Rudra Narain Pandey vs State of U.P.& Ors.

Heard the learned counsel for the appellant and the learned State Counsel.

The writ petition challenging the order of dismissal from service filed by the appellant (petitioner) was dismissed in default vide order dated 1101997. The restoration application filed by the appellant (petitioner) was also rejected vide order dated 1012000. Thereafter again an application for restoration was moved by the petitioner (appellant) which was again dismissed on 2912002.

The petitioner had challenged the order of dismissal from service but to his ill luck his case has been closed without even hearing his grievance. The lawyer whom he engaged died which information he could not get and the matter in the meantime was listed before the Court where it met its fate. The restoration applications were also rejected twice. The learned single Judge found that there was no good ground for restoration of the case.

In our opinion opportunity of hearing should not normally be shut to the person who approaches the High Court for ventilating his grievance against any action or order passed by the Government or any other authority, unless of course, there are very cogent reasons which may be exceptional in circumstances to deprive a litigant to have his say on merits in the High Court.

For the fault of the lawyer, if a case is not prosecuted diligently and is dismissed in default, the litigant cannot be subjected to any punishment as he is not supposed to be present on every hearing nor there is any mechanism to intimate him about the date fixed and that too well in advance so that he may make arrangement to come to the Court, if he is living in a far away district or even otherwise if he has to make arrangement to come to the Court. In a case where lawyer has died, naturally the information is sent by the office of the lawyers or by the Court also but still, there may be cases where such information does not actually reach to the litigant and therefore, when he approaches the Court, a lenient view ought to be taken so as not to deprive the litigant his right of remedy before the Court. Of course, if it is found that there are reasons which do not permit such a lenient attitude necessary orders are accordingly to be passed but this should be done in rare cases.

A person who has come to the Court against dismissal from service cannot be allowed to go from the High Court without looking into the grievance and distress that he is facing because of dismissal from service. The Court would be justified in dismissing the case in default if lawyers do not appear and the petitioner is not also present but when an application for restoration is moved, there would be little justification for not restoring the petition to its original number and not affording opportunity of hearing to the litigant.

The dismissal from service is a serious matter which has its own adverse effect and impact upon the whole family namely, if an order of dismissal from service is set aside not only that the lost prestige of the Government servant is restored but he is also economically benefited and, if at all, any time remains he would be allowed to continue in service till he reaches the age of superannuation. Merely because no counsel could appear in the case because of the death of the counsel engaged or for any other reason, in our considered opinion the Court would not be justified in refusing restoration of the writ petition. Substantive rights claimed by the parties need be adjudicated upon by the Court. Of course, if default had occasioned for no fault of the litigant and for the fault of the counsel i.e. because of his casual attitude, towards the case, or because of his absence, for no valid reason, adequate cost may be imposed upon the counsel in view of law laid down in the case of Rafiq and another v. Munshilal and another reported in AIR 1981 SC 1400: 1981 All LJ 704.

7A. In the instant case, the appellant could not or did not engage a counsel after the death of his counsel, and for this mistake he could not have been deprived his right of hearing in the case. The bonafide of the appellant in pursuing the case diligently can also not be doubted, as he has gained nothing in getting the case dismissed in default.

We therefore, set aside the orders dated 1101997, 1012000 and 2912002. The Special Appeal is allowed. The writ petition is restored to its original number. Since it is informed that the petitioner is of quite old age i.e. 88 years, we direct that the writ petition be listed for hearing in the first week of April 2008, before appropriate Bench and the same shall remain on board till decided.