R KALIMUTHU Vs. MANAGEMENT MARLBORO ENGINEERING WORKS

JUDGEMENT

(1.) THE respondent is a small scale industry engaged in the manufacture and marketing of pumpsets. It has a branch at Indore. The petitioner was appointed as a Branch Manager at indore Branch of the respondent's concern. The petitioner was the sole incharge of the Branch and he was looking after the day to day administration. The duties of the petitioner were assigning work to the sales and administrative staffs employed under him, supervising their work and sanctioning leave etc. The petitioner was incharge of the Branch cash transactions and he also used to prepare periodical statements, debtors list and send the same to the respondent from time to time and also do all incidental administrative work. He was holding a responsible post as a Branch Manager, using the powers conferred on him. As there was some complaint against the petitioner , the respondent required him to come to Coimbatore for certain clarifications during May 2000. Because of some misunderstanding, the petitioner left the service. Later, the petitioner filed the said claim petition No. 470 of 2000 before the Labour court, Coimbatore claiming a sum of Rs. 1,14,525/- from the respondent. The respondent filed a counter statement and opposed the claim of the petitioner. The trial was commenced and the petitioner was put in the witness box. On 25. 11. 2002, the matter was posted for examining the respondent. The respondent did not appear, but his counsel appeared before the Court and reported no instruction. Specifically the case was posted on 25. 11. 2002 for cross examining the respondent. As the respondent was absent, the Court was of the view that he was not interested in defending the claim petition. Hence the matter was set exparte, and allowed the claim petition filed by the petitioner. The said fact came to the knowledge of the respondent only during February 2004, when the recovery proceedings were initiated against the respondent. Hence, the respondent filed I. A. No. 240 of 2004 to condone the delay of 444 days in filing the petition for setting aside the exparte order. The petitioner filed its counter affidavit and opposed the said condonation petition. By order dated 11. 10. 2004, the Presiding Officer of the Labour court, Coimbatore allowed the application. Later an application to set aside the Exparte order was filed in I. A. No. 844/2004. The petitioner also filed a counter affidavit opposing the said application. The lower Court allowed the said applications in I. A. No. 240 of 2004 and I. A. No. 844 of 2004 and also directed the respondent for payment of an amount of Rs. 1,000/- to the petitioner. Later, the main case in C. P. No. 470 of 2000 was restored to the file of the Labour court, Coimbatore. The petitioner filed the present petition challenging the order of the presiding Officer, Labour Court, Coimbatore dated 11. 10. 2004 in I. A. No. 240 of 2004 and dated 27. 10. 2004 in I. A. No. 844 of 2004.

(2.) THE learned counsel for the petitioner contended that the Presiding Officer had completely erred in allowing the application filed by the respondent for condoning the delay of 444 days in filing the application, and set aside the order. He also further submitted that the lower Court had over looked the material fact that whatever deposed by the respondent as P. W. 1, had not at all been set out in the affidavit filed in support of the petition for the condonation of the delay as well as for setting aside the exparte order. He also brought the notice of this Court that what was said in the affidavit filed in support of both the application was that respondent was represented by one Dhamodarasamy and that his consultant was following the case, and that the respondent was solely looking after the total business affairs and that the said dhamodarasamy failed to follow up the case since October 2002 and that he was of the opinion that the due intimation would be given by the Advocate for appearance. It was also stated that whatever has been said by the respondent ran contrary to the affidavit, obviously by taking advantage of the death of the Advocate and to draw sympathy, such a new case had been set up at the time of leading the evidence, contrary to the allegations made by him in his affidavit and also he emphasised that the lower Tribunal ought not to have taken into account the evidence of the respondent as P. W. 1 in as much as such an evidence was not based on the allegations made in the affidavit and accordingly the lower Tribunal ought to have rejected the entire contentions newly invented and improvised at the time of giving the evidence , by taking advantage of the death of the Advocate. He further stated that the lower Court ought to have noticed that the allegations as well as evidences let in by the respondent are totally malafide and not of good faith and as such on the discrepancies in the affidavit as well as in the evidence, and accordingly, should have dismissed the petition.

(3.) THE learned counsel for the respondent submitted that the lower Court considered all the relevant materials and taken note of the counsel's prolonged illness and later, the counsel representing the respondent, died. The said two facts were duly taken into consideration and then only the lower Court condoned the delay and set aside the exparte order, and the order of the lower Court is in accordance with law.