IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2010
CORAM:
THE HONBLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.4065 of 2008 &
M.P.No.1 of 2008
1. Lalitha
2. Seetharaman
3. Elangovan ... Petitioners
-vs-
1. The Presiding Officer
Labour Court,
Cuddalore.
2. K.Menmai Jothi
3. The Tahsildar,
Thirukkoyilur
Villupuram District. ... Respondents
Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified mandamus to call for the records of the proceedings of the first respondent made in I.A.No.76/2007 in C.P.No.4 of 2004 dated 5.1.2008 and to direct the first respondent to decide the I.A.No.76 of 2007 in C.P.No.4 of 2004 on merits.
For Petitioner : Mr.M.C.Swamy
For Respondents : Mr.N.Thiagarajan R2
Mr.V.Srikanth, AGP - R3
******
O R D E R
The prayer in the Writ Petition is for issuance of a writ of certiorarified mandamus to quash the order passed by the Labour Court, Cuddalore, in I.A.No. 76 of 2007 in C.P.No.4 of 2004 dated 5.1.2008 and direct the Labour Court to decide I.A.No.76 of 2007 on merits.
2.The petitioners are legal heirs of one late Ramasamy. The second respondent who is the wife of late Kuppuswamy filed a Petition under section 33(c)(2) of the Industrial Disputes Act,1947 in C.P.No.4 of 2007 for computation of wages payable to her late husband to the tune of Rs.1,52,060/-. The case of the claimant was that her husband joined twenty years ago in the service of Ramasamy as Tractor Cleaner and after five years of service he was made as a Tractor Driver and was discharging his duties to the fullest satisfaction of his employer. The driving licence of late Kuppuswamy was kept by Ramasamy and since the said Ramasamy died during May 2003, the claimant through his counsel sent a legal notice to the petitioners herein on 29.5.2003 claiming wages. The petitioners sent a reply notice on 14.6.2003 through their Lawyer. In the above circumstances, the Computation Petition was filed by the second respondent to compute the wages.
3.It appears that though the petitioners herein who were the respondents in C.P.No.4 of 2004 were served notice, they failed to appear before the Labour Court and were set exparte. Thereafter, the Labour Court framed a question as to whether the claimant is entitled for computation of wages as prayed for. The claimant examined herself and one Velusamy as witnesses and marked 15 documents as Exs.C1 to C15. The Labour Court on consideration of the oral and documentary evidence available on record held that the second respondent is entitled to a sum of Rs.66,000/- as wages payable to her late husband Kuppusamy together with 6% interest per annum.
4.Thus, it is seen that the petitioners herein were aware of the claim made by the second respondent since for the legal notice sent by the second respondent dated 29.5.2003, the petitioners sent a reply through their lawyer on 14.6.2003. Despite being aware of the subject matter and though notices were served on them from the Labour Court, they failed to appear before the Labour Court. Subsequently the petitioners filed I.A.No.76 of 2007 for condonation of delay of 950 days in filing the Application for setting aside the exparte order passed by the Labour Court. In the affidavit filed in support of the petition it was contended that Ramasamy Naidu died during 2003 and on 22.4.2007, a notice was received from the Office of the Tahsildar, Thirukkoilur, on receiving the same, they contacted their Advocate in Cuddalore, then they became aware of the fact that an exparte order was passed by the Labour Court in C.P.No.4 of 2004 on 28.9.2004, that no summons were served on them in the said C.P.No.4 of 2004, the legal notice was sent only to their father and their father only sent a reply notice, they pleaded ignorance of the entire matter and prayed for condonation of delay.
5.The second respondent resisted the Application by filing a counter inter alia contending that the petitioners despite being aware of the proceedings did not appear for nearly 12 adjournments and therefore the Labour Court sent a final notice fixing the date of hearing as 6.2.2004 and despite receipt of the notice indicating the date of hearing, they were grossly negligent and did not appear before the Court. Only, thereafter the speaking order was passed by the Labour Court, the Execution Proceedings were pending for 2 = years and to deny the knowledge of Execution Proceedings is absolute falsehood and therefore the second respondent prayed that the discretion of the Court should not be exercised in favour of the petitioners. The Labour Court by the impugned order dated 5.1.2008 dismissed I.A.No.76 of 2007 and challenging the said order, the petitioners are before this Court.
6.The learned counsel for the petitioners would strenuously contend that the order of the Labour Court suffers from serious irregularities besides error apparent on the face of the record and that the second respondent has failed to prove with any documents to show that the summons were served on the petitioners. Further it is contended that there is no employer employee relationship between the petitioners’ father and the husband of the second respondent and the Petition filed under section 33(c) of the Act is not maintainable. The learned counsel for the petitioners would further contend that this Court should adopt a pragmatic approach and condone the delay in filing the Application.
7.In support of his contentions, the learned counsel referred to the following decisions :
1.(2009) 4 CTC 722 [S.JANAMI V.SWETHA ASSOCIATES AND OTHERS] 2.2002 (3) CTC 411 [UNION OF INDIA REP. BY THE CHIEF COMMISSIONER OF INCOME TAX (ADMN) CHENNAI AND ANOTHER V. THE REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL, CHENNAI BENCH AND ANOTHER] 3.2008 (1) CTC 785 [RAVI ENTERPRISES REP. BY ITS PARTNER AND OTHERS V.INDIAN BANK AND OTHERS] 4.2005 (5) CTC 433 [K.SHANKAR Vs. THE ORIENTAL INSURANCE COMPANY LTD., AND OTHERS] 5.2009 (5) CTC 414 [PAYAMMAL AND ANOTHER V. S.N.CHOCKALINGAM AND OTHERS ] 6.(1998) 7 SCC 123 [N.BALAKRISHNAN V.M.KRISHNAMURTHY]
8.The learned counsel for the second respondents on the other hand would contend that there is absolutely no error in the order passed by the Labour Court, since the Labour Court came to a conclusion that the action of the petitioners was deliberate and the claimant is a poorly paid person and has been driven from pillar to post from 2004, when wages were computed by the Labour Court. It is submitted that it is not as if the petitioners were not aware of the subject issue since the second respondent has sent legal notice to the petitioners on 29.5.2003 and on receipt of the same, the petitioners through their counsel has sent a reply notice dated 14.6.2003. Therefore it is contended that the petitioners’ have filed a false affidavit before the Labour Court denying knowledge about the entire matter. On the above grounds, the learned counsel prays for dismissal of the Writ Petition.
9.I have carefully considered the submissions made by the learned counsel appearing on either side and perused the materials available on record.
10.From the Judgments relied on by the learned counsel for the petitioners, it could be culled out that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice may be defeated and when delay is condoned all that can happen is that the matter will be decided on merits and that when substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preserved and there is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of malafides. The Court while refusing to condone the delay may foreclose the litigant from putforthing his case. Therefore, the decisions referred above have held that the Court should adopt a pragmatic approach in matters regarding condonation of delay and the length of delay is immaterial. Further, this Court has held by following the decisions of the Hon’ble Supreme Court that when the Court condones the delay, it should also keep in mind the cost of litigation expenses incurred by the opposite party.
11.It cannot be disputed that the power under section 5 of the Limitation Act is a matter of discretion of the Court. The length of delay is no matter and acceptability of the explanation is the only criteria and as held by the Hon’ble Supreme Court in the case of N.BALAKRISHNAN, referred supra, their Lordships observed that sometimes the delay of shortest length may be uncondonable due to want of acceptable explanation, whereas in certain other cases very long length of delay can be condoned as the explanation is satisfactory. Further, their Lordships held that if the explanation does not smack of malafides or it is not putforth as a part of dilatory strategy, the Court must show utmost consideration to the litigation expenses. Thus the question as to whether the petitioners have shown sufficient cause for condonation of delay is a question of fact and there cannot be a straight jacket formula for the purpose of condonation of delay. Whether the reasons are acceptable and whether there was any deliberate attempt to delay the proceedings, have to be decided based on facts.
12.By the impugned order, the Labour Court refused to exercise its discretion. It has held that despite the service of notice and the matter having stood adjourned for more than 12 occasions, the petitioners did not choose to appear before the Labour Court and this was held to be a deliberate attempt to delay the proceedings, that there is total lack of bonafide and that since the petitioners are likely to face attachment, they have immediately approached the Court with the petition to condone the delay in setting aside the exparte order.
13.The Labour Court thus concluded that there was no reasonable explanation for the delay and there was no bonafide on the part of the petitioners. A perusal of the affidavit and counter filed in the Interlocutory Application reveals that the petitioners were not aware of the proceedings and notice was served by the Labour Court. What has been pleaded by the petitioners before the Labour Court is absolutely ignorance of the entire proceedings. Apart from that no dates have been given and not other reason is forthcoming as to why the delay has occurred. From the perusal of the typed set of documents filed along with the Writ Petition would prove that the affidavit filed by the petitioners appears to be factually incorrect. The petitioners herein were aware of the claim made by the second respondent, since the second respondent had issued a legal notice on 29.5.2003 and on receipt of the legal notice, the petitioners through their Lawyer sent a reply notice dated 14.6.2003. Therefore, it is incorrect to state that the petitioners were totally unaware about the claim for wages.
14.Secondly, it has to be noted that in the counter affidavit filed in I.A.No.76 of 2004, the second respondent has specifically stated that though on receipt of summons, the petitioners did not appear on 9.1.2004, 6.2.2004, 5.3.2004, 2.4.2004, 7.5.2004, 4.6.2004, 9.6.2004, 29.6.2004 and 28.4.2004. Therefore for nearly 12 hearings, the petitioners failed to appear. Only thereafter, by setting them exparte, the Labour Court passed an order in C.P.No.4 of 2004 on 28.9.2004. Copy of the said order was produced by the learned counsel for the second respondent reveals that it is an order supported by reasons. The second respondent herein has proved her claim before the Labour Court by examining herself and another witnesses and by marking 15 documents as Exs. C1 to C15. Thus, it is not a non-speaking order, but an order setting out as to how the second respondent is entitled to the wages as computed. The Execution Proceedings is said to have been pending for 2 1/2 years and no action has been taken by the petitioners to approach the Labour Court to set aside the exparte decree.
15.Thus, considering the totality of the facts and circumstances of the case, I am of the clear view that there is no ground made out for interference with the order passed by the Labour Court which refused to exercise its discretion to condone the delay. The delay is more than three years and except for the bald averments made in the affidavit filed in support of the I.A., the petitioners were not able to substantiate any justifiable or acceptable reasons before the Labour Court. Thus, the Labour Court concluded that sufficient cause has not been shown and refused to exercise its discretion. I find no good reasons to interfere in such an order passed by the Labour Court.
16.Though the order passed by the Labour Court dated 28.9.2004 in C.P.No.4 of 2004 is termed as an exparte order, it is not a non-speaking order, but an order supported with reasons and as the claimant was able to prove her claim by placing oral and documentary evidence. Thus, considering the entire facts and circumstances of the case and taking note of the fact that the amount of wages which has been computed is only Rs.66,000/-, the computation was ordered on 28.9.2004 under section 33(c)(2) of the Act, the second respondent’s husband was a Tractor driver who was done to death and the second respondent was not able to realise the money for nearly six years, I find absolutely no justifiable reasons to interfere with the order passed by the Labour Court.
17.In the result, the Writ Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
13.09.2010
rpa
Index :Yes
Internet:Yes
To
1. The Presiding Officer
Labour Court,
Cuddalore.
2. The Tahsildar,
Thirukkoyilur
Villupuram District.
T.S.SIVAGNANAM J,
rpa
Order in
W.P.No.4065 of 2008
13.09.2010