V VEERARAGHAVAN Vs. P O LABOUR COURT COIMBATORE

JUDGEMENT

(1.) THIS writ petition is filed under 226 of the Constitution of India for the issuance of a writ of certiorari calling for the records of the first in I. A. No. 733 of 1987 in Petition No. 395 of 1955 dated December 18, 1987 and Computation petition No. 395 of 1988, dated February 8, 1988 and quash the same.

(2.) THE facts is disclosed from the filed by the petitioner can be briefly stated as follows. The petitioner is the proprietor of the permanent theatre known as Gobald Theatre at Sathyamangalam. From 1957 onwards, the second respondent was employed in the petitioner's theatre as Projector Operator. According to the petitioner, during the tenure of his office, the second respondent was very irregular in his attendance as he was engaged in other part-time jobs at that time. He applied for leave on January 13, 1981 and January 14, 1981 and the leave was granted Again, he applied for leave on two days on medical ground. He was asked to produce the medical certificate in proof of the alleged illness and thereafter to produce the Fitness Certificate and join duty. The second respondent refused to produce any Medical Certificate. Hence, the lever requested for by him was refused. He failed to turn up for duty and he raised industrial dispute in I. D. No. 188 of 1981. He obtained an ex-parte award on April 29, 1982. Though the petitioner engaged a lawyer to defend the case, the matter was not followed properly due to the breach of trust committed by the petitioner's ex-clerk and as such an ex-parte award was passed. Thereafter the second respondent filed another petition under Section 33-C (2) of the Industrial Disputes Act claiming backwages from July, 1981 till September, 1985, amounting to Rs. 12,500. That petition was also received by the ex-clerk of the petitioner and he handed over the same in the Advocate. But the Advocate did not take adequate steps to inform the petitioner about the ex-parte order or the filing of the computation petition. Only in August, 1986, when the petitioner engaged another lawyer, he came to know of the actual position. Thereafter he contested the claim of the second respondent in Computation Petition No. 395 of 1985 alleging that the second respondent was gainfully employed as a projector operator and he is having a tea shop of his own and hence he is not entitled to wages during the period of his non-employment. He was also prepared to reinstate the second respondent immediately with continuity of service, but without backwages. But the second respondent failed to turn up for duty since he was employed in some other theatre.

(3.) THE petitioner was able to obtain a certificate dated October 14, 1986 from the proprietor of Sathya Theatre, Sathyamangalam, to the effected that the second respondent was employed under him from October 22, 1984 on a monthly salary of Rs. 500. The petitioner also filed I. A. No. 521 of 1987 requesting the first respondent to issue a notice to the Electrical Inspector, Gandhipuram, Coimbatore, directing him to produce the Cinema Operator Employment Registers for the period from July 1, 1981 to September 13, 1985 as the Electrical Inspector having jurisdiction over the area maintains a register showing the employment of cinema operators in various theatres under the Tamil Nadu Cinemas Regulations Act, 1985. By the order dated August 27, 1987, the first respondent allowed I. A. No. 521 of 1987 as the second respondent has no objections. The summons was issued to the Electrical Inspector for September 17, 1987. Though summons has been served on the Electrical Inspector, he did not attend the hearing. Hence the petition was closed. The petitioner filed I. A. No. 733 of 1987 requesting the first respondent to issue summons to direct the Electrical Inspector to produce the Cinema Operators Employment Register. By the order dated December 18, 1987 the petition was dismissed with the following observations :