The Management, v. Thavasimuthu

In the High Court of Judicature at Madras Dated: 15.06.2015 Coram:

The Hon'ble Mr.Justice SATISH K. AGNIHOTRI and The Hon'ble Mr.Justice M.VENUGOPAL W.A.No.714 of 2015 and M.P.No.1 of 2015 The Management, Vasambadi Estate, Yercaud - 636 601 rep. By LRMK Valliappan, Receiver, Vasambadi Estate ..Appellant/Petitioner Vs.

1 Thavasimuthu 2 M.Raja 3 P.Palanisamy 4 V.Poochi 5 P.Venkatachalam 6 K.Kandasamy 7 Kuzhanthaisamy 8 Mariammal 9 Maathammal 10 Saroja 11 Elisa 12 Chinna 13 Kamalam 14 Palaniammal 15 K.Unnamalai 16 Pappathi 17 Periamallika 18 P.Selvi 19 Muniammal 20 Pushpam 21 Thaymmal 22 Kumari 23 Nagammal 24 Thangammal 25 Regina 26 P.Pappa 27 R.Lakshmi 28 M.Chitra 29 Priya 30 Dhanabakkiam 31 Anbuvalli 32 Murugayee 33 Kasi. Maathammal 34 Manjula 35 P.Maniammal

36 Kodi. Bakkiam 37 P.Maathammal 38 Aath. Karutha 39 Pali. Muthumani 40 Amaravathi 41 Muluvi. Valli 42 V.Vasantha 43 Santhavalli 44 Suseela 45 A.Dhanam 46 P.Kuppayee 47 M.Deivanai 48 P.Rani 49 A.Vasantha 50 P.Poongodi 51 K.Palaniammal 52 Malar 53 Santha 54 Pali.Revathi 55 Seng. Krishnaveni 56 P.M.Poongodi 57 Kalaimani 58 Banumathi 59 Malaichi 60 K.Annamalaichi 61 C.Dhanabakkiam 62 K.Kanga 63 P.Lalitha 64 Chennammal 65 Dhanabakkiam 66 Saroja 67 Pali.Vellain 68 Jeyachandran 69 Kandasamy 70 Seng.Palani 71 K.Mathesh 72 Periyagoundan 73 Periyakuppan 74 Bakkiaraj 75 Kathiresan 76 K.Rajaram 77 K.Kuppusamy 78 P.Raman 79 Siva 80 Pali.Sundaram 81 Kodi.Lakshmi 82 K.Palaniammal 83 K.Saroja 84 P.Parvathi 85 P.Lakshmi 86 A.Vellachi 87 K.Jothi 88 M.Lakshmi 89 Kasi. Vellaiammal

90 Sakunthala 91 Puthu. Vellaichi 92 P.Vijaya 93 M.Mallika 94 Mysore. Kamalam 95 P.Manichi 96 A.Mathammal 97 K.Unnamalai 98 Mangalam. Vasantha 99 Pali. Pachayee 100 A.Chinthamani 101 P.Geetha 102 A.Vellachi 103 Seng. Vellaiammal 104 Vazha. Chinna 105 A.Valli 106 Mani. Palaniammal 107 P.Alamelu 108 P.Chandra 109 Pili. Valli 110 Seng. Sakthi 111 P.Pappu 112 Seng. Mathammal 113 Pali. Meena 114 K.Panchali 115 Indarani 116 Samu. Lakshmi 117 K.Mathammal 118 P.Sundari 119 Mani. Parvathi 120 K.Bakkiam 121 Samu.Selvi 122 Rukmani 123 Thalai.Velliammal 124 Andi Palaniammal 125 Thalai Jayamani 126 Sora Valli 127 Pushparani 128 Nagavalli 129 K.Kuppayee 130 A.Dhanabakkiam 131 G.Lakshmi 132 K.Sulochana 133 Boopathi 134 Kala 135 Chinnavellayan 136 Theerthagiri 137 A.Kuppusamy 138 Eswaran 139 Chandran 140 Mariammal 141 Vijiyan 142 Chinnakuppan 143 Paramasivam

144 Allimuthu 145 Moyyasamy 146 Peruchandi 147 Pil.Kozhanthan 148 Pali.Goundan 149 Rajendran 150 Vijayakumar 151 Palanisamy 152 Periyamanian 153 Elangovan 154 Balakrishnan 155 S.Mani 156 Perumal 157 A.Andi 158 Rathinavalli 159 Annamalai (Respondents 1 to 159 are rep.

By Neelamalai Thotta Thazhilalar Sangam, Thotta Thozhilalar Illam, Main Road, Yercaud.

160 The Presiding Officer, Labour Court, Salem. ..Respondents/Respondents Prayer: Writ Appeal filed under Clause 15 of the Letter Patent Appeal against the Order of this Court dated 25.03.2015 made in W.P. No. 25896 of 2014.

Writ petition filed under Art 226 of the Constitution of India to issue a writ of certiorarified calling for the order of the 160th respondent Labour Court, Salem dated 18.8.2014 in I.A. No.395 of 2009 in C.P.No.117 of 2006 and quash the order dated 18.8.2014 in C.P.No.117 of 2006.

For Appellant :

Mr.AR.L.Sundaresan Senior Counsel for Mr.Sivavarthanan For Respondents:

Mr.K.M.Ramesh

JUDGMENT

[Judgment of the Court was Delivered By M.VENUGOPAL, J.] The Appellant / Management/Petitioner has focused the instant intra court Writ Appeal as against the Order dated 25.03.2015 in W.P.No.25896 of 2014 passed by the Learned Single Judge. 2.The Learned Single Judge while passing the Impugned Order dated 25.03.2015 in W.P.No.25896 of 2014 filed by the (Appellant/Management/Petitioner) in Paragraph Nos. 5 to 9 had observed the following and consequently dismissed the Writ Petition. Furthermore, the Learned Single Judge had permitted the Respondents/Workers to withdraw the entire amount deposited by the

Appellant/Petitioner/Management and the Respondents/Workers were also granted liberty to claim balance amount, if any, in accordance with law.

"....5. On a perusal of the affidavit filed in support of the application in I.A.No.395 of 2009 in C.P.No.117 of 2006, it could be seen that the representative of the Management has stated that he was suffering from heart ailment and that he was taking treatment for the past several years. Therefore, he could not appear before the Court on 10.01.2007. The Management also produced the Medical Certificate issued by the Doctor in support of their contention. However, on a perusal of the Medical certificate dated 10.11.2009 produced by the petitioner Management, it could be seen that the Doctor has not stated that the representative of the Management was taking treatment during the relevant period and that he was bed-ridden and that he was not in a position to move around or appear before the Court. That apart, the Management has not examined the Doctor on its side. In fact, the Management has not examined their representative also in order to substantiate the averments stated in the affidavit filed in support of the writ petition.

6. In the absence of any acceptable reason given by the Management for condoning the inordinate delay of 1017 days, the application filed by the Management was rightly dismissed by the Labour Court.

7. In these circumstances, I do not find any error or irregularity in the order passed by the Labour Court and the writ petition is devoid of merits and the same is dismissed.

No costs.

Consequently, connected miscellaneous petitions are closed.

8. It is submitted by the learned counsel for the respondents that the Management has already deposited a sum of Rs.5,00,000/- in the earlier writ proceedings and the same has been withdrawn by the workers. Thereafter, in the present writ petition, this Court had directed the Management to deposit a sum of Rs.5,00,000/- on 24.9.2014. According to the learned counsel on either side, the said amount was also deposited by the Management in due compliance of the order dated 24.9.2014. It is also brought to the notice of this Court that the petitioner Management has deposited sum of Rs.3,00,000/- even during the pendency of the application before the Labour Court.

9. Since the writ petition has been dismissed by this Court, I permit the respondents workers to withdraw the entire amount deposited by the petitioner Management and the respondents workers are also at liberty to claim the balance amount, if any, in accordance with law." 3.The Learned Senior Counsel for the Appellant/Management submits that the Impugned Order of the Learned Single Judge dated 25.03.2015 in W.P.No.25896 of 2014 is contrary to law and as such is liable to be set aside.

4.According to the Learned Senior Counsel for the Appellant, the Learned Single Judge should have seen that the Appellant/Management/Petitioner had explained the delay in filing the petition to set aside an exparte order and the reasons assigned by the Appellant are bonafide and as such, the Appellant should have been provided with an opportunity to contest the case on own merits.

5.While advancing his arguments, it is the contention of the Learned Senior Counsel of the Appellant that the Learned Single Judge should not have dismissed the case on the ground that in the Medical Certificate produced by the Management, the Doctor had not stated that the Representative of the Management was taking treatment during the relevant period and that he was not in a position to move around or appear before the Court. Furthermore, the Appellant/Management had assigned sufficient reasons for not appearing before the Labour Court and therefore roving enquiry was not required based on the facts and circumstances of the case. 6.The plea of the Appellant is that the Learned Single Judge should have seen that the claim of the Respondents/Workers is that recovery of interest for the delayed payment of wages amounting to Rs.17,10,536.44 and out of the same, the Appellant had deposited Rs.13,00,000/- before the Labour Court, Salem and had proved its bonafide in contesting the case on merits.

7.In effect, the prime contention of the Appellant/Management is that sufficient opportunity needs to be provided to it, when substantial amount was deposited and unfortunately, this aspect of the matter was not discussed by the Learned Single Judge at the time of passing the Impugned Order.

8.Yet another strenuous plea projected on the side of the Appellant is that the Learned Single Judge should have seen that under the 'Payment of Minimum Wages Act' payment of interest is not adumbrated and as such the terms of Section 12(3) settlement under Industrial Disputes Act, 1947 dated 03.12.2003 is outside the purview of the Act and in reality the issue as regards the enforcement of such terms under Section 33(3)(2) of the Industrial Disputes Act, 1947 is to be decided by the Labour Court and further it is not a mere computation of amount, therefore, the Appellant / Management should be provided with an opportunity to put forth his views for the purpose of adjudicating the matter in issue.

9.The Learned Senior Counsel for the Appellant vehemently proceeds to submit that the Learned Single Judge should have seen that I.A.No.395 of 2009 was filed on 09.11.2009 and the Writ Petitions challenging the Revenue Recovery Proceedings were filed only during the period 2010 and therefore, it is quite clear that the participation by the Appellant/Management in the proceedings before the Hon'ble High Court was after filing of the petition to condone the delay but, the Labour Court, Salem erroneously had

concluded that the Appellant/Management was agitating before the High Court and as such had knowledge about the exparte order dated 10.01.2007. Viewed in that perspective such finding is an error apparent on the face of record and therefore, the Impugned Order of the Labour Court, Salem is necessarily to be set aside in the interest of justice.

10.Apart from the above, the real grievance of the Appellant/Management is that the Learned Single Judge should have seen that the Appellant's Representative was suffering from ailment and he was undergoing treatment which was established by Ex.P.1, Medical Certificate and therefore, the fact that he was admitted in hospital on 10.01.2007 or he was undergoing treatment need not be proved through a witness. In fact, the Learned Single Judge should not have carried away by the fact that the Appellant/Management had not examined the Doctor or its Representative. 11.Lastly, it is the stand of the Appellant/Management that the Labour Court, Salem in its Impugned Order had never held that the Appellant had knowledge about the exparte order and deliberately filed the petition to set aside the exparte order with delay.

12.Per contra, the Labour Court proceeded merely on assumption that the Appellant is dragging on the proceedings and as such, the Impugned Order is liable to be set aside.

13.At this stage, it is to be pointed out that the Presiding Officer of Labour Court, Salem in I.A.No.395 of 2009 in C.P.No.117 of 2006 filed by the Appellant/Management/Petitioner had in Paragraph No.10 among other things observed the following: "....The Petitioner has failed to produce any supportive documents to prove the fact that he was continuously taking treatment and also he was bed ridden in hospital on 10.01.2007.

The petitioner has participated in the proceeding between himself and respondent before various forum including the High Court. It shows that the petitioner was aware of the fact that the he was set exparte in C.P.117/2006 on 10.1.2007 due to his absence. Knowing fully well of the fact of the exparte order against him, he has not taken any steps to set aside the same immediately after the order. It is clear that the petitioner was highly negligent to file a petition to set aside the exparte order though he was aware of the fact. The documents on the side of the respondent could clearly indicates the attitude of the petitioner in dragging on the proceedings which cost much inconvenience and great hardship to the respondent and it cannot be compensated by way of cost...."

and ultimately opined that the Appellant had failed to assign acceptable and sufficient reason for the delay in filing the petition to set aside the exparte order passed against him on 10.01.2007 and further held that the delay would not be condoned as a matter of right etc., and dismissed the petition without costs. 14.It cannot be gainsaid that the term 'Sufficient Cause' is undoubtedly an elastic one. No doubt, an unfettered discretion is conferred on a Court of Law to do substantial justice between the parties, ofcourse based on the facts and circumstances on a particular case.

15.It cannot be forgotten that the Rights accrued to the other side cannot be so easily erased by a Court of Law in condoning the delay of 1017 days in a casual and cavalier manner. 16.In this connection, this Court more significantly points out the decision of the Hon'ble Supreme Court H.Dohil Constructions Company Private Limited V. Nahar Exports Limited and Another reported in (2015) 1 Supreme Court Cases 680 at Special Page 681 whereby and whereunder it is held as follows:- "...It is true that the delay in filing the appeals was only 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned.

Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into the registry. But when an enormous delay of nearly five years occurred in the matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals...."

17.Be that as it may, on a careful consideration of the Impugned Order passed by the Learned Single Judge in W.P.No.25896 of 2014 dated 25.03.2015, this Court is of the considered view that the Learned Single Judge had rightly opined to the effect that "..in the absence of any acceptable reason given by the Management for condoning the inordinate delay of 1017 days, the application filed by the Management was rightly dismissed by the Labour Court" and finally concurred with the view taken by the Labour Court, Salem in the Order dated 18.08.2014 in I.A.No.395 of 2009 in C.P.No.117 of 2006 and the same does not call for any interference. Resultantly the Writ Appeal fails.

In the result, Writ Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Impugned Order dated 25.03.2015 in W.P.No.25896 of 2014 passed by the Learned Single Judge is affirmed by this Court for the reasons assigned in this Writ Appeal. Consequently, connected miscellaneous petition is closed.

Sd/- Deputy Registrar True Copy Sub Assistant Registrar To The Presiding officer, Labour Court, Salem.

+1 cc to Mr.M.Sivavarthanam, Advocate,SR.29224. +1 cc to Mr.Ramesh, Advocate,SR.29152.

Lrs(co) krd 24/6 W.A.No.714 of 2015 and M.P.No.1 of 2015