Allahabad High Court
Om Prakash Chaubey vs District Inspector Of Schools & ... on 2 December, 2015
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 784 of 2015
Appellant :- Om Prakash Chaubey
Respondent :- District Inspector Of Schools & Another
Counsel for Appellant :- Shankar Bhagwan Singh,Raj Nath Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
The appellant filed a writ petition under Article 226 of the Constitution seeking to challenge an order dated 18 May 1993 passed by the Manager of the Harihar Mahadev Inter College, Deochandpur, Varanasi by which his services were terminated. The appellant also sought a mandamus restraining interference in the discharge of his duty as Assistant Teacher in the L.T. Grade. The petition came up for hearing before the learned Single Judge on 1 November 2010 and the following order was passed:
"Learned counsel for the petitioner states that this writ petition has become infructuous by efflux of time.
It is accordingly dismissed."
The appellant moved a recall application stating that he had no knowledge of the order dated 1 November 2010 since despite enquiry his previous counsel had not furnished a satisfactory response and that it was only ten days prior thereto when he was informed from the office of the District Inspector of Schools, Varanasi that the petition had been dismissed on 1 November 2010. It may be also noted that the appellant stated that he was regularly working in the institution and had never furnished instructions to his earlier counsel to make the statement that the petition had been rendered infructuous by lapse of time. The relevant averments in that regard were as follows:
"6. That aforesaid writ petition was not infructuous by efflux of time as stated by previous counsel of the petitioner but petitioner is regularly working in the aforesaid institution as Assistant Teacher in L.T. Grade in Sri Harihar Mahadeo Inter College, Deochandpur, Varanasi and petitioner was full hope for his regularization but on account of statement of previous counsel matter of regularization has been stopped and petitioner suffering from great loss.
7. That no any consent was taken by the previous counsel to the petitioner before giving the statement before this Hon'ble Court that writ petition has been became infructuous by efflux of time but on account of imagination aforesaid statement was given by the previous counsel which is not true."
The learned Single Judge dismissed the recall application on 16 October 2015 with the following order:
"1. This is an application seeking recall of order dated 1.11.2010.
2. The aforesaid order was passed on the statement made by counsel for petitioner. Application for recall has been filed by a different counsel, who was not present on that date and has not made the statement. This application by a different counsel is not maintainable inasmuch the Court recollect that counsel, who appeared on behalf of petitioner on that day initially tried to argue the matter on merits, but finding some difficulty, he made statement for dismissal of writ petition as infructuous. I, therefore, find no reason to recall the said order.
3. The Restoration Application, along with delay condonation application, is hereby rejected."
The only ground on which the recall application has been dismissed is that it was filed by a counsel who was not present on the date of the earlier order of dismissal. In the view of the learned Single Judge, an application by a different counsel was not maintainable. The Court observed that it could recollect that the counsel who appeared on behalf of the appellant on that date had initially tried to argue the matter on merits but finding some difficulty, he had made a statement to the effect that the petition be dismissed as infructuous.
In our view, the real issue to be decided is whether such a statement which was made by the learned counsel appearing on behalf of the appellant to the effect that the petition had been rendered infructuous by efflux of time would bind the appellant so as to prevent him from applying for recall of the order. The learned Single Judge has held against the appellant on the ground that the recall application was filed by some other Advocate. The fact that the recall application was filed by some other Advocate would assume relevance if the appellant sought to dispute whether such a statement was actually made before the learned Single Judge. For the purpose of the special appeal, we shall proceed on the basis that such a statement was made before the learned Single Judge on 1 November 2010 to the effect that the petition had been rendered infructuous by efflux of time. The issue is not as to whether the statement was made but whether even if made, the appellant would be precluded from applying for recall on the ground that the statement did not reflect the correct state of affairs.
We may note, as we have observed above, that the challenge in the present case was to an order terminating the services of the appellant which had been passed on 18 May 1993. The writ petition was pending in Court thereafter for nearly 17 years. There is no reason to presuppose that a petition challenging an order of termination of this nature would be rendered infructuous by efflux of time. The issue as to whether the petition is or is not rendered infructuous by lapse of time, is a matter which can certainly be agitated before the Court if the litigant on whose behalf a statement was made by the counsel seeks to urge that the statement was made mistakenly and without authority of the client. The appellant was entitled to urge that the issue in regard to the legality of the order of termination was a live issue and that he was continuing in the service of the institution.
In our view, the learned Single Judge ought not to have dismissed the recall application merely on the ground that it was made by counsel other than the person who has appeared on behalf of the appellant when the matter was heard on 1 November 2010. The fact that the application was made by a new counsel may at the highest dis-entitle the appellant from questioning whether the recital in the order of the learned Single Judge dated 1 November 2010 is a correct statement of what had actually transpired in the Court. Hence, for the purpose of this appeal, we have proceeded on the basis that the learned Single Judge on 1 November 2010 correctly recorded the statement which was made before the Court by the counsel. However, even if that be so, we are of the view that the ends of justice would require that the order of dismissal of the writ petition as infructuous by efflux of time should be recalled. The appellant has challenged an order of termination. The cause of the appellant against the order of termination continues to survive and has not been rendered infructuous by lapse of time.
At this stage, it would be necessary to advert to a recent judgment of the Supreme Court in Himalayan Coop. Group Housing Society vs. Balwan Singh1 where the following principles have been laid down.
"Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the Court should be wary to accept such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the Court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights."
These principles would clearly stand attracted to the fact of this case. For these reasons, we allow the special appeal and accordingly set aside both the orders dated 1 November 2010 and 16 October 2015. Writ-A No. 18410 of 1993 is restored to the file of the learned Single Judge for disposal afresh. However, we clarify that we have not expressed any opinion on the merits of the rights and contentions of the parties in the writ petition which will have to be adjudicated upon by the learned Single Judge.
The special appeal is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 2.12.2015
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
Chief Justice's Court
Civil Misc. Delay Condonation Application No.406058 of 2015
In re :
Case :- SPECIAL APPEAL DEFECTIVE No. - 784 of 2015
Appellant :- Om Prakash Chaubey
Respondent :- District Inspector Of Schools & Another
Counsel for Appellant :- Shankar Bhagwan Singh,Raj Nath Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
The writ petition was dismissed on 1 November 2010 on the statement of the counsel for the appellant that it was infructuous by efflux of time. The appellant filed an application seeking recall of the order on 4 November 2011. The recall application was dismissed on 16 October 2015. The special appeal has been lodged on 16 November 2015. The special appeal is against both the order dated 16 October 2015 and the earlier order dated 1 November 2010. As against the earlier order, the Registry has reported a delay of 4 years and 350 days. Since the appellant was bona fide pursing the remedy of a recall application, we deem it appropriate in the interest of justice to condone the delay.
The application is accordingly disposed of. There shall be no order as to costs.
Order Date :- 2.12.2015
VMA
(Yashwant Varma, J.) (Dr. D.Y. Chandrachud, C.J.)
