- (1.) 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. 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. 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 1989, the present writ petition has been filed.
(3.) 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. 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.;