IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.4.2011 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.22938 to 22942 and 22572 of 2009 and M.P.No.1 of 2009 (6 MPs) V.C.Purushothaman .. Petitioner in W.P. No.22938 / 2009 T.Anjalai .. Petitioner in W.P. No.22939 / 2009 V.Ravi .. Petitioner in W.P. No.22940 / 2009 A.Elumalai .. Petitioner in W.P. No.22941 / 2009 N.Radhakrishnan .. Petitioner in W.P. No.22942 / 2009 D.Marimuthu .. Petitioner in W.P. No.22572 / 2009 -vs- 1.The Presiding Officer, I Addl.Labour Court, Chennai. .. Respondent No.1 in all the WPs. 2.The Management, M/s.Ganghadharam Appliances Ltd. No.143, Kelambakkam (via) Vandaloor Road, Pudupakkam, Kancheepuram District. .. Respondent No.2 in all the WPs. PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the first respondent pertaining to his https://hcservices.ecourts.gov.in/hcservices/ order passed in I.A.No.65/2008 in I.D.No.519/96 (W.P.No.22938 of 2009); I.A.No.30/2008 in I.D.No.468/96 (W.P.No.22939 of 2009); I.A.No.71/2008 in I.D.No.529/96 (W.P.No.22940 of 2009); I.A.No.39/2008 in I.D.No.481/96 (W.P.No.22941 of 2009); I.A.No.66/2008 in I.D.No.520/96 (W.P.No.22942 of 2009) and I.A.No.55/2008 in I.D.No.505/96 (W.P.No.22572 of 2009) dated 26.8.2008 and quash the same and consequently direct the first respondent to conduct the I.Ds. afresh and pass orders on merit. For petitioners :: Mr.P.Solomon For respondents :: Mr.S.Ravindran for M/s.T.S.Gopalan & Co., for R2 ***** O R D E R The petitioners in all these writ petitions are workmen, who have come forward to challenge the common order passed by the Labour Court in various Interlocutory Applications filed by the respective petitioners in various Industrial Disputes raised by them. The said Interlocutory Applications filed by the petitioners under Section 11 of the Industrial Disputes Act, 1947 read with Rule 48(2) of the Tamil Nadu Industrial Disputes Rules, 1958, were supported by identical affidavits, dated 25.3.2008. 2. The petitioners were employees of the second respondent Management and according to their averments in the affidavit, they became members of Madras City General Workers' Union, which was represented by its General Secretary, by name, R.K.Swaminathan. According to the workmen, a general strike was called for by the Left Parties Unions on 29.11.1991 protesting against the Anti- Labour policies of the Central and State Governments. The workmen had participated in the said strike. But, however, within a few days after the said strike, their services were terminated as per the oral information given by the then Personnel Manager of the second respondent Company. 3. Thereafter, all the petitioners raised a dispute under Section 2A(2) of the Industrial Disputes Act, 1947, before the Assistant Commissioner of Labour (Conciliation-I), Chennai. The Conciliation Officer, as he could not bring about mediation, gave individual failure reports under Section 12(4) of the Industrial Disputes Act. Instead of filing a claim statement, on the strength of the said failure reports, the union, to which the petitioners belonged, reopened the Industrial Disputes under Section 2(k) of the Industrial Disputes Act, which resulted in a reference before the Labour Court. But aggrieved by the said reference, the second respondent Management filed a writ petition being W.P.No.15180 of https://hcservices.ecourts.gov.in/hcservices/ 1994 before this Court and obtained stay. Having left with no other option, the workmen along with other workmen filed separate claim statements before the Conciliation Officer and the workmen were represented by one K.Naranayasamy of Chengai Podhu Thozhilalargal Sangam under Section 36(1) of the Industrial Disputes Act. But as the said authorised representative did not take further steps, the petitioners changed their affiliation to another union, viz., Madras City General Workers' Union, which is represented by its General Secretary one R.K.Swaminathan, who filed an authorization letter to appear on behalf of the workmen. 4. It is stated by the petitioners that they were unaware of the hearing dates in the Labour Court and their authorised representative Mr.R.K.Swaminathan expired on 18.2.2001. But, however, though the Industrial Disputes were adjourned on several dates, finally on 28.2.2002, they were dismissed for want of prosecution. The petitioners, because of the death of the General Secretary, were unaware of the proceedings and finally they came to know only during March 2008 about the dismissal of the disputes. 5. Therefore, they filed Interlocutory Applications under Rule 48(2) of the Tamil Nadu Industrial Disputes Rules seeking to condone the delay of 2208 days in filing the petition to set aside the dismissal of the Industrial Disputes. The said Applications were numbered by the Tribunal and notice was issued to the second respondent. Before the Labour Court, on those Applications, no oral evidence was let in and no documents were produced by the workmen. The Labour Court found that the delay of 2208 days was an inordinate delay and under Rule 48(2), an application to set aside the exparte Award will have to be filed within 30 days and if there is any delay in filing such application, then an application to condone the delay can be made. But, on the other hand, the Labour Court held in paragraph 7 of the order, dated 26.8.2008 that the Applications filed by the workmen were not bona fide. It does not disclose any single clause that they are not cogent enough to pursue the case. Paragraph 7 of the order reads as under:- ''7. In this case on hand that the petition was filed after lapse of many years after the publication of the award. It could be seen that there is no valid ground to entertain the petition. On the other hand, it shows that the petitioners were not interested in conducting the case and further not diligent in proceeding with the case. It shows that the petitioners slept over years after the disposal of the case. The Court finds that there is no justification in condoning the delay. Hence, in he above circumstance, the petition is dismissed without costs." 6. Challenging the same, the present writ petitions came to be filed. Though several workmen were covered by the order, all of https://hcservices.ecourts.gov.in/hcservices/ them have not come before this Court. In the writ petitions, notice of motion was ordered. On behalf of the second respondent Management, Mr.S.Ravindran, learned counsel representing M/s.T.S.Gopalan & Co. took notice. 7. Mr.P.Solomon, learned counsel appearing for the petitioners contended that the approach of the Labour Court was erroneous and the Labour Court has power under the Industrial Disputes Act to set aside the ex parte Award. The Labour Court had not become functus officio after the publication of the Award. In this context, he referred to the judgment of the Supreme Court in Radhakrishna Mani Tripathy -vs- L.H.Patel and another reported in (2009) 2 SCC 81. In that case, the Supreme Court held that the Labour Court on the publication of the Award had not become functus officio and if the Rules contemplate setting aside the ex parte order, which is akin to Order 9 Rule 13, CPC, the Labour Court will continue to have such power. In the present case, the Labour Court did not non-suit the petitioners on the ground that it had become functus officio. But it went into the merit of the Applications to restore the Award and found that there was no sufficient cause for condoning the delay. 8. The learned counsel also referred to the judgment of the Supreme Court in Rafiq and another -vs- Munshilal and another reported in (1981) 2 SCC 788, wherein the Supreme Court while observing that the party may be a villager or may belong to a Rural area, who may have no knowledge of the Court's procedure and after engaging a lawyer, he may remain supremely confident that the lawyer will look after his interest and thereafter when he finally found that the case was not proceeded further, he filed a delay petition to restore, held that the Court should not non-suit the parties on account of the innocent party suffering injustice merely because his chosen advocate had defaulted in pursuing the case. 9. The learned counsel further placed reliance upon the judgment of the Andhra Pradesh High Court in Sarada Engineering Company, Hyderabad -vs- M.A.Sattar and another reported in 2007 (1) L.L.N. 176. In that case, the Court while recording the fact that the trial Court did not examine as to whether the demise of the advocate had resulted in the petitioner's inability to be present before it or to prosecute the industrial dispute diligently, held that in the absence of the counsel, which is a relevant factor, the ex parte Award can be set aside. 10. In the present case, a short question that arose for consideration is whether the reason given by the petitioners in the affidavit filed in support of the various Interlocutory Applications before the Labour Court, they had adduced sufficient cause. Admittedly, there was a delay of 2208 days in filing such Applications. As rightly contended by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ management, the dispute arose in the year 1991 and failure report was given in the year 1992 and it was thereafter four years later, the identical claim statements had been filed. The ex parte order came to be made only in the year 2002 and therefore, it is unthinkable that the workmen were not aware of the proceedings, which concerned about their non-employment, which was in force for more than ten years. 11. The procedure to be adopted for conducting ex parte proceedings are set out in Rule 34 of the Tamil Nadu Industrial Disputes Rules, 1958. Under Rule 34(9), the Labour Court shall not grant more than three adjournments in any case and in which case, the adjournment shall not exceed more than seven days and if in the information of the Labour Court and under Rule 34(10), if any party enters appearance at any stage of the case, the Court can conduct ex parte proceedings. 12. Therefore, in the present case, in the absence of the petitioners' authorised representative, the Court has rejected the case of the petitioners. Under Section 36(1), the workmen, who are parties to the disputes, are entitled to be represented by an Office Bearer of the Registered Union and he is only a representative. It does not absolve the role of the workmen in keeping track of his own dispute, which is pending for several years. Unlike other Courts, such as Civil Courts, in the case of an Industrial Dispute, when an Award is passed by the Labour Court, free copies of the Award is despatched to the workmen, therefore, nobody can feign ignorance, but they were not aware of the ex parte dismissal of the dispute. 13. To counter the said submission, the learned counsel produced a copy of the claim statement, wherein the address for service on the workmen was given as that of their union and, therefore, the learned counsel contended that they were not in a position to know the fate of their Award. It is unthinkable that in the City of Chennai, the petitioners, who were not even aware of the death of their General Secretary, had chosen to come to the Court after six years feigning ignorance about the dismissal of the dispute. If only the workmen have gone to the union office either at the time of death or at any time reasonable thereafter, they would have been certainly told and secondly, the authorised representative, being the General Secretary of the Union, even if he dies for any unfortunate situation, it is not as if the union activities will come to an end and there are other office bearers who will espouse the cause of the union. 14. As rightly contended by the learned counsel for the second respondent that even in support of the Interlocutory Applications, except filing the affidavit, none of the workmen had got into the box to plead about their individual ignorance about the death of https://hcservices.ecourts.gov.in/hcservices/ the worker and a sweeping statement had been made in all the affidavits that all of them were not aware of the death of the General Secretary. In an application of this nature especially in condoning the delay in setting aside the ex parte order, it is needless to state whether the Court must be satisfied about sufficiency of the reasons supplied. In the present case, the Labour Court is not satisfied with the sufficiency of the reasons adduced by the workmen and for that reason, the workmen will have to be blamed themselves. This Court is not satisfied with the reasons adduced by the petitioners in challenging the impugned order passed by the Labour Court. The writ petitions are bereft of any legal reasons and are misconceived. 15. The writ petitions are accordingly dismissed. No costs. Consequently, the connected miscellaneous petitions are also dismissed. js Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer, I Addl.Labour Court, Chennai-600 104. + 1 cc to M/s. T.S. Gopalan & Co, Advocate SR No. 28788 RSI(CO) SR/9.6.2011 W.P.Nos.22938 to 22942 of 2009 and 22572 of 2009 and M.P.No.1 of 2009 (6 MPs) https://hcservices.ecourts.gov.in/hcservices/