Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6142 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 1583 OF 2007
THE SECRETARY, DEPARTMENT OF
HORTICULTURE, CHANDIGARH & ANR. … APPELLANTS
VERSUS
RAGHU RAJ … RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the
Department of Horticulture, Chandigarh and
another (appellants herein) against the
judgment and the decree passed by the Court of
Senior Sub Judge with Enhanced Appellate
Powers, Chandigarh on January 30, 1980 in Civil
2
Appeal No. 41 of 1979 and confirmed by the High
Court on April 26, 2006 in Second Appeal No.
2473 of 1980 as also an order, dated September
01, 2006 rejecting an application to recall the
said order.
3. Shortly stated the facts of the case
are that Raghu Raj-respondent herein, was
appointed by the Executive Engineer,
Horticulture Division, Chandigarh as ‘ beldar ’
on purely temporary basis. Initial appointment
was made in 1969 and after sometime, he was
discontinued. Again, fresh appointment was
given in 1972. It was expressly stated when the
respondent was appointed that his services were
liable to be terminated at any time without
notice or reason. According to the appellant,
the services of the respondent were not found
to be satisfactory and accordingly his services
were terminated on September 18, 1976.
4. The respondent raised an industrial
dispute. The parties, however, settled the
matter on February 15, 1977 pursuant to which
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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
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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
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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.
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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
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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
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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
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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
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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
th
clear that on 19 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 .
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In this RSA, which was put up
before the undersigned for the
th
first time on 19 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
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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)
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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
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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
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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.
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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
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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)