IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2011 CORAM: THE HONOURABLE MR. JUSTICE T.RAJA WP.No.19172 of 2008 and W.P.No.20830 of 2008 1.The Assistant Engineer, Highways (NH 45) Section Office, Tindivanam 2.The Divisional Engineer, Highways (NH 45) Chengalpattu .. Petitioners in both WPs Vs. Sekar s/o.Ayalu. .. Respondent in WP.No.19172 of 2008 Pallanivel s/o.Kanniyan. .. Respondent in WP.No.20830 of 2008 The Presiding Officer, Labour Court, Cuddalore. .. Respondent in both WPs. Prayer in WP.19172 of 2008 : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of certiorari to call for the records of the 2nd respondent pertaining to his order in Industrial Dispute No.156 of 1999 dated 19.09.2003 and quash the same. Prayer in WP.20830 of 2008 : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of certiorari to call for the records to quash the Ex-parte Award dated 12.09.2002 made in ID.No.154/1999 on the file of the Labour Court at Cuddalore and the order dated 19.09.2003 made in IA.No.153/2003 and Ia.No.393/2003 in ID.No.154/1999 on the file of the Labour Court, Cuddalore. For Petitioners : Mr.K.V.Dhanapalan, AGP. For respondents : Mr.R.Muralidharan for R1 in both WPs. R2 – Court in both WPs. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER W.P.No.19172/2008 is filed by the department to quash the award dated 19.9.2003 made in I.D. No.156 of 1990 on the file of the Labour Court, Cuddalore. W.P.No.20830/2008 is filed by the department to quash the exparte award dated 12.09.2002 made in ID.No.154/1999 and the order dated 19.09.2003 made in IA.Nos.153 and 393/2003 in ID.No.154/1999 on the file of the Labour Court, Cuddalore. 2. The case of the petitioners in both the writ petitions is that the first respondent herein filed claim petitions dated 23.04.1999 under section 2A(2) of the Industrial Dispute Act before the Labour Officer at Cuddalore stating that they were appointed as Gang Coolies in March 1994 and after continuous employment under the Assistant Engineer of Highways (NH 45), Section Office, Tindivanam, they were retrenched on 12.03.1999 without valid notice and reason and they were not paid with any retrenchment compensation. The Labour Officer, Cuddalore by issuing notice dated 13.05.1999 had called for a conciliation meeting between the parties. Though, the Assistant Engineer, Highways, first petitioner herein filed a reply dated 21.05.1999 denying the averments made by the first respondent that the claimants had not worked for 480 days continuously, the said conciliation had ended in failure as per Lr.No.3910/P2/2001, dated 12.02.2011 of the Labour Officer, Cuddalore. 3. Subsequently, the first respondent/claimants filed another claim petitions dated 06.12.1999 under section 2A(2) of the Industrial Disputes Act in I.D.No.156/1999 and 154/1999 respectively before the Labour Court, Cuddalore praying for reinstatement in service. By award dated 5.1.2001, the Labour Court had set the department exparte and allowed the claim of the claimants seeking reinstatement in service along with back wages, based on their proof affidavit. Thereafter, the department filed I.A.Nos.233 and 231 of 2001 to set aside the exparte award dated 5.1.2001, along with written statement stating that the claimants never worked for 240 days in a calendar year, but worked for only 137 days per year and the said I.A.Nos.233 and 231 of 2001 were allowed and exparte award dated 05.01.2001 had been set aside. However, the Labour Court by its award dated 12.9.2002 had set the department exparte again and allowed the claim of the claimants seeking reinstatement with backwages and continuity of service. Thereafter, the department filed I.A.Nos.155 and 153 of 2003 to condone the delay of 40 days in filing the application to set aside the exparte award and I.A.Nos.395 and 393 of 2003 to set aside the exparte award dated 12.9.2002. The said condone delay applications were dismissed by the Labour Court on 19.9.2003 stating that the petitioner has not explained sufficient cause for filing the application to set aside the exparte award. Now, the said order is under challenge. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned Additional Government Pleader appearing for the petitioner submitted that though the application for setting aside the exparte award was filed only with a delay of 25 days, the 2nd respondent/Labour Court has proceeded on the presumption that there was a delay of 40 days. If proper chance is given to the petitioner, they could have moved suitable petition mentioning the proper reason for condoning the delay. As no sufficient opportunity was given to the petitioner, the exparte order passed by the Labour Court, which is working against the interest of the petitioner is liable to be set aside. Secondly, when the respondents/claimants had worked only for 28 days on daily wages without even receiving any sufficient document supporting the case of the petitioner that they worked for 240 days, the Labour Court erroneously allowed the claim petitions. This can be seen from the subsequent order passed by the same Labour Court dismissing the CP.Nos.13 of 2006 and 15 of 2006 filed under Section 23(c)(2) of the I.D. Act, on 24.10.2007, on this basis prayed for setting aside the same 5. Heard the rival submissions made on both sides. 6. Without going into the merits of the matters as to whether the claimants had worked for 28 days per month or more than 240 days, that has to be properly analysed by the Labour Court for the reason that the petitioner has taken up a solid ground that the respondents never worked beyond 28 days and they worked as daily wages, the writ petitions need to be allowed for the reason that the impugned order is one of exparte order. Therefore, this court by setting aside the exparte order, directs the 2nd respondent/Labour Court to reconsider the issue on receipt of all sufficient materials to prove the case of the respondents as to whether they have worked for more than 240 days or not. 7. In the result, the writ petition is allowed by setting aside the exparte order, subject to the payment of Rs.10,000/- to the respondents/claimants within a period of four weeks from the date of receipt of copy of this order, failing which, the exparte order will automatically stand restored. The 2nd respondent/Labour Court is also directed to dispose of the I.D.Nos.156 and 154 of 1999 on merits and in accordance with law, within a period of four months from the date of receipt of copy of this order. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar tsh https://hcservices.ecourts.gov.in/hcservices/ To 1. The Labour Court, Cuddalore. 2.The Assistant Engineer, Highways (NH 45) Section Office, Tindivanam 3.The Divisional Engineer, Highways (NH 45) Chengalpattu 2 ccs To Mr.R.MURALIDHARAN, Advocate, SR.33679, 33680 1 cc To The Government Pleader, SR.34368 W.P.No.19172Of 2008 and WP.No.20830 of 2008 mrd (CO) RH (7.7.11) https://hcservices.ecourts.gov.in/hcservices/