Rajpipla Nagar Palika vs Yusufbhai Rasulbhai Pathan

H.K. Rathod, J.—Heard learned advocate Mr. Jayesh Dave for learned advocate Mr. Adil Mehta appearing on behalf of petitioner and learned advocate Mr. S.H. Iyer appearing on behalf of respondent.

In this matter, petitioner has challenged the award passed by Labour Court, Bharuch in Reference (LCB) No. 161 of 2001 (Old Reference No. 465 of 1990) dated 27th February 2002. The Labour Court had granted reinstatement with continuity of service with full backwages of interim period.

The brief facts of the present petition are as under:

3.1 The service of respondent was terminated on 1st September 1987. He was appointed in January 1984 receiving daily wage of Rs. 22=75 ps. as a driver. The dispute raised by him referred for adjudication on 1st January 1989. Before the Labour Court, vide Exh.3, statement of claim was filed by workman. Notice was sent to the petitioner by the Labour Court vide Exh.5, received the acknowledgment slip vide Exh.6, it means, notice issued by the Labour Court is served to petitioner. Thereafter, second notice for hearing was served to petitioner vide Exh.7 and acknowledgment slip is Exh.8, even though, petitioner remained absent. Thereafter, workman was examined before the Labour Court vide Exh.17. Thereafter, the right of cross-examination of petitioner was closed vide Exh.18. Thereafter, again, registered notice was served to petitioner vide Exh.19 and same was received by acknowledgment slip Ehx.20.

3.2 Thereafter, Labour Court, Bharuch has passed an ex-parte award on 12th August 1997 granting the reinstatement with full backwages of interim period. The application was made by the petitioner vide Exh.21 for setting aside the ex-parte award which was allowed by Labour Court on 30th April 2001 on condition that petitioner shall have to pay Rs. 2,000/- by way of cost to workman concerned. But, according to respondent workman, amount of cost Rs. 2,000/- was not paid to respondent workman by the petitioner. Therefore, again, after setting aside the ex-parte award, reference was taken up for hearing by Labour Court and notice was issued to the petitioner on 23rd January 2002 which was served to petitioner. Exh.30: an application for adjournment was given by petitioner and vide Exh.31, application was given by the workman that petitioner is not remained present on each date of hearing, therefore, ex-parte award, which was passed by Labour Court, may be confirmed as opportunity was given to the petitioner. Thereafter, matter was heard by the Labour Court. At that occasion, no one remained present on behalf of petitioner and no arguments were made by the petitioner. Therefore, Labour Court has considered the statement of claim, record and documents and arguments made by respondent workman.

3.3 Ultimately, Labour Court has come to conclusion and set aside the ex-parte award on condition to pay Rs. 2,000/- to respondent workman, even though, that amount is also not paid by the petitioner to respondent workman and not remained present before the Labour Court, though, vakalatnama was filed by the advocate vide Exh.25. According to Labour Court, number of opportunities were given to petitioner, but, petitioner failed to appear before the Labour Court and due to negligence on the part of petitioner, matter remained pending quite long time and ultimately, Labour Court has decided that ex-parte award passed on 12th August 1997 vide Exh.27 is confirmed by another order dated 27th February 2002.

Learned advocate Mr. Dave submitted that on 20th July 2004, respondent workman is reinstated by petitioner in service and since then, he is working with the petitioner. The petitioner is a public State Authority i.e. Rajpipla Nagarpalika. No doubt, there is some lapse on the part of Nagarpalika, but, there is also some lapse on the part of advocate who has filed appearance before the Labour Court on behalf of Nagarpalika, even though, he remained absent and therefore, ultimately, Labour Court has confirmed ex-parte award.

In light of the aforesaid background, the party should not have to make sufferer due to negligence of the lawyer. The view taken by Apex Court in case of Rafiq and Another Vs. Munshilal and Another, . The relevant discussion in Para 3 is quoted as under:

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. 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 sea! 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. May be 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. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A. K. Sanghi.

In view of aforesaid background, no doubt, petitioner remained continue negligent and not appeared before the Labour Court, therefore, two occasions, Labour Court has passed ex-parte award. On one occasion, matter was restored with cost, even, cost was not paid to respondent workman and again, not remained present though vakalatnama was filed by lawyer. Therefore, in light of this background, workman is working for more than three years with petitioner and Labour Court has granted full backwages of interim period, meaning thereby that, about 20 years period from the date of termination 1st September 1987. After all, directions issued by Labour Court is in absence of petitioner. In such circumstances, matter must go back to Labour Court to decide afresh after giving reasonable opportunity of hearing to both the respective parties, but, according to my opinion, again, a litigation remained pending between the parties and petitioner being a State Authority is sufferer and other side workman is also equally sufferer, therefore, just to put an end of the entire matter, this Court has suggested to both the learned advocates to find out the way, so, matter can be rested here without remanding back the matter to Labour Court. According to my opinion, it will be in the interest of both the respective parties.

Therefore, suggestion is that petitioner may pay full backwages from the date of award 27th February 2002 till the date of actual reinstatement of the respondent workman and respondent is to be confirmed considering the termination order is to be set aside. The workman is not entitled for any amount of backwages from the date of termination 1st September 1987 to 27th February 2002. So, workman may peacefully work with the petitioner and public body may not have much financial burden which is to be bare by it.

The suggestions made by this Court has been accepted by both the learned advocates giving consent by learned advocate Mr. Dave to pass appropriate orders on the basis of the suggestions made by this Court as he is agreed to that suggestions and other side, learned advocate Mr. Iyer also agreed to the suggestions that workman is not entitled to claim full backwages or any part thereof for the period from 1st September 1987 to 27th February 2002, but, confirming the reinstatement of the workman in service with continuity of service, the order is to be passed by this Court.

In view of above understanding between both the respective parties having the consent of both the learned advocates, according to my opinion, if this Court will pass appropriate orders as suggested above, will meet the end of justice between the respective parties.

In view of aforesaid facts, the order of termination dated 1st September 1987 is hereby set aside. It is directed to petitioner to reinstate the respondent workman in service with continuity of service with full backwages from 27th February 2002 till the date of actual reinstatement 20th July 2004.

Accordingly, the award passed by Labour Court, Bharuch in Reference No. 161 of 2001 (Old Reference No. 465 of 1990) dated 27th February 2002 is to be modified to that extent. It is directed to petitioner to reinstate the respondent workman in service with continuity of service w.e.f. 27th February 2002 and to pay full backwages from 27th February 2002 to 20th July 2004 within a period of four months from the date of receiving the copy of the said order and respondent workman is entitled the benefit of continuity of service with consequential benefits from the date of joining.

Accordingly, rule is made absolute to that extent with no order as to costs. Interim relief, if any, granted by this Court shall stand vacated.