Madras High Court
Tamizhaga Panchalai Thozhilalar vs The Presiding Officer on 16 August, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/08/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9145 of 2005 Tamizhaga Panchalai Thozhilalar Sangam, Rep.by its General Secretary, 231, Sathy Road, Ganapathy, Coimbatore ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Thiruchirapalli. 2.The Management of Saravanan Spinning Mills(P) Ltd., Pittalaipatti Post, Dindigul. 3.The Government of Tamil Nadu, rep.by its Secretary, Labour and Employment Department, Fort St., George, Chennai-9. ... Respondents Prayer Writ Petition is 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 to the order dated 03.12.2004 passed by the first respondent in I.A.No.80 of 2004 in I.D.No.116 of 1999 and quash the same consequently direct the 1st respondent to dispose of the I.D on merits. !For Petitioner ... Mr.K.Karthikeyan ^For 2nd Respondent ... Mr.P.Chandra Bose For 3rd Respondent ... Mr.S.Kumar, Additional Government Pleader. :ORDER
The petitioner union has raised a dispute against the punishment of suspension imposed by the management of Saravana Spinning Mills Ltd., against three workmen and the issue has been referred for adjudication by the Government in G.O.Ms.No.884, dated 05.10.1999 and it has been taken on file, by the Presiding Officer, Labour Court, Thiruchirapalli as I.D.No.116 of 1999. The workmen have been represented by a counsel. On 20.02.2004 the matter has been dismissed for default, for non appearance. According to the petitioner, the Advocate Clerk has wrongly noted down the date, as 27.02.2004 instead of 20.02.2004 and hence, the counsel could not appear.
2.The grievance of the petitioner union is that all along I.D.No.116 of 1999 was represented without any default. Since a mistake has been committed by the clerk, two applications were filed in I.D.No.116 of 1999 on the file of the Presiding Officer, Labour Court, Thiruchirapalli,
i)to condone the delay of 11 days in filing the application to set aside the order dated 20.02.2004
ii)and another to set aside the order.
3.After hearing both the sides, the Presiding Officer, Tiruchirappalli vide order dated 03.12.2004 dismissed the petition, filed for condonation placing reliance on the decision of this Court in Anthony Devaraj and others Vs.Aralvoimozhi (Kurusadi) Devasahayam Mount Dor and Thuya Viagula, Annai Church and others) reported in 2004 (2) LW 239 wherein this Court has deprecated the practice of filing affidavits by the Advocates, in the courts of Kanyakumari District. The Presiding Officer, further observed that when the affidavits filed by the advocates would not be even entertained and therefore, the applications filed for condonation along with the supporting affidavit of the Advocate's clerk cannot be entertained.
4.Being aggrieved by the dismissal of the condone delay application in I.A.No.80 of 2004, dated 03.12.2004 in I.D.No.116 of 1999, the present writ petition has been filed.
5.In support of the relief sought for in the writ petition, referring to Rule 34 (10) of the Tamil Nadu Industrial Disputes Rules, 1958, Mr.K.Karthikeyan, learned counsel for the petitioner submitted that even if anyone of the parities defaults or fails to appear, the first respondent is bound to proceed exparte and dispose of the same in the absence of defaulting party on merits and therefore, there is failure on the part of the Presiding Officer, to adjudicate the dispute. He also submitted that the Labour Court has failed to consider the fact that the petitioner has been represented in all the hearings and that the default on 20.02.2004 was only due to the mistake, committed by the advocate clerk in wrongly noting down the date and hence, he is competent to swear an affidavit.
6.Per contra, placing reliance on the decision reported in 1989(1)L.W.543 (V.P.Nagarajan Vs.Prahavathi) and in Anthony Devaraj and others Vs.Aralvoimozhi (Kurusadi) Devasahayam Mount Dor and Thuya Viagula, Annai Church and others) reported in 2004 (2) LW 239 Mr.P.Chandra Bose, learned counsel for the management submitted that even if an advocate files an affidavit in support of an application, the same has been held as not maintainable and therefore, there is no manifest illegality in the order passed by the Presiding Officer.
7.Heard the learned counsel appearing for the parties and perused the materials available on record.
8.Reference has been made to the Presiding Officer in respect of suspension of three workmen in the year 1998. Material on record discloses that they were charge sheeted and that a punishment of suspension has been inflicted.
9.Though the learned counsel for the respondent management relied on the abovesaid two decisions, after considering the same, and two other decisions reported in 2004 (2) LW 239 Anthony Devaraj and others Vs.Aralvoimozhi (Kurusadi) Devasahayam Mount Dor and Thuya Viagula, Annai Church and others) and The Airport Director, Airport Authority of India, Chennai Airport, Chennai Vs.Gnanasekaran) reported in 2004 (2) MLJ 701, this Court in R.M.Bedi Vs.M/s.Vijayalakshmi Textiles Ltd and another reported in 2007 3 LW 1044 has held that an affidavit can be filed by an Advocate, if there is a bona fide mistake committed by him. Paragraphs 16 to 18 would be relevant and that they are extracted hereunder:
"16.Rule 13 of Section 49 (c) of the Advocate Act does not altogether bar an advocate from filing an affidavit in the interest of the client. Whenever an affidavit is filed on behalf of his party, he assumes the role of a witness. The Court has got a discretionary power to cross-examine the witness, at the instance of other party and that he has to produce the best evidence to prove the contents of the affidavit. Before exercising the discretionary power, the Court should be convinced "that such a course is necessary, in the interest of justice.
17.Order 9 Rule 8 C.P.C. applies when a suit is dismissed for default for non-appearance of the counsel and the party, the suit can be restored on the plaintiff establishing a good cause for his non-appearance. When a suit is dismissed for non-prosecution and absence of plaintiff's Counsel, the remedy open to him is to file an application for restoration. In a given case, where the plaintiff instructs his lawyer to seek for an adjournment for some reasons, such as sickness, bereavement in his family or he is unable to attend the Court for some bonafide reason, the party should not suffer for non-appearance of his counsel. If a Counsel files an affidavit, he takes the risk of exposing himself as a witness to the case. The legal practitioners are certainly the agents of the parties in a case and for the fault of the agents, the clients should not suffer. It is the duty of the counsel engaged for conducting a case on behalf of the party to appear on that day, when the matter is listed for hearing. Once the Counsel is engaged as a pleader by his client, the authority to represent his client continues to remain in force.
18.In the instant case, the Lower Court has dismissed the interlocutory application merely on the ground that the application itself is not maintainable in law, since the advocate on record has filed the affidavit. In my opinion, the application cannot be disposed of as not maintainable, but the Counsel can be called upon to explain or he can recuse himself from the case".
10.In yet another decision which was not noticed earlier in S.Balan Vs.R.Saraswathi Bai reported in 1978 LW 697, a Division Bench of this Court while entertaining an application filed for condonation of four days in preferring the appeal duly supported by the affidavit of an advocate, has held as follows:
"The order of the lower Court ought to be set aside. When an Advocate comes forward with a submission in an affidavit of this character, it should ordinarily be accepted by Courts, unless, indeed, the circumstances are very exceptional Advocates are members of the learned profession of law and even apart from their duties to their clients, are really in the situation of officers of Court, with the duty to strictly fulfil their obligations to their clients, and to the Courts, administering justice. They cannot, and ought not to be merely regarded as agents of private parties, as the lower Court appears to think. There are no reasons to believe that the affidavit of the Advocate is not true, or that it is not worthy of acceptance".
11.Let me consider some of the decisions, where a clerk has filed the supporting affidavit.
12.In Smt.Savithramma Vs.Cecil Naronha and another reported in 1988 (Supp) SCC 655 an advocate clerk filed an affidavit in reply to a contempt proceeding. At para 2, the Apex Court held as follows:
"2.....Order 11 Rule 2 of the Supreme Court Rules lays down that evidence in support of an application may be given by an affidavit in the Supreme Court. Rule 5 provides that affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. Rule 13 provides that in the verification of petitions, pleadings or other proceedings statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19 Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order 11 Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order 11 of the Supreme Court Rules is to enable the court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the court, in the form of affidavit. The importance of verification has to be judged by the purpose for which it is required. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the allegations and the deponent can be held responsible for the allegations made in the affidavit. In this Court evidence in support of the statements contained in writ petitions, special leave petitions, applications and other miscellaneous matters, is accepted in the form of affidavit filed by the parties concerned. It is therefore necessary that the party stating facts must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of fact is based on information the source of information must be disclosed in the affidavit. An affidavit which does not comply with the provisions of Order 11 of the Supreme Court Rules, has no probative value and it is liable to be rejected. In a matter where allegations of mala fides or disobedience of the court's order are made against a person or party it is all the more necessary that the person filing affidavit in this regard must take care to verify the facts stated in the affidavit strictly in accordance with Rules 5 and 13 of Order 11 of the Supreme Court Rules.
3. We are constrained to observe that of late affidavits are being filed in this Court in a slipshod manner without having any regard to the rules. Affidavits are being filed by persons who could have no personal knowledge about the facts stated in the affidavit. Deponents of affidavits pay no attention to verification, although this Court laid stress on this aspect as early as 1952. In State of Bombay v. Purushottam Jog Naik1 a Constitution Bench considering the importance of verification of an affidavit observed:
"We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed."
4. In the instant case verification of the complainant's affidavit is defective and it would not be safe to proceed on the allegations mentioned in the contempt petition.
5. The matter does not rest here. The affidavit filed on behalf of the accused in reply to the contempt petition is shocking. The office clerk of the advocate for the accused has filed affidavit on behalf of the accused in reply to the contempt petition. The deponent of the counter-affidavit has verified the affidavit saying that the statements of the case of the accused are true and correct which are based on the records maintained in the office of the advocate and based on the instructions received from the clients. Such an affidavit is wholly improper and inadmissible in evidence and liable to be rejected. What reliance can be placed on an affidavit filed by a person sitting at Delhi and that too a clerk of an advocate practising at Delhi giving reply to the allegations and facts and circumstances existing at Karnataka on the basis of records maintained in advocate's office at Delhi. The practice of clerks of advocates filing affidavits without a proper verification should be deprecated. As matters before the Apex Court are determined on the basis of the statements contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in accordance with the rules to assist the court in administering justice".
13.In Tiruchi Paper Bags Industry by its Managing Partner R.Arivalagan Vs. M.Aarbshah reported in 1990 2 LW 18, there was a delay of 91 days in representing the papers in the lower court. The Advocate's clerk filed the supporting affidavit for condonation of delay. The said application was dismissed. A civil revision petition was filed. A learned single Judge has set aside the order passed by the Court below and remitted the matter. However, in the abovesaid decision, there is no adjudication as to whether the affidavit of the clerk can be entertained for condonation. It is well known that, a decision rendered in a proceeding can be taken as a precedent, only when a point is raised and answered.
14.In Bihar School Examination Board Vs.Suresh Prasad Sinha reported in (2009) 8 MLJ 1306 (SC), wherein, Their Lordships have extracted some of the earlier decisions on the law of Precedent, as follows:
"14.The Courts should guard against the danger of mechanical application of an observation without ascertaining the context in which it was made. In C.I.T v.Sun Engg.Works (P) ltd., AIR 1993 SC 43: (1992) 4 SCC 363 this Court observed:
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."
It is also necessary to keep in mind the following principles laid down in Government of Karnataka and Others Vs.Gowramma and others AIR 2008 SC 863 with reference to precedential value of decisions:
"Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of prededents, every decision contains three basic postulates (i)findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent (See: State of Orissa V.Sudhansu Sekhar Misra and others AIR 1968 SC 647 and Union of India and others Vs.Dhanwanti Devi and others (1996) 6 SCC
44. A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn Vs.Leathern (1901) AC 495 (H.L), EARL OF HALSBURY LC observed that every judgment must be read as applicable tot he particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret words of statutes; their words are not to be interpreted as statutes.
The following words of LORD DENNING in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. ........
Precedent should be following only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it".
(Emphasis supplied)
15.In Sarva Shramilk Sanghatana (K.V),Mumbai V.State of Maharashtra and others, AIR 2008 SC 946: (2008) 1 MLJ 137, this Court cited the following passage from Quinn v.Leathern (1901 AC 495) with approval at p.141 of MJL:
"15.Now before discussing the case of Allen V.Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all".
16.In Bhavnagar University v.Pali tana Sugar Mills Pvt. Ltd., AIR 2003 SC 511: (2003) 2 SCC 111, this Court observed:
"it is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision".
17.As held in Bharat Petroleum Corporation Ltd., and another v.N.R.Vairamani and another AIR 2004 SC 4778: (2004) 8 SCC 579: (2004) 4 MLJ 147, a decision cannot be relied on without disclosing the factual situation. In the same judgment, this Court also observed at p.151 of MLJ:
"9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. (emphasis supplied)"
15.Though the Apex Court, dealt with the matter in a contempt proceedings, provisions of Order 19 Rule 3 of the Civil Procedure Code has been taken note of and ultimately, the Supreme Court has categorically held that it is the duty of the parties to the lis and advocates, to file affidavits in accordance with the rules to assist the Court in administering justice. At more than one places the Apex Court has made it clear that the litigant may file the affidavit, disclosing the facts which are true to his personal knowledge, information and belief. And if the statement of fact is based on information, he can disclose the source of information. Applying the said judgment to the facts of this case, even assuming that the advocate's clerk had wrongly noted down the date of hearing, which resulted in default and the consequential dismissal of the I.D, nothing prevented the Advocate or the party to the I.D from filing an affidavit, disclosing the facts, in the supporting affidavit. The number of days of delay is not a substantial issue, in these type of matters relating to condonation, but the question to be adjudged is whether an affidavit of advocate's clerk is sufficient and taken as evidence, in an application taken only on behalf of a party to the lis.
16.Proceedings before the Labour Court or Tribunal is governed by the Tamil Nadu Industrial Disputes Rules, 1958 framed in exercise of the powers conferred under Section 38 of the Industrial Disputes Act, 1947. Under Sub-rule 4 and 10 of Rule 34 of the Tamil Nadu Industrial Disputes Rules, 1958, in case, any party defaults or fails to appear at any stage, the Labour Court or Tribunal as the case may be, may proceed ex-parte and decide the reference application in the absence of the defaulting party. Rule 45 of the said rules enables a legal practitioner representing a party to a dispute under sub-section (4) of Section 36 shall file a memorandum of appearance. The disputed parties are also permitted to be represented by a worker or workers in clause (c) and subsequent on to Section 36. Sub-rule (2) of Rule 46 states that party appearing by a representative shall be bound by the acts of that representative. As per Rule 47, the representatives of the parties appearing before a Board, Court, Labour Court, Tribunal or an Arbitrator shall have the right of examination, cross- examination and re-examination and addressing the Board, Court, Labour Court, Tribunal or Arbitrator when any evidence has been called. Rule 48 deals with the ex-parte proceedings, if without showing sufficient cause any party to proceedings before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented the Board, Court, Labour Court, Tribunal or the Arbitrator may proceed as if the party had duly attend or had been represented. For better appreciation, the said rule is extracted hereunder:
48. Ex-parte proceedings:--(1) If, without showing sufficient cause any party to proceedings before a Board, Court, Labour Court, Tribunal or Arbitrator fails to attend or to be represented the Board, Court, Labour Court, Tribunal or the Arbitrator may proceed as if the party had duly attended or had been represented.
(2) The Board, Court, Labour Court or Tribunal or an Arbitrator may, for sufficient cause, set aside, after notice to the opposite party, the ex-parte decision either wholly or in part, on an application made within 15 days of the Ex-parte decision.
Provided that an application may be admitted after the said period of 15 days. If the applicant satisfies the Board, Court, Labour Court or Tribunal or Arbitrator as the case may be, that he has sufficient cause for not preferring the application within that period.
(3) An application under Sub rule (2) shall be supported by an affidavit.
{48-A. Application for restitution Where and in so far as an ex-parte decision is set aside under rule 48 the Board, Court, Labour Court or Tribunal or an Arbitrator shall on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such ex-parte decision or such part thereof as has been set aside and for this purpose the Board, Court, Labour Court or Tribunal or an Arbitrator may make such orders as may be deemed necessary}"
17.A combined reading of the said provisions makes it clear that if any party to the proceedings fails to represent, the Labour Court or the Tribunal or any other authority stated supra, may proceed to pass an ex-parte decision, the word "may" does not mandate that Labour Court or the Tribunal as the case may be should always decide the dispute on merits. The word 'may' should be read as directory and not mandatory, for the reason that if the Labour Court or the Industrial Tribunal, allows the other party to the lis to lead evidence for the purpose of adjudicating the dispute, then there is always a possibility of the defaulting party to seek for setting aside the exparte decision by filing an application. It can also dismiss the reference for absence of the party to the proceedings. Rule 48 also makes it clear that if sufficient cause is shown by the applicant with a supporting affidavit, the Labour Court or the Tribunal or the Arbitrator as the case may be may consider restitution.
18.To regulate the registration of the pleader's recognized clerks in the mofussil Courts rules have been framed and that the said rules have come into force on 01.07.1926. As per the said rules, clerks are recognized and registered. As per the rule 6 of the said rules, no clerk or the pleader shall as such be allowed to access to any of the Courts of the District or to any of the business attached to their Court unless he is for the time being a recognized clerk. The Civil Rules of Practice have been revised in the year 1937 and that the revised rules regarding pleader's clerks in Mofussil in Civil and Criminal Courts have come into force on 01.01.1937.
19.Reading of the provisions cited supra indicate that a registered clerk has only a limited right of having access to the business for the purpose of assisting the Pleader. Under the Vaklath, an Advocate is authorised to appear, conduct and prosecute (or defend) the proceeding for which he is engaged and all the proceedings that may be taken in respect of any application connected with some or any decree or order passed thereon. There is fiduciary relationship between the Advocate and the party to the proceedings. The cause for which, he is entrusted to appear, defend conduct and to prosecute the proceeding is held in trust. But there is no such relationship with an advocate's clerk.
20.In the case on hand, a perusal of the impugned order in I.A.No.80 of 2004 in I.D.No.116 of 1999 indicates that the Counsel had been engaged for the General Secretary of Tamil Nadu Panchalai Thozhilargal Sangam, Coimbatore to appear and conduct the said Industrial Dispute. Admittedly, the Advocate's clerk has filed the affidavit.
21.As per Section 2(7) of the Advocates' Welfare Fund Act, 2001, "Vakalatnama" includes memorandum of appearance or any other document by which an Advocate is empowered to appear or plead before any Court, tribunal or other authority.
22.As per the Dictionary of English Law by Earl Jowitt and Clifford Walsh, 'Advocate' means, a patron of a cause assisting his client with advice , and pleading for him. He is defined by Ulpian (Dig.50, tit.13) to be any person who aids another in the conduct of a suit or action. The term is at the present day confined to persons professionally conducting cases in Court, i.e., barristers and solicitors.
23.Though under the Vakalath, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate's clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader's clerk to file an affidavit on behalf of the litigant. Where the Advocate's clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader's office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit. In the instant case, it may be an application to condone the delay in setting aside the order of dismissal of an Industrial Dispute. If the practice of an advocate clerk filing a supporting affidavit is allowed, then tomorrow, in a proceeding before the Court, or the Industrial Tribunal, he can be permitted to file an affidavit supporting any application, whether it be for condonation or receiving documents or for any other cause. Even assuming that an Advocate clerk has committed a mistake in not noting down the hearing date properly or for any other cause, an ex-parte decision has been made by the Labour Court or the Industrial Tribunal or the Arbitrator as the case may be in the light of the provisions under sub-rules 2 and 3 of Rule 48 of the Industrial Disputes Rules 1958, it is for the applicant to satisfy the Labour Court or the Tribunal, as the case may be, for filing an affidavit. In the opinion of this Court, Sub- Rules 2 and 3 have to be read together. The application of any party for restitution should be supported by the supporting affidavit of the party to the proceeding or the representative permitted by the Court or the Advocate authorised under the Vakalat. An Advocate's Clerk cannot be said to be a person authorised to represent any proceeding before the Court, Labour Court or Industrial Tribunal as the case may be. Extension of authorisation cannot be made to a clerk or to any other employee of the Advocate. As stated supra, the Civil Rules of Practice made in the year 1926 and subsequently revised in the year 1937, 1983, viz., 'Advocate Clerks Rules', framed under Article 225 and 227 of the Constitution of India, do not authorize an Advocate Clerk either to step into the shoes of the party to the proceedings or the Advocate authorised under the Vakalat. At best, a recognized Advocate clerk shall be permitted to have access to the Courts and the Offices in respect of which the competent authority had issued any certificate of registration that is to say, in the case of recognized clerk working with an Advocate in the High Court and Courts in the city of Madras and in the case of recognized clerks working with an Advocate in the Mofussil, the Courts in the judicial district of the competent authority as the case may be.
24.In Kartik Chandra v. Jadumani reported in AIR 1952 Orissa 251, the Orissa High Court held that, "We would however note that this is not to be treated as a precedent and we must emphasize that the duty of the Councillor, the petitioner in such cases is to state clearly in the affidavit all matters by way of explanation for any apparent delay or acquiescence and that he has a duty to specifically bring such matters to the notice of the Court when making the motion.
(6) Another matter to be noticed at this stage is the preliminary objection raised by the learned Advocate-General appearing on behalf of the opposite party Nos.3 and 4, the District Magistrate and the Deputy Secretary L.S.G Department. He points out that the application made to us in this case is supported by the affidavit not of the petitioner himself, but of the advocate for the petitioner and of the advocate's clerk in charge of the case. He contends that in all such applications it is essential that the affidavit in support of the petition should be signed by the petitioner himself and that in the absence of such affidavit, the application ought to be rejected.
In support of that contention, he cites the case in RatanChandra v. Adhar Biswas [56 Cal.W.N.302 at 304], following the cases in Surendra Nath Das v. State of West Bengal [56 Cal.W.N.255], P.K.Banerjee v. L.J.Simonds [AIR 1947 Cal. 307 at 317 and R.V.Kensington Income-Tax Commissioners' [1917 (1) MB 486 at P.509]. This is, undoubtedly, the correct practice in such cases. But here also, this defect should have been brought to our notice when matter came up to us for admission on previous notice, given by the applicant to the Advocate- General, which has been accepted by him and before we posted the case for final disposal. These writs are comparatively new to this Court and the practice in respect thereof is not crystallised. Under these circumstances, while we should insist upon the observance of the correct practice and procedure in such matters, and while it may be true as contended that we are entitled even now to dismiss this application on the preliminary objection raised, we think, we have the discretion not to do so in this case, having regard to the consideration that all the facts alleged, in the affidavit are matters of record which are indisputable and undisputed."
25.This Court deems it fit to consider a Division Bench Judgement of the Allahabad High Court in Dr.Kamal Kumar Sharma .vs. The Principal, M.L.B. Medical College, Jhansi, reported in AIR 1988 Allahabad 32, wherein, the Court deprecated filing of a counter affidavit by a clerk, at para No.2, the Division Bench, observed as follows:
"2. At the outset, this Court would like to express dismay at the practice of clerks and subordinate officials being sent to file affidavits when the respondents arrayed ought to have answered the writ petition with their own affidavits."
26.In Uday Shankar Triyar v. Ram Kalewar Prasad Singh reported in AIR 2006 sc 269, at Paragraph 21, held as follows:
"21.... Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorises the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer and the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation."
27.In yet another judgement UPSRT Corporation .vs. Presiding Officer, Labour Court, reported in 2007(112) FLR 367, a Writ Petition has been filed against an award, an interim order was passed. Pursuant to which, an affidavit was filed by the Assistant Clerk in the Office of the Uttarpradesh State Transport Corporation stating that interim order has been complied with. Disapproving the practice of the Corporation in filing of affidavits through Advocate Clerks, a learned Single Judge of the Allahabad High Court observed as follows:
"This practice cannot be appreciated apart from the reason that it is showing discourtesy to the Court as held by this Court in the case law in Ravikaran Singh vs. State of Uttar Pradesh and others reported in 1993(21)ALR 197". This Court considered the above said judgement and paras 6,7,8 and 9 are reproduced as follows:
6.It has been brought to the notice of the Court that normal practice of the UP State Road Transport Corporation as well as other Corporations and the Departments of the State Government is to file affidavits through clerks. This practice cannot be appreciated apart from the reason that it is showing discourtesy to the Court as held by this Court in the case law in Ravikaran Singh .vs. State of Uttar Pradesh and others reported in 1993(21)ALR 197". This Court considered this aspect and has observed as follows in para 5 of the judgment which is being reproduced "In the counter affidavit which has been filed on behalf of the State respondents this statement of fact that the revenue had been paid by the petitioner has not been specifically denied. The Court further notifies that beyond this, not much credibility can be placed on this counter affidavit,for the simple reason that it has been affirmed by the Peshkar to the Tehsildar, District Badna. The party respondent, in a reference to the context, is the District Magistrate, Badna. The counter affidavit is a discourtesy to the Court and the Chief Standing Counsel UP will ensure that such affidavits are not filed before the High Court. This Court expects that party respondents shall file their affidavits instead of deputing their clerks to do so on their behalf."
7.In another judgment in Baburam Agarwalla .vs. Jamunadas Ramji and Co, Calcutta, reported in AIR 1951 (38) cAL.239, High Court has also taken note of this aspect and held as follows in Paragraph-7:-
(7) Repeated observations have been made by the learned Judges of this Court on this point and strong objections have been taken to the practice of having affidavits affirmed by subordinate clerks. It is absolutely essential in my opinion in interlocutory proceedings where the Court is asked to make an order on affidavits only that such affidavits on which Courts are asked to act must be from persons who could be relied upon and on whose affidavit it will be safe for the Courts to proceed. The persons in most cases who should make the affidavits are naturally the parties themselves and this is particularly so when personal allegations such as those made in the present cases are made against a particular party. It may be that in some cases a party to the suit may not be proper person to swear an affidavit in which case the Court will certainly rely on the affidavit of an employee or an agent of his who could show his competence and acquaintance with the facts of the case. That is not only desirable but also convenient. But it must be distinctly understood that it is the exception rather than the rule.
8. Considering the facts of the case as well as the normal practice adopted by the Government Departments, Corporations and Local Bodies are filing affidavits through the Clerks, this Court is of the firm view that this practice should not be allowed to continue in future.
9. In view of the discussions made above, in future all the affidavits or counter affidavits for or against by the Government Departments, Local Bodies, Corporations and any authority having instrumentality of the State shall be filed by an Officer authorised to file the same and not by the Clerk of such offices.
Registry is directed to send copy of this order within a week to Chief Secretary, Government of Uttar pradesh for compliance.
28.Though the above reported case, deals with transport corporation, filing affidavit through their clerk, yet the decision, taken be take as precedent for the purpose of deciding the present case, for the principle that the party to the lis, alone is the competent person to swear to an affidavit and in certain circumstances where a mistake is committed by the Advocate, inadvertently, then, he is competent to swear to an affidavit. The contention of the learned counsel for the petitioner that even a clerk can file an affidavit on behalf of the parties to the proceeding, cannot be countenanced. At best, he can file only a supporting affidavit, explaining the inadvertent mistake, committed by him, while acting as an employee in the pleader's office.
29.For the reasons stated supra, this Court is not inclined to accept the plea of the petitioner. Accordingly, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sms To
1.The Presiding Officer, Labour Court, Thiruchirapalli.
2.The Government of Tamil Nadu, rep.by its Secretary, Labour and Employment Department, Fort St., George, Chennai-9.