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The Management vs The Presiding Officer on 11 November, 2011

Madras High Court
The Management vs The Presiding Officer on 11 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Writ Petition (MD)No.11752 of 2009

The Management,
T.T.15, Tamil Nadu Electricity Board
Employees Co-operative
Thrift and Credit Society Ltd.,
Arignar Anna Building,
Tirunelveli-627 011.			... Petitioner

Vs.

1.The Presiding Officer,
  Labour Court,
  Tirunelveli.

2.B.Naarambu Nathan			... Respondents

Common Prayer

Writ Petitions are filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records in pursuant to the impugned order passed by the 1st respondent in
claim petition No.26 of 2003, dated 28.08.2008 and quash the same.

!For Petitioner		... Mr.S.M.Subramaniam
^For 2nd Respondent 	... Mr.Ms.D.Geetha
	
:ORDER

The writ petition is filed by Tamil Nadu Electricity Board Employees Co-
operative Thrift Credit Society at Tirunelveli. In this writ petition, the
petitioner society challenges an order of the Labour Court, Tirunelveli in
C.P.No.26 of 2003, dated 28.08.2008.

2.When the writ petition came up on 17.11.2009, this Court ordered notice
of motion. Pending the notice of motion, no interim order was passed.
Subsequently, when the matter came up on 29.10.2011, this Court found that the
management of the petitioner society filed only a gist order made in C.P.No.26
of 2003 as the impugned order. It was pointed out by this Court that a gist
order supplied by the Labour Court at free of cost pursuant to the Rule 54(2) of
the Tamil Nadu Industrial Disputes Rules, 1958 will contain only the operative
portion of the order and will not contain reasons for the order.

3.When this was pointed out to the learned counsel for the petitioner, the
learned counsel filed a copy of the order made by the Labour Court,
Tirunelveli, dated 29.11.2001, claiming to be the certified copy of the order
under challenge. In that order, the Labour Court had passed a common order in
respect of 8 workmen in C.P.No.56 to 63 of 1989 filed by similarly placed
persons including the 2nd respondent (C.P.No.57/99). But in the present case,
the workman (Narumbunathan-R2) filed C.P.No.19 of 2003 and which was not the
subject matter of the common order passed by Labour Court, dated 29.11.2001.

4.It is very unfortunate that the management at the first instance files a
gist order and gets an admission. Thereafter when asked to file a certified
copy, produces totally a different order which is not the subject matter of the
challenge herein. It was due to over anxiety on the part of the learned counsel.
As against the earlier common order, this Court in a batch of writ petitions in
W.P.Nos.35491 and 35493 of 2002, by order dated 23.12.2010 allowed the writ
petitions and set aside that common order.

5.However, after this Court insisted the petitioner to produce a certified
copy of the order passed in C.P.No.26 of 2003, which is the subject matter of
challenge in this writ petition. It must be noted that a writ in the nature of
Certiorari, if it is filed against a particular order of a quasi judicial or
judicial authority, unless and until that order is produced before the Writ
Court cannot review the order and find out whether the order suffers from any
material irregularities so as to exercise its judicial review power conferred
under Article 226 of the Constitution.

6.After seeking adjournment of the case, the petitioner produced a
certified copy of the order made in C.P.No.26 of 2003, dated 28.08.2008. A
perusal of the order shows that in that case, the Court computed amount on the
basis of the earlier case filed by the second respondent workman in C.P.No.57 of
1999. But in the second claim petition was filed the second respondent had
examined as P.W.1 but since no one appeared for the management, they were set
exparte. When an application to set aside the exparte order was also filed, it
was allowed on costs to be paid to the workman. But on the date of passing of
the order i.e., 28.08.2008 as the costs were not paid and as there was no
representation, that restoration application was dismissed for default.
Therefore, the Court held that there was no ground to set aside its earlier
order. C.P.No.26 of 2003, was filed claiming wages for the period from
01.07.1999 to 30.09.2002 and amount was computed on the strength of the earlier
order in C.P.No.57 of 1999 to the tune of Rs.1,03,256/-.

7.The question is to be decided whether the impugned order calls for any
interference.

8.When series of lapses noted above, clearly showed that the management
was not seriously interested in pursuing their legal claim. When they defaulted
before the Labour Court and the Labour Court itself was inclined to allow was on
payment small costs. The management failed to utilise that opportunity and
remained exparte. There is no gain saying that the earlier order in C.P.No.57
of 1999 was set aside by this Court in W.P.No.35491 of 2002 and batch of cases,
by a common order, dated 23.12.2010, the present order also must be set aside.
On the other hand, the management’s request for reopening was allowed by the
Labour Court. The fact that the previous claim was negatived is not a ground to
interfere with the subsequent order. But at the same time, the workman cannot be
allowed to get away by an exparte order computing a sum of more than one lakh
rupees due to the default by the management.

9.Even in the affidavit filed in support of the writ petition, the
petitioner had not stated that it was an exparte order and they have not
explained as to why they have failed to pay the costs. The affidavit is filed in
a mechanical fashion copying from earlier affidavits. This practice of
affidavits sworn being to by parties without application of mind and without
reference to the facts of that particular case must stop. The learned counsels
must devote more attention in the preparation of the pleadings for the parties.

10.However, in the light of the circumstances set out above and in the
interest of justice, this Court is inclined to set aside the order in C.P.No.26
of 2003, dated 28.08.2008. Since the workman was summoned to this Court for no
default on his side and in view of series of blunders committed in this writ
petition, this Court is inclined to order a cost of Rs.5,000/-.

11.However, the order dated 28.08.2008 in C.P.No.26 of 2003 is set aside
on the condition that the petitioner pays Rs.5000/- to the learned counsel for
the second respondent towards litigation costs. Once, it is set aside, the
matter will have to be remanded to the Labour Court, Tirunelveli for fresh
disposal. But no Court order an ineffecutal remand. In the impugned order, the
Labour Court has computed the claim only based upon the previous order in
C.P.No.57 of 1999 being the earlier claim petition filed by the first
respondent. When it was challenged before this Court in W.P.No.35491 of 2002,
the same was allowed and the order of the Labour Court was set aside by this
Court on 23.12.2010. However, any remand will be futile and ritualistic.
Therefore, this Court is not inclined to remit the matter. However, the
petitioner is allowed to work out his rights before an appropriate forum.

12.The writ petition is allowed to the extent indicated above, with cost
of Rs.5,000/-. Consequently, connected miscellaneous petition is closed.

sms

To
The Presiding Officer,
Labour Court,
Tirunelveli.

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