JUDGMENT
K. Balakrishnan Nair, J.
1. The petitioner which is a Co-operative Society has approached this Court
challenging Ext. P4 award of the Labour Court, Ernakulam dated 29.2.2000. The
brief facts of the case are the following:
2. The Government by Ext. P1 order referred the dispute between the petitioner
Co-operative Society and the second respondent Union representing the casual workers
under the petitioner for adjudication by the Labour Court, Ernakulam. The dispute
referred by Ext. P1 order dated 22.9.1994 was the following:-
“Whether the denial of employment to S/s. K.K. Mohanan, 2. N.M. Manoj Kumar,
3. V.C. Chandrasekharan 4. Subramanian N.A., 5. C.D. Deleep, 6. N. Lalu, 7. Rajeev N.R.
8. E.P. Somasekharan, 9. K.K. Ashokan, 10. K. Jayan and 11. Madhavan K.K. are legal or not (2)
If it is illegal, what should be the remedy entitled to the above casual workers.”
3. Before the Labour Court, the second respondent Union filed a claim statement
on behalf of the workmen. In the said statement it is contended as follows: The
workmen have continuous and uninterrupted service from 20.7.1990 and they were
being paid daily wages at the rate of Rs. 35/- per day. When the union represented for
extending the various statutory benefits, such as, E.S.I., Provident Fund, Bonus etc.
the workmen were denied employment from 30.12.1991 in an arbitrary fashion. Even
though they were called casual workers, they have continuous employment for about
two years. Therefore, denial of employment to them will amount to retrenchment.
As the statutory requirements for the same have not been complied with, they should
be declared to be continuing in service. It is also pleade that all along the management
was directly paying the wages to the workers. They were working as plant attenders
in different shifts. They were paid wages by individual vouchers. Apart from that,
the management was procuring vouchers from one of the workmen separately to
make it appear that he was a contractor providing the workmen. This was to deny the
statutory benefits. The management filed Ext. P3 written statement contending that
there was no employer – employee relationship between the causal workers and the
management. According to the petitioner management, the workmen were engaged
on daily wage basis through a contractor. Being a Co-operative Society, the staff
pattern is the one sanctioned by the Joint Registrar, Dairy and at present there are no
vacancies in the post of plant attender. From the side of the management, no witness
was examined, nor any document produced. From the side of the workmen, one of
the workmen was examined as WW1 and two documents were produced. The witness
of the workmen was not cross-examined by the management. On the basis of the
evidence before it, the Labour Court found that the workmen were having continuous
service of more than two years and there is denial of employment in violation of Section 25F of
the Industrial Disputes Act. Consequential orders were passed by the Labour Court
directing the management to reinstate all the eleven workmen with continuity of service,
backwages and other attendant benefits.
4. The learned counsel for the management attacked the award only on one
ground i.e. the petitioner did not get a proper opportunity to cross-examine the witness
of the workmen and to tender evidence from its side. Blame is put on the counsel who
appeared for the petitioner before the Labour Court. It is also urged that it s a settled
position in law that the client shall not suffer owing to the laches from the part of the
counsel. Therefore, prayer was made for a remand of the case, so that the petitioner
could adduce its evidence properly before the Labour Court.
5. The counsel for the second respondent union strongly opposed the suggestion
for remand. As the denial of employment took place about ten years ago, a further
remand would seriously prejudice the workmen. It is also pointed out that there was
appearance of the counsel for the petitioner all throughout before the Labour Court
and the management was not set ex parte.
6. It is true that this Court as well as the Apex Court has held in certain cases
relating to setting aside ex parte and condonation of delay that the client may not
suffer owing to the fault of his counsel. But the same cannot be extended to every
case of alleged default from the part of the counsel. Here, the default can be that of
the management also in not properly instructing the counsel in time for the conduct of
the case.
7. On the basis of the evidence on record, the finding of the Labour Court cannot
be set to be perverse or illegal. No attempt was made to say so by the counsel. Even
though it is pleaded in the Original Petition that the management was not afforded a
fair opportunity to present its case and thereby the Tribunal violated the principles of
natural justice, what was urged before me, as stated earlier is regarding the alleged
failure from the part of the counsel for conduct the case properly. I feel such a ground
cannot be permitted to be raised in these proceedings. If it is permitted, this Court will
be adding one more head to the woes of the ordinary litigant. It will put a further
burden on him to ensure that his opposing counsel is conducting the case properly for
his opponent. Otherwise, the judgment in his favour will be set aside on the ground of
laches of that counsel. It is true, in criminal cases, the English and American Courts
have recognised the flagrantly incompetent advocacy of the defence lawyer may
result in denial of fair trial rendering the conviction invalid (see the decisions in R. v.
Ensor (1989 (1) WLR 497 – Court of Appeal) and Strickland v. Washington
(466 US 668 – U.S. Supreme Court). But in ordinary civil litigations, no such concept
has been evolved. Therefore, I am not inclined to accept the contention put forward
on behalf of the petitioner.
8. However, it is made clear that the workmen need be reinstated as casual
workers. The back wages need be paid taking into account the average amount
received by them for a period of one year immediately preceding the date of denial of
employment. It is also made clear that in case the petitioner does not require the
service of the casual workers, they can be retrenched from service following the
procedure prescribed under law. In other words, the award of the Labour Court need
not be taken as a direction for regularisation of service of the casual workmen. It is
only a direction to restore status quo ante as on the date of denial of employment.
9. With the above clarifications, the Original Petition is disposed of.