RIAZ AHMAD SHARIFKHAN vs SHRI BABU MUSTAFA KHAN

IN this complaint gross deficiency in rendering the professional service by the opposite party Advocate has been alleged and, according to the complainant, this resulted in the dismissal of the complaint and consequently the complainant suffered the loss of service, emoluments, benefits for the remaining part of the service of about 15 years. Under various heads, therefore, the complainant has claimed the total amount of Rs. 8,97,200/-. It is, therefore, imperative on us to record the facts of the complaint in as many details as possible. The complainant has been working as a helper with the MSRTC since 1969. However, a departmental enquiry was ordered against him and he was dismissed by the order dated 6.6.1975. The complainant contended that the allegations were false and were, therefore, liable to be set aside. Reference was made in the Labour Court being Reference No. 94/97 and the said Court by its order dated 5.9.1981 set aside the finding and enquiry report and ordered reinstatement of the complainant with back wages. The MSRTC preferred Writ Petition No. 574/82 in the High Court and in order to defend the complainant, the complainant engaged services of the respondent Advocate. The necessary fees were paid to the Advocate and it was the bounden duty of the Advocate to have attended all the proceedings relating to the case. He was to be paid Rs. 3,000/- after payment of Rs. 1,800/-. However, surprisingly the respondent Advocate was negligent about proceedings before the High Court. He was also not applying for payment of subsistence wages which are permissible under the rules. Such proceedings were permissible u/Sec. 17-B of the INdustrial Disputes Act. All along the attitude of the Advocate was rather in-different and he did not take any steps for filing the said application to enable the complainant to draw the subsistence allowance. IN December, 1992, the complainant had been to the office of the opposite party at Yavatmal and there he was given to understand that the writ petition was allowed and the order of the lower Court was set aside. The said order was dated 11.7.1990 whereas the opposite party did not at all inform the complainant about the writ petition being allowed. When the complainant obtained a copy, he found that on the date of the hearing of the writ petition, the respondent Advocate had not attended the hearing and that is why the writ petition was not properly contested and was decided against the complainant. Regarding the claim, the complainant has contended that the Advocate was trying to mislead the complainant by directing him to prefer petition u/Sec. 33(c)(2) of the INdustrial Disputes Act in the Amravati Labour Court, for Rs. 1,06,900/-. Such a claim was made u/Sec. 17-B of the INdustrial Disputes Act. However, as the writ petition was allowed and order of dismissal confirmed, all attempts on the part of the complainant to obtain the relief were totally frustrated. The complainant claimed Rs. l,27,200/- being the arrears of the salary from 5.9.1981 to 10.7.1990. The future pay upto the date of retirement i.e. from 11.7.1990 to 10.5.2006 (date of birth of the complainant being 10.5.1948) being Rs. 5,70,000/-, Rs. 1,00,000/- for mental harassment and Rs. 1,00,000/- by way of cost. The complainant claimed in all Rs. 8,97,200/- from the respondent Advocate who, according to him, miserably failed in rendering the service in the case of the complainant.

WE may here observe that the respondent Advocate accepted the story about the proceedings. He also accepted that he was absent at the time of hearing of Writ Petition No. 574/ 82. He has further stated that the application for obtaining judgment copy was made on 12.7.1990 i.e. on the next date of the delivery of the judgment on 11.7.1990. But he obtained copy on 1.7.1991 practically after one year. But he intimated the complainant somewhere in October, 1992 and not in December, 1992 as suggested by the complainant. The learned Counsel appearing for the Advocate contended that the order passed by the High Court is as peaking order and in that order, it is clearly observed that the approach of the learned Labour Court was perverse. That, it was without any evidence and further that the presence of the Advocate at the hearing in the High Court would not have tilted the judgment in favour of the complainant. There was every likelihood of the writ petition being allowed. Before discussing these matters, we may briefly go through the facts which have been averred on behalf of the opposite party The opposite party has tried to seek amendment of reply. But, we feel that the amendment application dated is filed too late as against the complaint of 1993 and we are therefore, not inclined to allow the amendment. But all the same, it remains the fact that the entire matter is based on the Court record. According to the Advocate, the complainant was working as a helper with the MSRTC and he was served with a charge-sheet and the principal allegation was that in conspiracy with the Bahrain Dhoke watchman of the MSRTC, false orders of appointments were prepared in regard to three persons viz. Sanaulla, Abduljabbarand Samiulla. It was later on discovered that the complainant had manipulated these orders in collusion with watchman Baliram Dhoke. The complainant was, therefore, charge-sheeted and the enquiry officer on the basis of evidence tendered before him, found the complainant guilty. The final punishment of dismissal was inflicted on the complainant on 6.6.1975. The complainant, therefore, challenged this order by seeking Reference u/Sec. 10(1)(C) of the Industrial Disputes Act in the Labour Court at Akola being reference No. 94/77. The said Labour Court by its order dated 5.9.1981 quashed the finding of the enquiry officer and held that the Transport Corporation had illegally terminated the services of the complainant. The complainant was ordered to be reinstated with continuity of service and back wages. This award was challenged by the Transport Corporation by filing the Writ Petition No. 574/82. The High Court granted stay to the operation of the order of Labour Court. The services of the Advocate were engaged and the said Advocate prepared the caveat application for vacating the stay. The Advocate contended that the complainant affirmed the petition on 29.6.1982 and the same was registered as Caveat Application No. 2088/82. However, by the order dated 30.8.1982, the application was rejected and the stay was not vacated but was rather confirmed.

In the year 1986, the Supreme Court in the case of Bharat Singh v. Management, T.B. Centre, reported in (1986) SCC (L &J) 335, gave u/ Sec. 17(D) of the Industrial Disputes Act, retrospective effect to the awards of Labour Court and, therefore, the Advocate prepared the application for payment of monthly wages and to this effect, the complainant signed the affidavit on 22.7.1987 which was registered as C.A. No. 2254/87. The High Court was not inclined to accept the prayer, the writ petition was fixed for hearing on 13.8.1987. The Advocate, therefore, moved for the early hearing of the writ petition and the High Court was pleased to fix the date on 13.8.1987. But, it was not heard on that date or even on subsequent dates. But finally the said writ petition was heard on 11.7.1990. The High Court un-hesitatingly held that the complainant was guilty of serious charges viz. fabricating the appointment orders. The High Court passed the detailed order viz. the speaking order giving its reasons for setting aside the order of the Labour Court and for allowing the writ petition. The copy was applied for on 12.7.1990. But the same was delivered after about a year. The complainant was advised to approach the Supreme Court and lastly the application u/Sec, 33-C(2) was handed over to the complainant in the month of October, 1992. The Advocate has contended that the complainant approached the State Commission on 24.6.1993 after three years of the judgment of the High Court in July, 1990. With these details, the Advocate has contended that his absence at the time of hearing cannot be considered as deficiency inasmuch as the High Court had considered all the pleadings of the parties and recorded the judgment which cannot be questioned. On the other hand, the said judgment is based on patent facts which were operating against the complainant.

THE leamed Advocate for the complainant has contended that had the opposite party Advocate appeared at the time of hearing before the High Court, he would have convinced the High Court that the reasons adduced by the Labour Court in setting aside the dismissal order were correct and that there was no reason for the High Court to tinker with the conclusion arrived at by the Labour Court. We have carefully gone through the judgment in the Writ Petition No. 574/82 and we find that the order of the High Court is a detailed order involving discussion on all aspects of the enquiry conducted against the complainant. THE Labour Court had observed that the complainant admitted that he had been to Dhoke, the watchman, who represented to him that he would get the orders of appointment of three persons from the Divisional Controller for which the price should be paid. THE appointment orders were handed over by watchman to the employees. But the complainant went to the residence of the Divisional Controller who for the first time told him that such appointment orders were not issued by his office. THE High Court further observed that the complainant had admitted that he had never been to Divisional Controller and that was also not possible because the appointment orders were clandestinely obtained. Now such details, we are unable to censure the absence of the Advocate at the time of the hearing of the writ petition. For identical facts, the State Commission of the Union Territory, Chandigarh in the case of Kasturi Lal Advocate v. Bachansingh, reported in I (1997) CPJ 579, observed that if the Advocate has appeared on the previous occasions and obtained certain order and that if he was absent at the time of final hearing, his absence cannot be faulted if the Court delivers the speaking judgment. The Court observed that Kasturilal, Advocate had preferred the appeal and obtained the stay to the recovery proceedings and if the appeal is dismissed by detailed judgment wherein all the pleas raised in the appeal have been dealt with, the absence of the Advocate would not amount to deficiency in service. It was found that the order was a detailed speaking order and that it was recorded after the perusal of the documents and pleadings by the parties. In this case also, the judgment of the High Court clearly spells out that facts on the record were gone through and the High Court felt that order of the Labour Court could not be sustained. The approach of the Labour Court was found to be perverse. We find that the Advocate had taken steps to serve the interest of his client-the complainant before actual hearing of the writ petition.

TO this extent, therefore, we are unable to find serious deficiency on the part of the respondent Advocate. It was rather desirable that he should have attended the proceedings. But when the judgment of the High Court is based on detailed study of the record, it cannot be said that the judgment was recorded ex-parte or without consideration of the pleadings of the parties. Under the rules of natural justice which were followed by the judicial Forum, all that is necessary is to find out whether the Court has applied its mind to all the allegations, counter- allegations, facts/evidence on record. If the salient facts are missing, the judgment may be assailed. But if all aspects of the case are considered by the Court, the Court cannot be said to have decided the matter ex-parte. We believe that the High Court has decided the case on merits. The National Commission in the case of M/s. Kishangarh Marbles (P) Ltd. v. Gujarat State Financial Corporation, reported in I (1991) CPJ 103 (NC), has observed that the Redressal Forum does not get any right to go beyond the reasons recorded in the judgment by the judicial Forum. The Commission cannot go behind the said judgment and investigate into the allegations of the petitioner that there was deficiency in service. The judgment of the High Court has become the final judgment because no steps have been-taken by the complainant by approaching the Supreme Court. However, we find that the Advocate has miserably failed to prove that he communicated the order to the complainant at Yavatmal soon after obtaining the copy on 1.7.1991. The Advocate diligently made the application for obtaining the copy on the very next date of the judgment. The copy was delivered practically after one year. But that did not exonerate the Advocate from intimating the judgment in the writ petition to the complainant who was at Yavatmal far away from Nagpur. Here, we may briefly observe that once the Advocate is engaged for the client and he receives fees in part or in full, he is duty- bound to attend to the interest of his client. He must file the proceedings as asked for by the client forthwith. He must incorporate all the pleadings subject to law and rules and he must be diligent in filing the proceedings before the Court or the Tribunal. He cannot relax on that point. It is his duty to maximise the benefit and to minimise the loss to his client. Of course, the proceedings before the Judicial Forum are subject to the scrutiny by the said Forum. The client may lose or may win. If the client loses, the Advocate is further duty-bound to intimate the result of the proceedings to the client and the client should be left with adequate time to avail of further remedy. The client may engage that Advocate or may not engage. But the duty of the Advocate would only end after the intimation of the result of the proceedings handled by him, to the client. There is gross delay in this regard. The complainant was admittedly informed of the result of the High Court judgment as late as on 1.7.1992. There is a clear lapse of one year. The normal period of limitation had expired and the complainant was rendered helpless in regard to his further remedy. However, at the same time, the complainant can not seek damages in respect of the loss of total back wages or the benefits that were likely to accrue in future. But all the same, the gravity of the stake of the complainant can not be lost sight of. We are unable to accede to the argument of the complainant that there were 50% chances for the complainant to succeed in the Supreme Court. That would be tall claim based on sheer guess work. The guess work has no place in assessment of damages. The damages have to be computed on the basis of guidelines for assessment of damages, extent of injury etc. but not on certain visualised facts.

SO far as the Advocate here is concerned, he did commit deficiency in service in intimating the complainant about the result of the writ petition, the judgment of the High Court had tilted against the complainant and the complainant''s hopes for getting all benefits viz. past and future were, denied. But to speculate that he had great chance of success in the Supreme Court is too much to be swallowed by the judicial mind. In this case, we feel that the deficiency on the part of the Advocate can be reasonably compensated by asking the Advocate to pay Rs. 50,000/- (Rs. fifty thousand) to the complainant. No further amount would be legally supportable. We, therefore, pass the following order: ORDER

"THE complaint is allowed. THE opposite party Advocate shall pay Rs. 50,000/- to the complainant within two months of the communication of this order, failing which, the said amount shall carry interest @ 18% from the date of the complaint till actual payment. No separate order as to cost." Complaint allowed. ______________