IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/04/2006
CORAM
THE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA
C.R.P (PD) No.368 of 2005
and
C.R.P. (PD) No.369 of 2005
---
R.Kalimuthu .. Petitioner in both
the C.R.Ps.
-Vs-
The Management,
Marlboro Engineering Works,
No.613, Deepa Textiles Road,
Civil Aerodrome Post,
Coimbatore-641 014. .. Respondent in both
the C.R.Ps.
C.R.P. No.368 of 2005:
Civil Revision Petition filed under Article 227 of the Constitution of
India against the order dated 11.10.2004 passed in I.A. No.240 of 2004 in
C.P. No.470 of 2000 on the file of the Presiding Officer, Labour Court,
Coimbatore.
C.R.P. No.369 of 2005:
Civil Revision Petition filed under Article 227 of the Constitution of
India against the order dated 27.10.2004 passed in I.A. No.844 of 2004 in
C.P. No.470 of 2000 on the file of the Presiding Officer, Labour Court,
Coimbatore.
!For petitioners : Mr.S.Subbiah
^For respondent : Mr.John.Z.
for Mr.T.S.Gopalan
:O R D E R
The respondent is a small scale industry engaged in the manufacture
and marketing of pumpsets. It has a branch at Indore. The petitioner was
appointed as a Branch Manager at Indore Branch of the respondent’s concern.
The petitioner was the sole incharge of the Branch and he was looking after
the day to day administration. The duties of the petitioner were assigning
work to the sales and administrative staffs employed under him, supervising
their work and sanctioning leave etc. The petitioner was incharge of the
Branch cash transactions and he also used to prepare periodical statements,
debtors list and send the same to the respondent from time to time and also do
all incidental administrative work. He was holding a responsible post as a
Branch Manager, using the powers conferred on him. As there was some
complaint against the petitioner , the respondent required him to come to
Coimbatore for certain clarifications during May 2000. Because of some
misunderstanding, the petitioner left the service. Later, the petitioner
filed the said claim petition No.470 of 2000 before the Labour Court,
Coimbatore claiming a sum of Rs.1,14,525/- from the respondent. The
respondent filed a counter statement and opposed the claim of the petitioner.
The trial was commenced and the petitioner was put in the witness box. On
25.11.2002, the matter was posted for examining the respondent. The
respondent did not appear, but his counsel appeared before the Court and
reported no instruction. Specifically the case was posted on 25.11.2002 for
cross examining the respondent. As the respondent was absent, the Court was
of the view that he was not interested in defending the claim petition. Hence
the matter was set exparte, and allowed the claim petition filed by the
petitioner. The said fact came to the knowledge of the respondent only during
February 2004, when the recovery proceedings were initiated against the
respondent. Hence, the respondent filed I.A. No.240 of 2004 to condone the
delay of 444 days in filing the petition for setting aside the exparte order.
The petitioner filed its counter affidavit and opposed the said condonation
petition. By order dated 11.10.2004, the Presiding Officer of the Labour
Court, Coimbatore allowed the application. Later an application to set aside
the Exparte order was filed in I.A. No.844/2004. The petitioner also filed a
counter affidavit opposing the said application. The lower Court allowed the
said applications in I.A. No.240 of 2004 and I.A. No.844 of 2004 and also
directed the respondent for payment of an amount of Rs.1,000/- to the
petitioner. Later, the main case in C.P. No.470 of 2000 was restored to the
file of the Labour Court, Coimbatore. The petitioner filed the present
petition challenging the order of the Presiding Officer, Labour Court,
Coimbatore dated 11.10.2004 in I.A. No.240 of 2004 and dated 27 .10.2004 in
I.A. No.844 of 2004.
2. The learned counsel for the petitioner contended that the
Presiding Officer had completely erred in allowing the application filed by
the respondent for condoning the delay of 444 days in filing the application,
and set aside the order. He also further submitted that the lower Court had
over looked the material fact that whatever deposed by the respondent as
P.W.1, had not at all been set out in the affidavit filed in support of the
petition for the condonation of the delay as well as for setting aside the
exparte order. He also brought the notice of this Court that what was said in
the affidavit filed in support of both the application was that respondent was
represented by one Dhamodarasamy and that his consultant was following the
case, and that the respondent was solely looking after the total business
affairs and that the said Dhamodarasamy failed to follow up the case since
October 2002 and that he was of the opinion that the due intimation would be
given by the Advocate for appearance. It was also stated that whatever has
been said by the respondent ran contrary to the affidavit, obviously by taking
advantage of the death of the Advocate and to draw sympathy, such a new case
had been set up at the time of leading the evidence, contrary to the
allegations made by him in his affidavit and also he emphasised that the lowe
r Tribunal ought not to have taken into account the evidence of the respondent
as P.W.1 in as much as such an evidence was not based on the allegations made
in the affidavit and accordingly the lower Tribunal ought to have rejected the
entire contentions newly invented and improvised at the time of giving the
evidence , by taking advantage of the death of the Advocate. He further
stated that the lower Court ought to have noticed that the allegations as well
as evidences let in by the respondent are totally malafide and not of good
faith and as such on the discrepancies in the affidavit as well as in the
evidence, and accordingly, should have dismissed the petition.
3. The learned counsel for the respondent submitted that the
lower Court considered all the relevant materials and taken note of the
counsel’s prolonged illness and later, the counsel representing the
respondent, died. The said two facts were duly taken into consideration and
then only the lower Court condoned the delay and set aside the exparte order,
and the order of the lower Court is in accordance with law.
4. I heard both the counsel. I have seen the affidavits filed by
the respondent in both the I.As. The affidavit filed before the Labour Court
in I.A. No.240 of 2004 is as under:
“I, S.Krishnaswamy, S/o Sengaliappa Gounder, aged 43 years, residing at 69,
Poongothai Nagar, Aerodrome Post, Coimbatore-641 014, do hereby solemnly
affirm and state as follows:
1. That I am the Proprietor of the petitioner/respondent and I am well
aware of the facts and circumstances of the case.
2. The said C.P. was entrusted with an advocate to appear and prosecute
our case. One Mr.Damodharaswamy, our consultant was following the case. I as
proprietor of the petitioner/respondent, was solely looking after the total
business affairs. The said Dhamodaraswamy failed to follow up the case since
October 2002. I was of the opinion that due intimation would be given by the
advocate for my appearance. I was of the opinion that the case is pending as
the advocate did not communicate. I was also very busy with the business. I
came to know from a communication received from Government of Tamilnadu, on
24-02-2004, that the above C.P. has been disposed. Immediately I contacted
my advocate and came to know that my counsel has reported no instructions, and
that respondent has been set exparte and exparte order dated 25-11-2002 has
been passed.
3. I state that I approached the present counsel and sought them to take
steps to set aside the exparte order. Hence there is a delay of 444 days in
filing the application to set aside the exparte order dated 25-11-2002. The
non prosecution of the case leading to exparte order is neither wilful nor
wanton and highly inadvertent. We are having a fit and valid case, unless and
until the delay in filing the petition to set aside the exparte order is
condoned, we would be put to irreparable losses.
3. Hence it is humbly prayed that this Honourable Court may be pleased to
order condoning the delay of 444 days in filing the application to set aside
the exparte order dated 25-11-2004, and render justice.”
5. The affidavit filed before the Labour Court in I.A. No.844 of
200 4 is as under:
“I, S.Krishnaswamy, S/o Sengaliappa Gounder, aged 43 years, residing at 69,
Poongothai Nagar, Aerodrome Post, Coimbatore-641 014, do hereby solemnly
affirm and state as follows:
1. That I am the Proprietor of the petitioner/respondent and I am well
aware of the facts and circumstances of the case.
2. The said C.P. was entrusted with an advocate to appear and prosecute
our case. One Mr.Damodharaswamy, our consultant was following the case. I as
proprietor of the petitioner/respondent, was solely looking after the total
business affairs. The said Dhamodaraswamy failed to follow up the case since
October 2002. I was of the opinion that due intimation would be given by the
advocate for my appearance. I was of the opinion that the case is pending as
the advocate did not communicate. I was also very busy with the business. I
came to know from a communication received from Government of Tamilnadu, on
24-02-2004, that the above C.P. has been disposed. Immediately I contacted
my advocate and came to know that my counsel has reported no instructions, and
that respondent has been set exparte and exparte order dated 25-11-2002 has
been passed.
3. I state that I approached the present counsel and sought them to take
steps to set aside the exparte order. Hence there is a delay, and a separate
application has been filed before this Honourable Court for condoning the
delay in filing the connected petition. The non prosecution of the case
leading to exparte order is neither wilful nor wanton and highly inadvertent.
We are having a fit and valid case, unless and until the exparte order is set
aside we would be put to irreparable losses.
3. Hence it is humbly prayed that this Honourable Court may be pleased to
order setting aside the exparte order dated 25-11-2002, and render justice.”
6. The petitioner also filed a counter statement before the
Labour Court and opposed the petitions and hence the Court should not condone
the delay on the ground that the reasons had not been explained properly and
also delay of each day not supported with any proper reason or with any
documentary evidence. The lower Court had taken note of the fact that the
respondent company had engaged one Mr.C.N. Ramachandran, Senior Advocate to
represent the case before the lower Court. He was bedridden and was treated
in Appollo Hospital due to prolonged illness. The office of the said
Advocate, Mr.Ramachandran had not intimated to the respondent about the
progress of the case. Later, the said Mr.Ramachandran died. When the
respondent received a communication from the Government of Tamil Nadu on
24.02.2004 that the above claim petition had been disposed of, immediately the
respondent contacted the Advocate’s Office and thereafter he was informed that
the Advocate was bedridden for a long time and also taken medical treatment at
Appollo Hospital and later, the Advocate died. Due to these reasons, the
Advocate could not contact the respondent. The fact that the respondent
advocate Mr.C.N.Ramachandran was engaged and represented the case earlier was
not at all disputed by the petitioner. There may be some contradiction
between the reasons stated in the affidavit filed by the respondent and the
evidence put forward at the time of leading the evidence, and on that said
ground alone, the petition could not be dismissed. Letting in evidence
brought out the valid reasons and hence the Court below rightly relied on the
same for allowing the petition for condonation of the delay and setting aside
the exparte order. When the respondent proved that he had sufficient cause
for non-appearance, the Court is competent to set aside the order and restore
the claim petition.
7. The lower Court accepted the explanation offered by the
respondent and condoned the delay and consequently set aside the order passed
earlier. Also it was brought to the notice after setting aside the exparte
order, the claim petition was restored by the Labour Court and after
restoration, the petitioner himself did not appear and the claim petition was
dismissed for default. Later the petitioner filed condonation petition and
the matter was restored. Now, the petitioner cannot turn around and contend
that the respondent’s condonation petition should be dismissed.
8. No one gets benefited by filing belated appeal or application.
Because of the non-intimation by the Advocate’s office about the progress of
the case, the respondent could not properly instruct the counsel to make
proper representation. Instead of taking a technical approach or get caught
in the cobweb of technicalities, the Court takes a pragmatic approach in
deciding the case on merits, which will render justice between the parties.
In this case, the lower Court had correctly decided after considering the
reasons stated by the respondent company for condoning the delay as well as
setting aside the exparte order. The counsel for the petitioner had relied on
number of judgments to support his argument. They are not relevant to the
facts of this case as no general guidelines could be formulated for exercising
the discretion. The condoning of delays is the discretion of the Court on
appreciation of the evidences or materials available on the record. In this
case, the lower Court exercised the discretion judicially and hence it is a
reasonable one.
9. In view of the foregoing reasons, I am of the view that there
is no error or infirmity in the order of the lower Court and the same does not
require interference. Hence, the C.R.Ps. are dismissed. No costs.
Consequently the connected C.M.P. No.3467 of 2005 is also dismissed.
km
To
The Presiding Officer,
Labour Court, Coimbatore.