At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE R.A. SHARMA & THE HONOURABLE MR. JUSTICE D.K. TRIVEDI
For the Appearing Parties: Hamendra Pratap, Paras Nath Singh, R.A. Sharma, Advocates.
By an order dated November 3, 1971 petitioner, who was an Overseer in the Irrigation Department of the State was directed to pay a sum of Rs. 62,013/- (Rupees sixty two thousand and thirteen only) as compensation for the loss alleged to have been caused to the Depart ment on account of his act and omission in the discharge of his duties. Being aggrieved by it he filed the Civil Suit No 225 of 1973 in the Court of Civil Judge, Agra. During the pendency of the said suit U. P. Public Ser vices Tribunal Act came into force with the result that the civil suit filed by the petitioner in the Civil Court was transferred to the Public Services Tribunal, U. P. (herein-after referred to as the Tribunal) constituted under the said Act. The Tribunal vide its order dated 14-12-1978 dismissed the petitioner's suit/claim petition with the observation that the petitioner is not present inspite of repeated calls and his Counsel has stated "no instruction" in the case. The said order is reproduced below:
"the petitioner is not present inspite of repeated calls. The petitioner's Counsel stated that he has no instruction in the case. The petition is therefore dismissed. "
When the petitioner came to know about the said order of the Tribunal he moved an application for restoration of his claim petition before the Tribunal. The Tribunal rejected that application also vide order dated 17-8-82 feeling aggrieved by the aforesaid orders the petitioner has filed this writ petition.
2. I have heard the learned Counsel for the petitioner and the learned Standing Counsel.
3. The Tribunal is fully justified to dis miss the claim petition if the claimant is absent and his Counsel states " no instruction in the case". Therefore, no exception can be taken to the order dated 14-12-1978 passed by the Tribunal. But the petitioner's application for recall of the order dated 14-12-1978 could not have been dismissed without finding out as to whether the petitioner has the notice of the date and even if he has the notice was there any plausible explanation for his non-ap pearance in the Court. Hon'ble Supreme Court in Grindlays Bank v. Central Govt. Industrial Tribunal, AIR 1981 SC 606 has held that the Tribunal has incidental and ancillary powers to recall the order passed by it in the absence of the litigant if he makes out a case that he was either not served with the notice of the date or even if he was served with the notice he was unable to appear in the Court on the date fixed due to sufficient cause. In this connection the relevant extract from the said decision of the Supreme Court is reproduced below:
"we are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the Tribunal proceeds to make an award
without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh. "
Although the aforesaid case dealt with the power of the Industrial Tribunal but the law laid down therein would be equally ap plicable to Tribunal/court exercising judi cial or quasi judicial powers.
4. From the perusal of the order of the Tribunal dated 17-8-1992 it is clear that neither his Counsel has informed the petitioner about the date fixed in the case nor was such a notice given to him by the Tribunal. The Tribunal even then rejected the petitioner's application for restoration of his claim petition on the ground that it was his duty to pursue the progress of the case in the Court. The Tribunal has held that "if his Counsel has not informed of the date of hearing it does not stand to reason that the claimant would not have made any effort to find out from him the progress of his case". The reasons given by the Tribunal cannot be sustained. When a party has engaged a Counsel to represent him in a case before a Court or Tribunal he is not required to appear in person before it unless called upon the appear by his Counsel or the Court. That was not the position in the instant case. In this connection reference may also be made to Rafiq and another v. Munshi Lal, AIR 1981 SC 1400, wherein the Apex Court has laid down as under:
"the disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advo cates, 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 ap pearance of the party is not only 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. May be we do not know, he is better informed in 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 tenden cy, would it not bring justice delivery system into dispute. 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 advo cate. 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. May be that the learned advocate absented him self deliberately or intentionally. We have no material for ascertaining that aspect of the mat ter. 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. "
5. Although this Court does not inter fere under Article 226 of the Constitution of India with the order of the Tribunal dismiss ing the restoration application because such an order is discretionary, but when the Tribunal rejects such an application on the ground and for the reasons not warranted in law this Court had to interfere. The petitioner was fastened with the heavy financial liability of about Rs. sixty two thousand. His grievance was that the order imposing such a liability on him was ar bitrary and illegal. In view of the facts and circumstances of the case investigation into his grievance was called for specially in view of the fact that he was pursuing his claim diligently from 1973 when he filed civil suit in Civil Cour
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t and there was plausible reason for his non-appearance on the date when the case was dismissed in default by the Tribunal. I express no opinion about the statement of the learned Counsel made before the Tribunal, but from the pleadings of the petitioner it appears that the petitioner cannot be held guilty or respon sible for such a statement. In view of the facts and circumstances of the case the Tribunal was duty bound to recall the order dated 14-12-1978 dismissing the claim peti tion in default. 6. This writ petition is allowed with costs. The orders dated 14-12-1978 and 17-8-1982 passed by the Tribunal are quashed. The Tribunal is directed to decide the petitioner's claim petition afresh in accord ance with law within a period of three months from the date of presentation of certified copy of this order before it. Petition allowed.