Kerala High Court
Ernakulam Regional Co-Operative Milk ... vs Government Of Kerala on 7 January, 2002
Author: K. Balakrishnan Nair
Bench: K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The petitioner which is a Co-operative Society has approached this Court challenging Ext. P4 award of the Labour Court, Ernakulam dated 29.2.2000. The brief facts of the case are the following:
2. The Government by Ext. P1 order referred the dispute between the petitioner Co-operative Society and the second respondent Union representing the casual workers under the petitioner for adjudication by the Labour Court, Ernakulam. The dispute referred by Ext. P1 order dated 22.9.1994 was the following:-
"Whether the denial of employment to S/s. K.K. Mohanan, 2. N.M. Manoj Kumar,
3. V.C. Chandrasekharan 4. Subramanian N.A., 5. C.D. Deleep, 6. N. Lalu, 7. Rajeev N.R.
8. E.P. Somasekharan, 9. K.K. Ashokan, 10. K. Jayan and 11. Madhavan K.K. are legal or not (2) If it is illegal, what should be the remedy entitled to the above casual workers."
3. Before the Labour Court, the second respondent Union filed a claim statement on behalf of the workmen. In the said statement it is contended as follows: The workmen have continuous and uninterrupted service from 20.7.1990 and they were being paid daily wages at the rate of Rs. 35/- per day. When the union represented for extending the various statutory benefits, such as, E.S.I., Provident Fund, Bonus etc. the workmen were denied employment from 30.12.1991 in an arbitrary fashion. Even though they were called casual workers, they have continuous employment for about two years. Therefore, denial of employment to them will amount to retrenchment.
As the statutory requirements for the same have not been complied with, they should be declared to be continuing in service. It is also pleade that all along the management was directly paying the wages to the workers. They were working as plant attenders in different shifts. They were paid wages by individual vouchers. Apart from that, the management was procuring vouchers from one of the workmen separately to make it appear that he was a contractor providing the workmen. This was to deny the statutory benefits. The management filed Ext. P3 written statement contending that there was no employer - employee relationship between the causal workers and the management. According to the petitioner management, the workmen were engaged on daily wage basis through a contractor. Being a Co-operative Society, the staff pattern is the one sanctioned by the Joint Registrar, Dairy and at present there are no vacancies in the post of plant attender. From the side of the management, no witness was examined, nor any document produced. From the side of the workmen, one of the workmen was examined as WW1 and two documents were produced. The witness of the workmen was not cross-examined by the management. On the basis of the evidence before it, the Labour Court found that the workmen were having continuous service of more than two years and there is denial of employment in violation of Section 25F of the Industrial Disputes Act. Consequential orders were passed by the Labour Court directing the management to reinstate all the eleven workmen with continuity of service, backwages and other attendant benefits.
4. The learned counsel for the management attacked the award only on one ground i.e. the petitioner did not get a proper opportunity to cross-examine the witness of the workmen and to tender evidence from its side. Blame is put on the counsel who appeared for the petitioner before the Labour Court. It is also urged that it s a settled position in law that the client shall not suffer owing to the laches from the part of the counsel. Therefore, prayer was made for a remand of the case, so that the petitioner could adduce its evidence properly before the Labour Court.
5. The counsel for the second respondent union strongly opposed the suggestion for remand. As the denial of employment took place about ten years ago, a further remand would seriously prejudice the workmen. It is also pointed out that there was appearance of the counsel for the petitioner all throughout before the Labour Court and the management was not set ex parte.
6. It is true that this Court as well as the Apex Court has held in certain cases relating to setting aside ex parte and condonation of delay that the client may not suffer owing to the fault of his counsel. But the same cannot be extended to every case of alleged default from the part of the counsel. Here, the default can be that of the management also in not properly instructing the counsel in time for the conduct of the case.
7. On the basis of the evidence on record, the finding of the Labour Court cannot be set to be perverse or illegal. No attempt was made to say so by the counsel. Even though it is pleaded in the Original Petition that the management was not afforded a fair opportunity to present its case and thereby the Tribunal violated the principles of natural justice, what was urged before me, as stated earlier is regarding the alleged failure from the part of the counsel for conduct the case properly. I feel such a ground cannot be permitted to be raised in these proceedings. If it is permitted, this Court will be adding one more head to the woes of the ordinary litigant. It will put a further burden on him to ensure that his opposing counsel is conducting the case properly for his opponent. Otherwise, the judgment in his favour will be set aside on the ground of laches of that counsel. It is true, in criminal cases, the English and American Courts have recognised the flagrantly incompetent advocacy of the defence lawyer may result in denial of fair trial rendering the conviction invalid (see the decisions in R. v. Ensor (1989 (1) WLR 497 - Court of Appeal) and Strickland v. Washington (466 US 668 - U.S. Supreme Court). But in ordinary civil litigations, no such concept has been evolved. Therefore, I am not inclined to accept the contention put forward on behalf of the petitioner.
8. However, it is made clear that the workmen need be reinstated as casual workers. The back wages need be paid taking into account the average amount received by them for a period of one year immediately preceding the date of denial of employment. It is also made clear that in case the petitioner does not require the service of the casual workers, they can be retrenched from service following the procedure prescribed under law. In other words, the award of the Labour Court need not be taken as a direction for regularisation of service of the casual workmen. It is only a direction to restore status quo ante as on the date of denial of employment.
9. With the above clarifications, the Original Petition is disposed of.