Deptt. of Horticulture vs Raghu Raj

matter on February 15, 1977 pursuant to which 3

the respondent was reinstated in service with

effect from February 19, 1977. The respondent-

workman was placed on probation for a period of

six months. According to the appellants, again

the services of the respondent were found to be

unsatisfactory. His services were, therefore,

terminated by an order dated August 12, 1977.

5. This time, the respondent-workman,

instead of moving Industrial Forum, approached

a Civil Court by instituting a suit in the

Court of Sub Judge, Chandigarh. It was

registered as Case No. 153 of 1977. The learned

Judge, by a judgment and decree, dated May 25,

1979, dismissed the suit filed by the

plaintiff. The Court held that the impugned

order of termination of services of the

plaintiff was "perfectly valid and legal" and

that the order was passed in accordance with

terms and conditions of the appointment order.

6. Being aggrieved by the decree passed

by the trial Court, the respondent-workman

preferred Civil Appeal No. 41 of 1979. The 4

Court of Sub-Judge with Enhanced Appellate

Powers(appellate Court) allowed the appeal, set

aside the decree passed by the trial Court and

held that what was stated in the order of

termination was that the work as well as

conduct of the respondent was unsatisfactory.

Imputation of unsatisfactory conduct would

amount to `stigma'. Since no notice was issued

to the employee, nor any explanation was sought

from him, nor an opportunity of being heard was

afforded, the order was liable to be set aside

being violative of principles of natural

justice. Accordingly, the order was declared

null and void and inoperative and a decree was

passed holding that the respondent-plaintiff

was deemed to be in service and was entitled to

all benefits of salary, increments and other

allowances. The amount comes to few lakhs of

rupees.

7. Aggrieved and dissatisfied with the

decree of the lower appellate Court, the

appellants herein preferred a second appeal 5

under Section 100 of the Code of Civil

Procedure, 1908. The appeal was registered as

Regular Second Appeal No. 2473 of 1980 and was

admitted on November 11, 1980. By a judgment

and order dated April 26, 2006, the appeal was

dismissed on merits.

8. The judgment itself recites;

"None for the appellants".

9. On behalf of the respondent, however,

an advocate appeared. The appeal was dismissed

with costs and the judgment and the decree

passed by the learned Senior Sub-Judge

(appellate court) was confirmed.

10. The appellants, on September 13, 2006,

filed an application for recall of the order,

dated April 26, 2006 dismissing the appeal with

a prayer to rehear the matter. But the said

application was also dismissed by the High

Court on October 1, 2006. Both the orders are

challenged in the present appeal.

11. On January 19, 2007, the Special Leave

Petition was posted for admission hearing. 6

Notice was issued. In the notice itself it was

stated that it was issued on the limited

question as to why the order passed by the High

Court should not be set aside and the matter be

remitted to the High Court for fresh disposal

in accordance with law after hearing both the

parties. The respondent was served who appeared

through an advocate and also filed a counter-

affidavit. The matter was ordered to be placed

for final hearing and accordingly it has been

placed before us.

12. We have heard learned counsel for the

parties.

13. The learned counsel for the appellant

submitted that the High Court committed an

error of law and of jurisdiction in dismissing

the appeal filed by the appellants herein in

absence of the advocate and without hearing

him. It was submitted that the Second Appeal

was filed in 1980. It was admitted and was

pending for final disposal. For more than two

decades, it did not come up for hearing. In 7

2006, the appeal was placed for final disposal.

The learned advocate for the appellants could

not remain present and the High Court dismissed

the appeal on merits. As soon as the appellant

came to know about ex-parte dismissal of

appeal, an application to recall the order was

filed but it was also rejected by the Court. It

was, therefore, submitted that the orders

passed by the High Court deserve to be set

aside.

14. It was also contended that the High

Court could not have dismissed the appeal on

merits in absence of the advocate. The appeal

was admitted in 1980. In accordance with the

provisions of the Code, at the most, the appeal

could have been dismissed "for appellants'

default" and not on merits. On that ground

also, the impugned orders are vulnerable.

15. It was submitted by the learned

counsel, that the appellants had engaged an

advocate. They were, therefore, under the

impression that the lawyer will take care of 8

the case and will appear as and when the appeal

will be called out for hearing. Even if it is

assumed that there was default on the part of

the advocate in not appearing at the time of

hearing, the appellant should not suffer. For

that reason also, the appeal should be allowed

and rehearing should be ordered.

16. The counsel also submitted that Civil

Court had no jurisdiction in the matter and the

case, could not have entertained, dealt with

and decided by granting reinstatement and

payment of back-wages which was really an

`industrial dispute'. The decrees passed by the

Courts below are, therefore, without

jurisdiction.

17. The counsel submitted that even on

merits, the order terminating the services of

the respondent-workman was legal, valid and

lawful. The workman was not found `suitable'

and, hence, his services were terminated in

accordance with terms and conditions of the 9

order of appointment and no fault can be found

against it.

18. On all these grounds, the counsel

submitted that the orders passed by the High

Court against the appellants are liable to be

set aside by remitting the matter to the High

Court for fresh disposal in accordance with

law.

19. The learned counsel for the

respondent-employee, on the other hand,

supported the decree passed by the lower

appellate Court and confirmed by the High

Court. It was urged that the appeal was ordered

to be placed for final hearing and it was on

Board. Appearance of the learned advocates for

the parties was shown. The counsel for the

appellant did not remain present. The High

Court was, therefore, fully justified in

proceeding with the matter and in dismissing

it.

20. The respondent has filed an affidavit

in this Court wherein it was mentioned that the 10

arguments were heard on April 19, 2006 and the

judgment was reserved which was pronounced

after one week i.e. on April 26, 2006. There

was inaction, negligence and carelessness on

the part of the appellant for which the

respondent-workman should not suffer. Since no

ground, much less sufficient ground, was made

out for recalling of the order, the application

was rightly rejected by the High Court.

21. Even on merits, the lower appellate

Court was right in allowing the appeal filed by

the respondent-employee and in declaring the

order null and void being stigmatic in nature.

It was, therefore, submitted that the appeal

deserves to be dismissed.

22. Having heard learned counsel for the

parties and giving anxious considerations to

the rival contentions, in our opinion, the

appeal deserves to be allowed. We had called

for the records and proceedings of the case and

perused them. From the record, it is clear that

the second appeal was admitted on November 11, 11

1980 and was pending for final hearing. Orders

were passed from time to time between 2004 and

2006.

23. The order dated April 19, 2006, passed

by the Court reads as under;

R.S.A. No. 2473 of 1980

Present:- None for the appellant.

Ms. Alka Sarin, Advocate for the respondent *** Arguments heard.

Order reserved.

April 19, 2006 Sd/- Judge

(emphasis supplied)

24. From the above order, it is amply

clear that on 19th April, 2006 when the

arguments were heard, none was present for the

appellants.

25. Then, on April 25, 2006, the Court

passed the following order:

R.S.A.No. 2473 of 1980

Present : None.

12 In this RSA, which was put up before the undersigned for the first time on 19th April, 2006, it has transpired that the substantial question of law had not been framed.

List the appeal for re-hearing for

26.4.2006.

April 25, 2006 Sd/- Judge

(emphasis supplied)

26. On April 26, 2006, again the matter

was placed on the board and as stated above, it

was dismissed in absence of the appellants or

their counsel.

27. Now, it cannot be gainsaid that an

advocate has no right to remain absent from the

Court when the case of his client comes up for

hearing. He is duty bound to attend the case in

Court or to make an alternative arrangement.

Non-appearance in Court without `sufficient

cause' cannot be excused. Such absence is not

only unfair to the client of the advocate but 13

also unfair and discourteous to the Court and

can never be countenanced.

28. At the same time, however, when a

party engages an advocate who is expected to

appear at the time of hearing but fails to so

appear, normally, a party should not suffer on

account of default or non-appearance of the

advocate.

29. In Rafiq & Anr. V. Munshilal & Anr.,

(1981) 2 SCC 788, the High Court disposed of

the appeal preferred by the appellant in

absence of his counsel. When the appellant came

to know of the fact that his appeal had been

disposed of in absence of the advocate, he

filed an application for recall of the order

dismissing the appeal and to permit him to

participate in the hearing of the appeal. The

application was, however, rejected by the High

Court, inter alia, on the ground that there was

no satisfactory explanation why the advocate

remained absent. The aggrieved appellant

approached this Court.

14

30. Allowing the appeal setting aside the

order passed by the High Court and remanding

the matter for fresh disposal in accordance

with law, this Court stated;

"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on 15

this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law."

(emphasis supplied) 16

31. In Smt. Lachi Tewari & Ors. v.

Director of Land Records & Ors, 1984 Supp. SCC

431, rule nisi was issued by the High Court in

the petition filed in 1976. After seven years,

the matter was placed for hearing of rule nisi

in 1983. It was the first day of reopening of

Courts after holidays. The petitioner had

engaged three advocates. None of them, however,

was available when the matter was called out.

The High Court dismissed the petition and

discharged rule since none appeared to press

the petition for the petitioner. An application

was moved on behalf of the petitioner for

recalling of the order and restoration of the

petition which was rejected. The petitioner

came to this Court.

32. Setting aside the order and remanding

the matter to the High Court for fresh disposal

and reiterating the law laid down in Rafiq,

this Court said;

"The mere narration of facts would suffice to focus attention on what point is involved in this appeal.

17 The petitioner obtained rule nisi in 1976 and waited for seven years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on April 21, 1983. The petitioner had taken extra caution to engage three learned Counsels. We fail to see what more can be expected of him. Further we fail to understand what more steps should have taken in the matter to avoid being thrown out unheard".

33. In Mangi Lal & Ors. v. State of M.P.,

(1994) 4 SCC 564, an appeal against conviction

recorded by the trial Court was dismissed by

the High Court for non-appearance of counsel

for the appellant due to `strike' by lawyers.

This Court held that dismissal of appeal by the

High Court was improper. The appeal was

directed to be restored to file and be heard on

merits. [see also Tahil Ram Issardas

Sadaranganj & Ors. v. Ramchand Issardas

Sadaranganj & Anr., 1993 Supp(3)SCC 256].

34. From the case law referred to above,

it is clear that this Court has always insisted

advocates to appear and argue the case as and

when it is called out for hearing. Failure to 18

do so would be unfair to the client and

discourteous to the Court and must be severely

discountenanced. At the same time, the Court

has also emphasized doing justice to the cause

wherein it is appropriate that both the parties

are present before the Court and they are

heard. It has been noted by the Court that once

a party engages a counsel, he thinks that his

advocate will appear when the case will be

taken up for hearing and the Court calls upon

the counsel to make submissions. It is keeping

in view these principles that the Court does

not proceed to hear the matter in absence of

the counsel.

35. In the circumstances, in our opinion,

the submission of the learned counsel for the

appellants has substance that the High Court

ought not to have decided the appeal in absence

of the appellants' counsel.

36. In the present case, the learned

advocate, appearing for the appellants, has 19

filed an affidavit in support of the recall

application. In para 1, it was stated;

"That the above named Regular Second Appeal was pending before this Hon'ble Court for regular hearing and was listed on various dates from time to time but could not be decided for one reason or the other and was thereafter even de-listed. Lastly, on perusal of the cause list, it has been noticed that the aforesaid Regular Second Appeal was added in the regular matters on 17.04.2006 at Serial No.304 before the Hon'ble Bench of Mr. Justice S.D. Anand at page 240 of the Regular Cause List. Alongwith the case at page 240 of the cause list, the names of the earlier counsels for the appellants as well as of the respondent were mentioned and the name of the present counsel for the appellant was mentioned on the next page i.e. at page 241 of the cause list and therefore, the listing of the matter escaped the notice of the counsel for the appellant.

Consequently, the matter was heard by this Hon'ble Court in the absence of the counsel for the appellant on 19.04.2006. Even on 19.04.2006 (Wednesday), it is only the serial number of the aforesaid case i.e. Sr. No.304 was mentioned in the Cause List for taking up for hearing and therefore even on 19.04.2006, it escaped the knowledge of the counsel for the appellant in the absence of giving of details of the case and the name of the counsel. It is only when the respondent asked for the implementation of the judgment passed 20

by this Hon'ble Court that the counsel for the appellant immediately thereupon inspected the cause list and noticed the aforesaid facts and applied for the certified copy of the judgment on 07.09.2006 which is yet to be received and after getting the un- certified copy of the judgment, is filing the present application for the recalling of the same."

37. In para 2, the deponent stated;

"That the non appearance of the appellants/applicants and their counsel before this Hon'ble Court when the matter was taken up for regular hearing was totally un-intentional and for the reasons explained above which are totally bona fide. Otherwise, the appellants have a good case on merits as the Regular Second Appeal is against the judgment of reversal and in view of the law settled on the point to the effect that the Civil Court has no power to grant back wages with reinstatement as the specific remedy for the grant of the same is provided under the Industrial Disputes Act, 1947. Although, a specific issue to this effect was framed before the courts below yet the same some how escaped the knowledge of this Hon'ble Court and the counsel for the respondent also failed to point out the same in the interest of justice and for fair play. In fact this was the substantial question of law before this Hon'ble Court which remains undecided. Even under Order 41 Rule 17, the appeal in the absence of the appellant ought to have been dismissed 21

in default instead of being decided on merits. Therefore, it would be in the interest of justice, if the judgment dated 26.04.2006 is recalled and the appeal is readmitted for hearing."

38. We have already extracted, various

orders passed by the High Court from time to

time. It is clear from the order dated April

19, 2006 that at the time of hearing of

arguments, the learned counsel for the

appellant was not present. The arguments were

heard, i.e., the arguments on behalf of the

respondent-workman were heard and the order was

reserved. But, in the subsequent order dated

April 25, 2006, the learned Judge who had heard

the matter on April 19, 2006 noticed that a

substantial question of law had not been framed

while admitting the appeal. The learned Judge,

therefore, ordered listing of the appeal for

rehearing on April 26, 2006 and accordingly,

the matter was posted for hearing on April 26,

2006.

22

39. On that day, i.e. on April 26, 2006,

the learned Judge framed substantial question

of law and heard learned counsel for the

respondent-workman. Learned counsel for the

appellant was not present. It is thus clear

that substantial question of law was framed by

the Court during the course of hearing of

Second Appeal for the first time on April 26,

2006.

40. On the facts and in the circumstances

in their totality, in our opinion, even though

the learned counsel for the appellant was not

present, it would have been appropriate, had

the High Court granted an opportunity to the

learned counsel for the appellant to make his

submissions by adjourning the matter.

41. It was also urged that the appeal was

admitted in 1980 and was pending for final

hearing. Such appeal could not have been

dismissed on merits in absence of learned

counsel for the appellant. In this connection,

reference may be made to Order XLI of the Code 23

which lays down procedure for hearing of

`Appeals from Original Decrees'. Rules 1 to 4

deal with `Form of Appeal', grounds to be taken

in `Memorandum of Appeal' `Application for

Condonation of Delay', etc. Rules 5 to 8 relate

to `Stay of Proceedings and of Execution'.

Whereas Rules 9 to 15 provide for `Procedure on

Admission of Appeal', Rules 16 to 29 deal with

`Procedure on Hearing'. Once an appeal is

admitted, Rules 16 onwards of Order XLI would

apply. Rule 17 provides for `Dismissal of

Appeal for Appellant's Default'. It reads

thus;

17. Dismissal of appeal for appellants' default

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

Explanation--Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

24

(2) Hearing appeal ex parte.--Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.

(emphasis supplied)

42. Explanation to Rule 17 of Order XLI

was inserted by the Code of Civil Procedure

(Amendment) Act, 1976. Before insertion of

Explanation to Rule 17, there was difference of

opinion among various High Courts whether an

appellate Court had right to dismiss an appeal

on merits if the appellant fails to appear.

Taking note of cleavage of opinion, the

provision of amended and Explanation was added.

43. In Objects and Reasons it was stated;

Clause 90--Sub-clause (viii).--When an Appellate Court does not dismiss an appeal summarily, it should fix a date for the hearing of the appeal. The procedure therefore is provided in Rule 17 which provides that where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the 25

appeal is called on for hearing, the Court may make an order that the appeal is dismissed. In this rule the word `may' shows that apart from dismissal of the appeal for default, the Court can pass other orders. One such order could be adjournment of the appeal. There is, however, a conflict of decision on the question whether, if the appellant does not appear, the Appelalte Court can dispose of the appeal on the merits. The Allahabad High Court has held that a decision on the merits is permissible. But the other High Courts have taken a different view. - Having regard to the conflict of decisions, Rule 17 is being made more explicit by adding an Explanation thereto to the effect that dismissal of an appeal on merits would not be permissible".

(emphasis supplied)

44. It is true that in the instant case,

the appeal before the High Court was not an

Appeal from Original Decree (First Appeal), but

an Appeal from Appellate Decree (Second

Appeal). But Rule 1 of Order XLII which deals

with Appeals from Appellate Decrees (Second

Appeals) lays down procedure and expressly

states that the Rules of Order XLI shall apply 26

so far as may be to Appeals from Appellate

Decrees. Prima facie, therefore, it appears

that once an appeal is admitted and is placed

for hearing i.e. hearing on merits, it can be

dismissed for default but cannot be decided on

merits in absence of appellant (or his

advocate).

45. In view of the fact, however, that in

our opinion, on the facts in their entirety,

the High Court ought not to have proceeded to

decide the appeal, we hold that the impugned

order of the High Court is liable to be set

aside. In view of this conclusion, we clarify

that we may not be understood to have expressed

final opinion one way or the other as regards

interpretation of Rule 17 of Order XLI read

with Rule 1 of Order XLII.

46. Since the order passed by the High

Court deserves to be set aside on a short

ground and the matter is remitted to the High 27

Court for fresh disposal in accordance with

law, we refrain from expressing any opinion one

way or the other on merits of the matter as

well. As and when the matter will be placed for

hearing before the High Court, the Court will

pass an appropriate order after hearing the

parties.

47. For the foregoing reasons, the appeal

is allowed. The orders passed by the High Court

dismissing the Second Appeal as also dismissing

the Recall Application are hereby set aside and

the matter is remanded to the High Court for

fresh disposal in accordance with law after

hearing the parties.

48. Since the respondent-workman was

required to appear in this Court pursuant to

the notice issued by the Court and had to incur

expenses, in our opinion, ends of justice would

be met if the appellants are directed to bear

costs of the respondent-workman which is 28

quantified at Rs.20,000/-. The said amount will

be paid by the appellants herein by a crossed

bank draft in favour of the respondent-workman

within four weeks from today. The said fact

will then be brought to the notice of the High

Court by the appellant and only thereafter the

High Court will proceed to hear the matter.

49. The appeal is allowed to the extent

indicated above.

......................................................J. (C.K. THAKKER)

NEW DELHI, ......................................................J. OCTOBER 17, 2008. (D.K. JAIN)