputed <\/p>\n
    questions of facts involved and said calculations are filed as a document which <\/p>\n
    needs to be proved. All these calculations are denied by employer. However, the <\/p>\n
    plea on limitation is not countered by it.  As the awards are in force and are not <\/p>\n
    being applied to petitioners, it is case of continuous unfair labour practice. To <\/p>\n
    illustrate the scope of S. 50 of MRTU Act, continuous cause and  right approach <\/p>\n
    towards issue of limitation, he relied upon certain judgments and   I will refer to <\/p>\n
    them at appropriate juncture.\n<\/p>\n
    5.            Shri  Marpakwar, learned counsel on the other hand has supported <\/p>\n
    the impugned order by urging that it is not the case of continuous cause but of <\/p>\n
    execution of judgment of Industrial Court dated 12\/2\/2002 which as yet has not <\/p>\n
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\n                                          11<\/span><\/p>\n
    attained finality. He invites attention to ULP Complaints as filed in an effort to <\/p>\n
    demonstrate that only exercise of calculation is envisaged  and  no dispute about <\/p>\n
    classification or categorization is even alleged therein. Support is taken from the <\/p>\n
    document i.e,.   charts of calculations filed by the petitioners\/complainants to <\/p>\n
    show the amounts due and recoverable.   The MRTU Act itself makes a special <\/p>\n
    provision   for   such   calculations   and   hence,   only   forum   under   S.   50   is   open <\/p>\n
    therefor. Judgment of the Hon’ble Apex Court in Rajasthan State Road Transport <\/p>\n
    Corp. vs. Zakir Hussain<\/a> reported at 2005 III CLR 524 is pressed into service to <\/p>\n
    urge that said computation can not be done in any other way. As time limit <\/p>\n
    prescribed therefor had already expired, the ULP Complaints as filed have been <\/p>\n
    rightly dismissed by the Industrial Court.\n<\/p>\n
    6.            Industrial   Court   has   found   that   entitlement   of   petitioners   to <\/p>\n
    regularization and consequential benefits was already declared by competent <\/p>\n
    court on 12\/2\/2002 and only exercise of calculations of amounts in pursuance <\/p>\n
    thereof   under S. 50 was left. It found that complainants had also placed on <\/p>\n
    record the statement of amounts due to them as a document and it supported <\/p>\n
    contention that only arithmetical exercise was called for. It found that S. 28 <\/p>\n
    MRTU   Act   prescribed   limitation   of   90   days   and   as   cause   had   accrued   on <\/p>\n
    12\/2\/2002, ULP Complaints  filed in 2009 were after considerable delay. It also <\/p>\n
    expressed that though pending litigation may be a good excuse, delay does not <\/p>\n
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\n                                          12<\/span><\/p>\n
    get  condoned  automatically.  It  held  that  a  special   forum  under  S. 17 of  the <\/p>\n
    Working Journalists Act was also available and hence Complaints before it were <\/p>\n
    not maintainable. It concluded that alternate & efficacious  remedy under S. 50 <\/p>\n
    of MRTU Act or S. 17 of Working Journalists Act is available to Complainants <\/p>\n
    and hence, ULP Complaints were not tenable.\n<\/p>\n
    7.            In AIR 1958 S.C. 507 – 1958-I-LLJ 527  “Kasturi and Sons (Private) <\/p>\n
    Ltd.   v.   N.   Salivateswaran<\/a>“relied   on   by   Shri     Thakur,   learned   counsel     while <\/p>\n
    considering the   validity and   scope of S.17 of the   Working Journalists   Act, <\/p>\n
    Hon’ble   Apex Court     holds that the employee’s claim  against his employer <\/p>\n
    which can form the subject matter of an inquiry under S. 17 must relate to <\/p>\n
    compensation awardable under S. 4 , gratuity awardable under S. 5  or wages <\/p>\n
    claimable under the decisions of the Wage Board. If the employee wishes to <\/p>\n
    make any other claim against his employer, that would not be covered by S. 17.\n<\/p>\n
    As the marginal note shows, the section deals with the recovery of money due <\/p>\n
    from an employer. The section provides for a procedure to recover the amount <\/p>\n
    due from an employer, not for the determination of the question as to what <\/p>\n
    amount is due. The condition precedent for the application of S. 17 is stated to <\/p>\n
    be a prior determination by a competent authority or the Court of the amount <\/p>\n
    due to the employee from his employer. Hon’ble Apex Court holds that it is only <\/p>\n
    if and after the amount due to the employee has been duly determined, the <\/p>\n
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\n                                           13<\/span><\/p>\n
    stage is reached to recover that amount and it is at this stage that the employee <\/p>\n
    is given the additional advantage provided by S. 17 without prejudice to any <\/p>\n
    other mode of recovery available to him. The observations clearly show the ratio <\/p>\n
    &   learned   Member   of   Industrial   Court   could   not  have   given     importance   to <\/p>\n
    factual   matrix.   Law   laid   down  is   very   clear   and     the     Hon’ble     Apex  Court <\/p>\n
    observes :–\n<\/p>\n
                “9. In this connection, it would be relevant to remember  <\/p>\n
                that S. 11 of the Act expressly confers the material powers
\n                on   the   Wage   Board   established   under   S.   8   of   the   Act.  <\/p><\/blockquote>\n
                Whatever may be true nature or character of the Wage
\n                Board – whether it is a legislative  or  an administrative
\n                body – the legislature has taken the precaution to enact  <\/p>\n
                the enabling provisions of S. 11 in the matter of the said  <\/p>\n
                material   powers.   It   is   well   known   that,   whenever   the
\n                legislature wants to confer upon any specified authority
\n                powers of a civil Court in the matter of holding enquiries,  <\/p>\n
                specific provision is made in that behalf. If the legislature
\n                had   intended   that   the   enquiry   authorised   under   S.   17
\n                should include within its compass the examination of the
\n                merits of the employee’s claim against his employer and a <\/p>\n
                decision   on   it,   the   legislature   would   undoubtedly   have
\n                made   an   appropriate   provision   conferring   on   the   State
\n                Government or the specified authority the relevant powers
\n                essential   for   the   purpose   of   effectively   holding   such   an
\n                enquiry. The fact that the legislature has enacted S. 11 in  <\/p>\n
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\n                                 14<\/span><\/p>\n
      regard   to   the   Wage   Board   but   has   not   made   any  <\/p>\n
      corresponding   provision  specified  authority under  S.  17  <\/p>\n
      lends strong corroboration to the view that the enquiry
\n      contemplated by S. 17 is a summary enquiry of a very
\n      limited   nature   and   its   scope   is   confined   to   the  <\/p>\n
      investigation of the narrow point as to what amount is
\n      actually due to be paid to the employee under the decree,
\n      award,   or   other   valid   order   obtained   by   the   employee
\n      after   establishing   his   claim   in   that   behalf.   We   are <\/p>\n
      reluctant to accept the view that the legislature intended <\/p>\n
      that   the   specified   authority   or   the   State   Government
\n      should   hold   a   larger   enquiry   into   the   merits   of   the  <\/p>\n
      employee’s   claim   without   conferring   on   the   State
\n      Government   or   the   specified   authority   the   necessary
\n      powers   in   that   behalf.  In   this   connection,   it   would   be  <\/p>\n
      relevant to point out that in many cases some complicated
\n      questions   of   fact   may   arise   when   working   journalists  <\/p>\n
      make claims for wages against their employers.  It is not
\n      unlikely   that   the   status   of   the   working   journalist,   the  <\/p>\n
      nature of the office he holds and the class to which he
\n      belongs may themselves be matters of dispute between the
\n      parties and the decision of such disputed questions of fact
\n      may need thorough examination and a formal enquiry. If  <\/p>\n
      that be so it is not likely that the legislature could have
\n      intended that such complicated questions of fact should be
\n      dealt with in a summary enquiry indicated by S. 17.\n<\/p>\n
      10.            Section 17 seems to correspond in substance  <\/p>\n
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\n                                   15<\/span><\/p>\n
      to   the   provisions   of   S.   20,   sub-s.   (1)   of   the   Industrial  <\/p>\n
      Disputes (Appellate Tribunal) Act, 1950, which has now  <\/p>\n
      been repealed. Under this section, any money due from an
\n      employer under any award or decision of an Industrial
\n      Tribunal may be recovered as arrears of land revenue or  <\/p>\n
      as a public demand by the appropriate Government on an
\n      application made to it by the person entitled to the money
\n      under   that   award   or   decision.   It   is   clear   that   the
\n      proceedings under S. 20, sub-s. (1) could commence only  <\/p>\n
      if   and   after   the   workman   had   obtained   an   award   or  <\/p>\n
      decision in his favour. We are inclined to think that the
\n      position under S. 17 is substantially similar.\n<\/p>\n
      11.             In this connection we may also refer to the
\n      provisions of S. 33-C of the Industrial Disputes Act (14 of  <\/p>\n
      1947). Sub-section (1) of S. 33-C has been added by Act
\n      36 of 1956 and is modelled on the provisions of S. 17 of <\/p>\n
      the present Act. Section 33-C, sub-s. (2), however, is more
\n      relevant for our purpose. Under S. 33-C, sub-s. (2), where  <\/p>\n
      any workman is entitled to receive from his employer any
\n      benefit which is capable  of  being  computed  in terms  of
\n      money,   the   amount   at   which   such   benefit   may   be
\n      computed may, subject to any rules made under this Act,  <\/p>\n
      be determined by such Labour Court as may be specified
\n      in   this   behalf   by   the   appropriate   Government,   and   the
\n      amount so determined should be recovered as provided for
\n      in sub-s. (1). Then follows sub-s. (3) which provides for
\n      an   enquiry   by   the   Labour   Court   into   the   question   of  <\/p>\n
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\n                                          16<\/span><\/p>\n
                computing the money value of the benefit in question. The  <\/p>\n
                Labour   Court   is   empowered   under   this   sub-section   to  <\/p>\n
                appoint   a   commissioner   who   shall,   after   taking   such
\n                evidence   as   may   be   necessary,   the   Labour   Court   shall
\n                determine the amount after considering the report of the  <\/p>\n
                commissioner and other circumstances of the case. These
\n                provisions   indicate   that,   where   an   employee   makes   a
\n                claim for some money by virtue of the benefit to which he
\n                is entitled, an enquiry into the claim is contemplated by <\/p>\n
                the Labour Court, and it is only after the Labour Court  <\/p>\n
                has   decided   the   matter   that   the   decision   becomes
\n                enforceable under S. 33C (1) by a summary procedure.”\n<\/p>\n
                   These observations therefore clearly show that forum under S.17 of the <\/p>\n
    Working   Journalist   Act   is   available   only   when   an   ascertained   sum   is   to   be <\/p>\n
    recovered   and   not   otherwise.   Here,   first   the   classification   of   respondent <\/p>\n
    newspaper and categorization is essential and then only the wages and   other <\/p>\n
    benefits relevant for petitioners can be determined. Petitioners are praying for <\/p>\n
    that determination and also for compensation and interest for subjecting  them <\/p>\n
    to unfair labour practice. This compensation can not be awarded to them in <\/p>\n
    proceedings under S. 17. In any case as S. 17 is not equivalent to S.33-C-2 of <\/p>\n
    Industrial   Disputes   Act,   no   inquiry   into   any   dispute   as   to   classification   or <\/p>\n
    categorization and annual turn over of the respondent news paper is possible <\/p>\n
    under it. The finding of Industrial Court about availability of remedy under  S.\n<\/p>\n
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\n                                           17<\/span><\/p>\n
    17   to   petitioners   is   unsustainable.   It   is   obvious   that   theory   of   an   alternate <\/p>\n
    efficacious remedy was\/is not relevant at all.\n<\/p>\n
    8.             The next aspect to be scrutinized is that of limitation and continuous <\/p>\n
    cause of action. S.28 as also S.50 of the MRTU Act prescribe different periods of <\/p>\n
    limitation and both also enable the Labour or the Industrial court to condone <\/p>\n
    delay.   Paragraph   2   of   the   ULP   Complainants   show   the   contention   that <\/p>\n
    respondent   newspaper   establishment   is   covered   by   the   provisions   of   the <\/p>\n
    Factories Act, Industrial Disputes Act, Industrial Employment Standing orders <\/p>\n
    Act and  Model Standing Orders framed thereunder. Paragraph 3 shows claim of <\/p>\n
    entitlement to provisions of the Working Journalist Act and benefits accruing to <\/p>\n
    newspaper   employees   under     various   awards   like   Palekar   award,   Manisana <\/p>\n
    Award   and     Bachawat   Award   etc.     Bahawat   Award   classifies   the   newspaper <\/p>\n
    establishments in para 11 of Section II of Part I of Chapter IX of the Report on <\/p>\n
    the   basis   of   the   gross   revenue   into   10   classes.   Ascertaining   whether   their <\/p>\n
    advertisement revenue is less or more than 45 per cent, of its gross revenue is <\/p>\n
    also   essential   for   this   purpose.   In   2009(1)   CLR   93-  Mukund   Nana   Edke <\/p>\n
    Vs.Dainik   Gavkari,   learned   Single   Judge     while   considering   challenge   to <\/p>\n
    rejection of  petitioner’s application u\/s 33 C(2) claiming monetary benefits in <\/p>\n
    view of the Award passed by Justice Manisana Commission has found that the <\/p>\n
    jurisdiction of labour court u\/s 33-C(2) is very limited and is in the nature of <\/p>\n
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\n                                          18<\/span><\/p>\n
    execution proceeding. Unless a party has a pre-existing or pre-adjudged right the <\/p>\n
    proceedings u\/s 33-C(2) are not tenable and as claim made by petitioner there <\/p>\n
    was   not   adjudged   by   any   competent   authority,   labour   court   was   right   in <\/p>\n
    rejecting     that   application.   In   2009(3)   ClR   782-  Navbharat   Press   Employees <\/p>\n
    Union Vs. State of Maharashtra, Labour Industries and  Energy Department and <\/p>\n
    others, conciliation officer declined to refer the demand for adjudication holding <\/p>\n
    that the dispute was only in respect of implementation of Manisana Award and <\/p>\n
    it did not fall within the ambit of law and could not be admitted in conciliation.\n<\/p>\n
    Division Bench of this Court held that the dispute was as regards entitlement of <\/p>\n
    the members of the petitioner union to higher wages on the basis that employer <\/p>\n
    newspaper  fell in Class II and not in Class IV of Clause 6 of the Manisana Award <\/p>\n
    and hence basic question which  to be decided was about  class in which it fell.\n<\/p>\n
    It would involve a detailed investigation as regards gross revenue  and was not a <\/p>\n
    case of mere implementation or execution of the said Manisana Award. Since in <\/p>\n
    fact   industrial   dispute   existed   in   this   case,   Division   Bench   found   that   the <\/p>\n
    conciliation officer could not have refused to admit it in conciliation.  In facts <\/p>\n
    before   me   entitlement   of   petitioners   to   permanency   only   with   consequential <\/p>\n
    benefits  has   been  declared.   That  may  only   entitle   them  to   benefits   of   these <\/p>\n
    awards but then their placement in particular category or class qua the service <\/p>\n
    conditions as working journalists in relation to respondent newspaper needs to <\/p>\n
    determined.  It is not the case where employer has fixed them in particular scale <\/p>\n
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\n                                          19<\/span><\/p>\n
    in purported extension of these awards and a wrong implementation is only <\/p>\n
    under   attack.   The   case   of   petitioners   is   of   total   non-implementation   and   of <\/p>\n
    continuous nature. Failure to extend the award does constitute an unfair labour <\/p>\n
    practice under item 9 of Sch. IV of MRTU Act.\n<\/p>\n
    9.            Whether in this situation S. 50 of MRTU Act offers a remedy ? In <\/p>\n
    2004 I CLR 145– Vaibhav Laxman Suravkar vs. Ultra Drytech Engineering Ltd.<\/a>\n<\/p>\n
    relied on by the petitioners,  the grievance was of non-compliance of the order <\/p>\n
    of   Industrial   Court   directing   the   respondents   to   pay   the   wages   to   the <\/p>\n
    complainants. He filed application u\/s 50 before Industrial Court for issuance of <\/p>\n
    a recovery certificate   & employer contended that application u\/s 50 was not <\/p>\n
    maintainable   as   the   exact   amount   be   payable   is   not   reflected   in   the   order.\n<\/p>\n
    Entitlement of the workmen was not in dispute, period and amount of wages <\/p>\n
    was also not in dispute and what remained was a simple arithmetic calculation.\n<\/p>\n
    Learned   Single   Judge   held   that   the   Industrial   Court   erred   in   holding   that <\/p>\n
    provisions of section 50 would not be attracted.  A comparison of the  S. 33C-2-\n<\/p>\n
    and   S.  50    undertaken there     demonstrated  the  difference   between the  two <\/p>\n
    provisions.   S.   50   applies  where   the   money   is  due   to   the   employee   from  an <\/p>\n
    employer under an order passed by the Court under Chapter VI of the State Act <\/p>\n
    while   Section     33C(1)   deals   with   a   situation   where   the   money   due   to   an <\/p>\n
    employee     is   under   a   settlement,   award   or   under   Chapter   VA   or   VB   of   the <\/p>\n
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\n                                           20<\/span><\/p>\n
    Central   Act.   The   industrial   court   had   noted   in   its   order   that   there   was   no <\/p>\n
    effective challenge to the statement of computation which had been submitted <\/p>\n
    on behalf of the workmen. The amount was not disputed, nor was the mode of <\/p>\n
    calculation in dispute, The workmen had, not approached the industrial court in <\/p>\n
    proceedings under Section 50 for  an adjudication of  their entitlement. Their <\/p>\n
    entitlement had already been adjudicated upon in the order of 22nd June, 2001 <\/p>\n
    passed in the complaint of unfair labour practices which was affirmed by this <\/p>\n
    Court. This Court held that all that remained to be done was a simple arithmetic <\/p>\n
    calculation. This court also noted that Section  50 is pari materia with Section <\/p>\n
    33-C(1) of the Industrial Disputes Act, 1947, save and except that (i) under the <\/p>\n
    former the amount due is pursuant to an order of the Court under Chap. VI <\/p>\n
    while under the latter it is under a settlement award or under Chapter VA or VB <\/p>\n
    and (ii) under the former the computation is done by the labour court while <\/p>\n
    under the latter by the appropriate government. These two differences are held <\/p>\n
    not to restrict the scope of Section 50 in comparison with Section   33C(1) or <\/p>\n
    indicated that a Labour Court under Section   50 has a lesser power   than the <\/p>\n
    appropriate government. An arithmetical exercise is held no more alien to the <\/p>\n
    court under Section  50 than it is to the appropriate government under Section <\/p>\n
    33C(1).    Following observations in para 16 are important here:–\n<\/p>\n
                “16. Now, there can be no dispute about the principle that
\n                under Section 50, it would not be open to the Labour Court  <\/p>\n
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\n                                 21<\/span><\/p>\n
      or the Industrial Court to adjudicate upon an entitlement  <\/p>\n
      for the first time and the statement of law in the judgment  <\/p>\n
      in   Ramanathan’s   case   (supra)   is   correct   so   far   as   it
\n      reiterates   that   position.   Ramanathan’s   case   does   not   lay
\n      down   a   wider   principle   and   indeed,   it   cannot   be   so  <\/p>\n
      construed   having   regard   to   the   law   laid   down   by   the
\n      Supreme   Court.   Section   50   refers   to   a   situation   where
\n      money is due to an employee from an employer under an
\n      order   passed   by   the   Court   under   Chapter   VI.   If   the  <\/p>\n
      entitlement of the employees has already been adjudicated  <\/p>\n
      upon  and  a  simple  arithmetical calculation  is  all that  is
\n      required to be made, the workmen are entitled to move the  <\/p>\n
      Industrial Court under Section 50.  The  workman do not
\n      forsake their remedy under Section 50 merely because an
\n      arithmetical   calculation   is   still   to   be   made   and   was   not  <\/p>\n
      made in the order of which enforcement is sought. To hold
\n      that   Section   50   would   not   apply   merely   because   in   the  <\/p>\n
      original  order   of  the   Labour   or   Industrial Court,  a  final
\n      computation   has   not   been   made   would   be   to  render   the  <\/p>\n
      salutary   provision   of   Section   50   nugatory.   Such   an
\n      interpretation   cannot   be   adopted   particularly   since   it   is
\n      contrary   to   the   plain   terms   of   Section   50   and   the
\n      interpretation placed on a similar provision by the Supreme  <\/p>\n
      Court. To recapitulate, therefore, the provision of Section
\n      50 of the Act can be availed of in a case such as the present
\n      where   the   entitlement  of  the   workmen   is  not  in  dispute,
\n      where the period for which wages had to be paid was not in
\n      dispute, where the amount of wages is not in dispute and  <\/p>\n
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\n                                          22<\/span><\/p>\n
             the   only   surviving   question   in   that   regard   was   an  <\/p>\n
             arithmetical calculation of the amount due and payable.”\n<\/p>\n
    10.         In judgment in LPA reported at 2005(1) Mah.L.J. 279- Ultra Drytech <\/p>\n
    Engineering Ltd vs. Vaibhav Laxman Suravkar<\/a>   against the above judgment the <\/p>\n
    Division Bench of this Court has maintained this view and I find its following <\/p>\n
    observations important :–\n<\/p>\n
              “The legislative intention disclosed by sections 33-C(1) and
\n              33-C(2) is fairly clear. Under section 33-C(1) where any  <\/p>\n
              money  is  due  to  a workman  from  an  employer   under  a
\n              settlement or an award or under the provisions of Chapter
\n              V-A, the workman himself, or any other person authorised  <\/p>\n
              by him in writing in that behalf, may make an application
\n              to the appropriate Government to recover the money due to  <\/p>\n
              him. Where the workman who is entitled to receive from
\n              the employer any money or any benefit which is capable of
\n              being computed in terms of money, applies in that behalf  <\/p>\n
              the   Labour  Court  may   under   section  33-C(2)  decide   the
\n              questions arising as to the amount of money due or as to
\n              the   amount   at   which   such   benefit   shall   be   computed.  <\/p><\/blockquote>\n
              Section   33-C(2)   is   wider   than   section   33-C(1).   Matters
\n              which do not fall within the terms of section 33-C(1) may,
\n              if   the   workman   is   shown   to   be   entitled   to   receive   the
\n              benefits,   fall   within   the   terms   of   section   33-C(2).   If   the
\n              liability   arises   from   an   award,   settlement   or   under   the  <\/p>\n
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\n                                 23<\/span><\/p>\n
      provisions of Chapter V-A, or by virtue of a statute or a  <\/p>\n
      scheme made thereunder, mere denial by the employer may  <\/p>\n
      not be sufficient to negative  the  claim under section 33-
\n      C(2) before the Labour Court. Where however the right to
\n      retrenchment compensation which is the foundation of the  <\/p>\n
      claim   is   itself   a   matter   which   is   exclusively   within   the
\n      competence   of   the   Industrial   Tribunal   to   be   adjudicated
\n      upon   a   reference,   it  would   be   straining   the   language   of
\n      section   33-C(2)   to   hold   that   the   question   whether   there  <\/p>\n
      has   been   retrenchment   may   be   decided   by   the   Labour  <\/p>\n
      Court.\n<\/p>\n
      15.            The aforesaid three judgments of the Supreme
\n      Court of India though considers the provisions of section
\n      33-C(1) but as we have indicated above, the same are in <\/p>\n
      pari materia with section 50 of the M.R.T.U. and P.U.L.P.
\n      Act, 1971 and therefore the law laid down by the Supreme  <\/p>\n
      Court   in   the   aforesaid   cases   will   apply   with   equal   force
\n      while construing the provision of section 50 of the MRTU  <\/p>\n
      and   PULP   Act,   1971.   Apart   therefrom,   the   aforesaid
\n      judgments, in the case of U.P. Electric Supply Co. Ltd., vs.
\n      R. K. Shukla and<\/a> another, etc., the Supreme  Court itself
\n      has compared the provisions of section 33-C (1) and (2)  <\/p>\n
      with section 6-H of the U.P. Industrial Disputes Act and has
\n      come to the conclusion that under section 6-H of the U.P.
\n      Industrial Disputes Act an amount can be computed and
\n      the necessary relief can be granted by the Industrial Court.
\n      In   our   view   thus   the   comparison   of   section   50   of   the  <\/p>\n
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\n                                          24<\/span><\/p>\n
                M.R.T.U.   and   P.U.L.P.   Act,   1971   with   the   provisions   of  <\/p>\n
                section   33C(1)   leaves   no   manner   of   doubt   that   the  <\/p>\n
                jurisdiction   of   the   Industrial   Court   under   section   50
\n                permits   simple   arithmetic   calculation   for   the   purpose   of
\n                granting  effective   relief to the   party.  Undoubtedly,  under  <\/p>\n
                section   50   of   the   M.R.T.U.   and   P.U.L.P.   Act,   1971   the
\n                authorities   are   not   empowered   to   determine   the   rights
\n                between the parties but once the rights are determined by
\n                an adjudication then, it is open to the Industrial Court to  <\/p>\n
                grant relief under section 50 of the M.R.T.U. and P.U.L.P.\n<\/p>\n
                Act,   1971   even   though   under   the   said   section   it   possess
\n                only executory jurisdiction.  We are also of the view that  <\/p>\n
                section 50 of MRTU and PULP Act, 1971 is provided with a
\n                view to enable a party to have recourse to an expeditious
\n                remedy. We are therefore of the view that we must prefer  <\/p>\n
                an   interpretation   which   advances   the   object   of   the   Act
\n                rather than defeat the same.”\n<\/p>\n
    11.           The remedy under Section   50 of MRTU Act is available only to <\/p>\n
    recover the past dues. Compensation or interest sought by the petitioners as <\/p>\n
    penalty   for   their   victimization   can  not   be   allowed   thereunder.   Moreover   the <\/p>\n
    classification   of   respondent   establishment   is   also   not   possible   under   it.   The <\/p>\n
    respondent   has   not   expressly   accepted   the   calculations   of   petitioners   and   it <\/p>\n
    appeared form arguments that dispute about classification of newspaper is also <\/p>\n
    yet not finally settled. Thus entitlement of petitioners to an ascertained sum is <\/p>\n
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\n                                          25<\/span><\/p>\n
    possible   only   after   proper   classification   and     their   fixation   in   relevant   wage <\/p>\n
    structure. Thereafter only the question of simple arithmetical exercise will arise <\/p>\n
    and not till then. When jurisdiction under Section 50 of  MRTU  Act is narrower <\/p>\n
    than one under Section 33-C-2 of Industrial Disputes Act, it follows that dispute <\/p>\n
    as to entitlement under a particular Award is cognizable only under item 9 of <\/p>\n
    Schedule IV thereof. Partial implementation or the wrong implementation are <\/p>\n
    the   facets   of   same   unfair   labour   practice   viz.   failure   to   implement   award, <\/p>\n
    settlement or agreement under item 9.   The learned member of the Industrial <\/p>\n
    Court is therefore   in error in holding that the entitlement of petitioners i.e., <\/p>\n
    Complainants before it was completely adjudicated and  only simple calculations <\/p>\n
    were to be performed. It also overlooked the fact that the benefits of award can <\/p>\n
    be   declined   to   even   a   permanent   or   regularized   workman   or   there   may   be <\/p>\n
    complaints of incomplete or wrong implementation   and victim   has to invoke <\/p>\n
    jurisdiction under Section  28 r\/w  item 9 of Schedule  IV of MRTU Act. He can <\/p>\n
    not seek declaration & direction under Section  50 in that respect. Observations <\/p>\n
    of the Hon’ble Apex Court in  Rajasthan State Road Transport Corp. vs. Zakir <\/p>\n
    Hussain<\/a> (supra) to buttress the contention that when Act creates an obligation <\/p>\n
    and enforces the performance in a specified manner, said performance can not <\/p>\n
    be enforced in any other manner is therefore is not relevant here. Hon’ble  Apex <\/p>\n
    Court has made those observations while holding that a civil suit challenging <\/p>\n
    termination by a daily wage conductor was not tenable because of Industrial <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:42:38 :::<\/span>
\n                                          26<\/span><\/p>\n
    Disputes Act.\n<\/p>\n
    12.           Section     50   of   MRTU  ACT   enables   recovery   of   money   due   from <\/p>\n
    employer but that application is required to be moved within one year from the <\/p>\n
    date on which it became due.   If the Court finds that application could not be <\/p>\n
    moved within one year for sufficient cause, it can entertain it even after said one <\/p>\n
    year. Section   28 thereof enables the victim of unfair labour practice to move <\/p>\n
    Labour   or   Industrial   Court   within   90   days   of   the   occurrence   of   such   unfair <\/p>\n
    labour   practice.   If   good   and     sufficient   reasons   are   shown,   the   Court   can <\/p>\n
    entertain a complaint filed after said period of 90 days also. Here it is already <\/p>\n
    found that recourse to   Section   50 of MRTU Act is not possible. In  Shankar <\/p>\n
    Mahadeo   Charpe   vs.   S.S.H.   Quazi<\/a>  –   1984   Lab.I.C.   948,   relied   upon   by   the <\/p>\n
    petitioners the learned Single Judge of this Court has held that the filing of <\/p>\n
    application for condonation of delay along with belated ULP Complaint as per <\/p>\n
    regulation 101  of the Industrial Court Regulations, 1975 framed under MRTU <\/p>\n
    Act   is   not   mandatory.   In   1984   Lab.I.C.   1721–Regional   Manager,   MSRTC, <\/p>\n
    Nagpur   vs.   Regional   Secretary,   MSRT   Kamgar   Saghatana,   relied   upon   by <\/p>\n
    petitioners, the Division Bench of this Court held that failure to implement a <\/p>\n
    settlement includes even a partial failure to implement a particular term of the <\/p>\n
    settlement.   The   settlement   gave   assurance   of   absorption   to     employees   and <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:42:38 :::<\/span>
\n                                          27<\/span><\/p>\n
    Division Bench has observed that the employees had no other remedy but to <\/p>\n
    invoke item 9 of Sch. IV to enforce that right. The right is held to be enforceable <\/p>\n
    so long as the settlement remains in force and binding on parties. Language of S.\n<\/p>\n
    30 of MRTU Act is looked into in paragraph 9 to note that it contemplated two <\/p>\n
    types of occurrences of unfair labour practice. The word “has engaged in” is <\/p>\n
    found to contemplate occurrence of unfair labour practice once for all and only <\/p>\n
    the effect continues to flow therefrom. The other phrase “is engaging in”  is held <\/p>\n
    to   denote   occurrence   of   unfair   labour   practice     which   is   of   continuing   or <\/p>\n
    recurring nature. The relief claimed by complainants there was found to be in <\/p>\n
    relation   to   unfair   labour   practice   of   recurring   nature   and   that   unfair   labour <\/p>\n
    practice   was  found  to  recur  so  long  as    the  relevant  term of  the  settlement <\/p>\n
    remained un-implemented. It relies upon the   Full Bench judgment of Hon’ble <\/p>\n
    Gujrat High Court in AIR 1977 Guj 37 “Textile Labour Association v. Ashok Mills”\n<\/p>\n
    on  Bombay Industrial Relations Act (11 of 1947), Section  79 (as amended in <\/p>\n
    1966) and  Section  46(5). Hon’ble Gujrat High Court holds that limitation bars <\/p>\n
    only a remedy but does not extinguish the right. In any industrial context so <\/p>\n
    long as an illegal change was continued and recurring month to month, the <\/p>\n
    Legislature   could   never   have   intended   to   deny   the   peaceful   remedy   in   civil <\/p>\n
    jurisdiction to the affected employee so that the illegal change can be obliterated <\/p>\n
    and original industrial conditions in important matters in Schedule II would be <\/p>\n
    restored by the Labour Court. Said High Court held that in the cases of wage <\/p>\n
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\n                                            28<\/span><\/p>\n
    award or payments of the amenities month to month, the question of making an <\/p>\n
    illegal change would arise every month, when the wages in the sense of basic <\/p>\n
    wages or value of amenities would be refused by the employer. The employer <\/p>\n
    can choose to withdraw that illegal change even voluntarily at any time and <\/p>\n
    then there would be no grievance. It is only when the employer would persist in <\/p>\n
    his illegal change that the employees would have to resort to the Labour Court <\/p>\n
    for getting a decision about the illegal change and an order of its withdrawal.\n<\/p>\n
    Therefore, in the context of such recurring obligations, the term making of an <\/p>\n
    illegal change could never have same meaning of change made once for all so <\/p>\n
    that what continues is only its effect in the context of such recurring obligations <\/p>\n
    to pay month to month the wages or value of such amenities. The illegal change <\/p>\n
    would be made afresh every month when the employer refuses to carry out that <\/p>\n
    continuous obligation. In MSRTC Vs. Premlal Gajbhiye–2003 (4) Mah.L.J. 1025, <\/p>\n
    Full   Bench  of  this High  Court  relied  upon this  Division  Bench  and  also   Full <\/p>\n
    Bench of Gujrath and concluded that “27.In the case in hand as already observed  <\/p>\n
    above, the unfair labour practice by the appellants in continuing the denial of the  <\/p>\n
    benefits under Clause 49 of 1956 settlement to the respondents is of recurring  <\/p>\n
    nature and till and until such benefits are given, it will continue to recur and,  <\/p>\n
    therefore,   there   is   no   substance   in   the   contention   of   the   appellants   that   the  <\/p>\n
    complaints were barred by Law of Limitation.”\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:42:38 :::<\/span>
\n                                           29<\/span><\/p>\n
    13.            Perusal of ULP Complainants as filed here shows that in paragraph <\/p>\n
    19   it   is   pleaded   that   after   High   Court   judgment   dated   10\/10\/2008   it   was <\/p>\n
    necessary to wait to find out whether it is further challenged and there is prayer <\/p>\n
    to condone the delay, if any. Without prejudice, it is also pointed out that non <\/p>\n
    payment of wages as per the applicable Awards is a continuing wrong and hence <\/p>\n
    no   limitation  applied.   It   is   apparent   that   looking   to   the   nature   of   grievance <\/p>\n
    made,   the   cause   is   continuing   one   and   hence,   bar   of   limitation   was\/is   not <\/p>\n
    attracted at all.   Even assuming that the complaints were barred by limitation, <\/p>\n
    as held by the Industrial Court,  it ought to have given an opportunity to them <\/p>\n
    for explaining the delay.  Admittedly no such opportunity is given to the present <\/p>\n
    petitioners.   The complaints as filed are not   barred by limitation at all. The <\/p>\n
    finding   of   Industrial   Court   in   that   respect   is   therefore   not   sustainable   and <\/p>\n
    deserves to be quashed & set aside.\n<\/p>\n
    14.            The Complainants are complaining of   failure on part of employer <\/p>\n
    respondent   to   extend   to   them  the   service   conditions   as  per   award   and   that <\/p>\n
    grievance is squarely covered only under item 9 of Schedule IV of the MRTU Act.\n<\/p>\n
    Necessary   declaration   of   indulgence   in   unfair   labour   practice,   direction   to <\/p>\n
    withdraw   it   with   appropriate   positive   direction   are   all   possible   only   in   ULP <\/p>\n
    Complaint under Section  28 r\/w S.30 thereof. Prayers made and  relief sought <\/p>\n
    by  present  petitioners is not envisaged under  Section   50.   In  any case,   in <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:42:38 :::<\/span>
\n                                            30<\/span><\/p>\n
    present set of facts particularly when recourse was to welfare provisions and <\/p>\n
    non-receipt of  wages or benefits as per Awards in force was not in dispute (as <\/p>\n
    defence of the employer was only of arithmetical calculations), the Industrial <\/p>\n
    Court could not have refused to exercise narrower jurisdiction U\/S 50 of the <\/p>\n
    MRTU Act found available by it as its larger jurisdiction U\/S 28 r\/w Section  30 <\/p>\n
    was  already  invoked.  Dismissal  of the  ULP Complainants themselves  in  such <\/p>\n
    situation on such technical ground was not at all warranted. Even if its view on <\/p>\n
    the controversy is presumed to be correct, still it should have seen that it was <\/p>\n
    open to it to grant relief under appropriate jurisdiction and it was duty bound <\/p>\n
    to exercise that jurisdiction in the interest of weaker section of the society.\n<\/p>\n
    15.            Thus the common orders dated 21\/7\/2009 passed below Exh. 2 and <\/p>\n
    12 by the Industrial Court at Nagpur in ULP Complaints 209 to 215 of 2009  are <\/p>\n
    quashed and  set aside. Application at Exh. 12 filed by the respondent employer <\/p>\n
    in   all   matters   for   their   dismissal   are   rejected.       Said   ULP   Complainants   are <\/p>\n
    restored   back   to   file   for   further   consideration   as   per   law.   Writ   petitions   are <\/p>\n
    accordingly allowed. But in  the  circumstances of  the  case, there shall  be no <\/p>\n
    order as to costs.\n<\/p>\n
                                                                                JUDGE<\/p>\n
    dragon <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:42:38 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sanjay Shalikram Ingle vs M\/S. Lokmat on 12 March, 2010 Bench: B. P. Dharmadhikari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No.4816, 4792, 4802, 4904, 5080, 5085 & 5152 OF 2009. ——- WRIT PETITION No. 4816\/2009. Sanjay Shalikram Ingle, Vasant Nagar, June Babhulkheda, Nagpur – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-10025","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSanjay Shalikram Ingle vs M\/S. 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