Koutons Retail India Ltd. vs Shiv Kumar Pandey & Anr.
2008 Latest Caselaw 1777 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.8916/2007

%                             Date of Decision : September 29, 2008

Koutons Retail India Ltd.                              ... Petitioner

                                Through : Mr. Surya Kant Singhla,
                                      Mr. Sumesh Gulati &
                                      Mr. Shanto Mukherjee,
                                      Advocates

                                  Versus

Shiv Kumar Pandey & Anr.                               ...Respondents

Through : Nemo

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

SUDERSHAN KUMAR MISRA, J :

1. The petitioner assailing the award passed by the Labour

Court V, Karkadooma, Delhi in ID No.140/2005 on 03.03.2006

whereby the respondent No.1 was awarded reinstatement with

continuity in service with full back wages at the rate of last

drawn wages of Rs.2,863/- per month, or the minimum wages

fixed for that post by the appropriate government from time to

time. The petitioner has also assailed the order dated

9.11.2006 of the Labour Court whereby, the applications for

setting aside the aforesaid order dated 3.3.2006 were

WP(C) No.8916/2007 Page 1 of 10 dismissed.

2. The respondent workman was working with the petitioner

management as a helper. The petitioner vide letter dated

11.08.2004 terminated/ retrenched the respondent workman on

the ground that his performance and conduct was not

satisfactory. A cheque of Rs.6,161/- dated 10.08.2004 was also

enclosed with the aforesaid letter by the petitioner towards full

and final settlement of the accounts with the respondent

workman. However, the said letter and cheque, which were

posted by the petitioner to the respondent workman, were

received back undelivered. Thus a dispute arose between the

respondent workman and the petitioner regarding his service

conditions. On failure of the conciliation proceedings, the

Secretary (Labour) Government of NCT of Delhi vide order

No.F.24(3363)/04-Lab./6006-10 dated 29.03.2005 made a

reference to the Labour Court in the following terms:-

"Whether Sh. Shiv Kumar Pandey S/o late Sh.Ramdhar Pandey have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notification and to what other relief is he entitled and what directions are necessary in this respect?"

Since no written statement was filed by the management in the

Labour Court despite repeated opportunities, its defence was

struck off on 14.02.2006. Thereafter, on 3.03.2006, on the

unrebutted testimony and corroborative documents filed by the

workman, the Labour Court passed the impugned award in

WP(C) No.8916/2007 Page 2 of 10 favour of the workman and against the petitioner management.

3. It is the petitioner's case that it had engaged counsel to

defend the matter before the Labour Court. However, its

counsel was negligent. He failed to pursue the matter on behalf

of the management. Its defence was struck off for non-filing of

its written statement. Ultimately, due to the negligence of its

counsel, these matters came to be decided against the

management. It appears that the petitioner has filed an

appropriate complaint before the Bar Council of India against

that counsel for his negligence. Counsel for the petitioner

management has drawn my attention to the letters written by

the petitioner to its advocate. In these letters, the petitioner has

taken serious objections to the lackadaisical attitude of its

advocate.

4. According to counsel for the petitioner the management

had engaged one Mr. Pranav Kanti, Advocate, 457, Civil Wing,

Tis Hazari Courts, Delhi to represent it before the Labour Court

in this matter. It is the petitioner's case that Mr. Kanti, Advocate

failed to effectively pursue these matters and was negligent.

My attention has been drawn to the copies of the order sheets

which, inter alia, state that on 19.10.2005 because the written

statement was not filed, a cost of Rs.100/- was imposed.

Thereafter, the matter was adjourned to 4.01.2006 and on

4.01.2006 also, since nothing was done and the previous costs

were not paid, another opportunity was given, subject to further

cost of Rs.250/-. It was also noted that in case of failure to

WP(C) No.8916/2007 Page 3 of 10 comply with this order, the defence of the management shall be

struck off and the matter was adjourned to 14.02.2006. On

14.02.2006, neither was the cost paid nor was the written

statement filed. Mr. Vivek Singh, whose presence is noted as

proxy counsel for Authorized Representative of the

management, requested the court to take up the matter at 2.15

p.m. Thereafter, since there was no appearance on behalf of the

management when the matter was taken up, its defence was

struck off and the matter was posted for workman's evidence on

2.03.2006. On 2.03.2006, it appears that there was no

appearance on behalf the management at all. On 3.03.2006, it

was noted that Mr. Vivek Singh who had appeared for the

management was aware of the fact that the defence of the

management was struck off. Arguments were addressed by the

representative of the workman which were not rebutted by Mr.

Vivek Singh. In reply, Mr. Vivek Singh simply stated that the file

was not available. Interestingly, it is also noted by the Labour

Court that Mr. Pranav Kanti, Advocate, who is the authorized

representative of the petitioner "was watching the proceedings

from outside the court and it was on his instructions that Mr.

Vivek Singh had made appearance in the case". Ultimately, the

award came to be passed on 3.03.2006 itself. According to the

petitioner, it received the copy of this award in the first week of

June,2006 and made enquiries from Mr. Pranav Kanti. It appears

that consequent upon this award having been passed, Mr.

Pranav Kanti, Advocate moved an application bearing M.A.

WP(C) No.8916/2007 Page 4 of 10 No.59/2006 dated 6.06.2006, where he had categorically stated

that the written statement drafted by the management has

already been given to Mr. Vivek Singh, Advocate, to be filed, and

that the cost imposed earlier was also given to be paid to the

opposite party; but due to the negligence of Mr. Vivek Singh,

this could not be done. Before this application was decided,

another application seeking amendment in the caption of the

former application, was filed. However, the Labour Court

dismissed the applications on 9.11.2006 on the ground that Mr.

Pranav Kanti was not the authorized representative of the

management and that his authority letter was not on record.

5. The petitioner claims to have made repeated attempts to

recover the records from Mr. Pranav Kanti. A letter dated

19.04.2007 was sent by the petitioner to Mr. Kanti, wherein the

petitioner has stated that its interest has been severely affected

as a result of the cases entrusted to him being decided against

the petitioner. It requested Mr. Pranav Kanti that all the

remaining records and documents connected with the petitioner

be immediately sent to the petitioner so that it could engage

another counsel and take appropriate remedial measures.

6. In the same context, the petitioner wrote another letter to

Mr. Kanti on 15.05.2007 giving details of the cases which were

being handled by Mr. Kanti on its behalf. In that letter, the

petitioner has also remonstrated with Mr. Kanti that its matters

had been grossly mismanaged and that some of the applications

moved for setting aside the award passed by the Labour Court

WP(C) No.8916/2007 Page 5 of 10 against the petitioner had themselves been dismissed in

default. The petitioner has expressed its anguish thus; "the

aforesaid is a case of total negligence on your part in spite of

the management paying you the retainership charges regularly.

Your negligence in the aforesaid matters goes to show your

incompetence in handling the Industrial Relation matters. It is

submitted that it was your ethical duty either not to take the

brief or refuse to accept the brief at the outset". This letter

contains the detailed facts pertaining to the negligence of Mr.

Pranav Kanti. The letter, inter alia, expresses shock at the fact

that Mr. Kanti had failed to file the written statement. This letter

has also been endorsed to the Bar Council of India for necessary

action as per law. It is in these peculiar circumstances, that the

petitioner has approached this court in September, 2007 for

setting aside the impugned award and ultimately after removal

of objections, the same has been placed before the court in

November, 2007.

7. According to the service report, respondent No.1 /workman

was duly served on 6.01.2008. There is, however, no

appearance on behalf of the said respondent/ workman.

8. Counsel for the petitioner urges that the petitioner

management duly engaged counsel to represent its interest

before the Labour Court, paid him the fee, and issued all

necessary instructions in that behalf. Unfortunately despite all

this, counsel engaged by it acted in the most careless and

negligent manner. He says that once the petitioner became

WP(C) No.8916/2007 Page 6 of 10 aware of the negligence of the counsel appointed by it, it

immediately tried to take remedial steps. It has also gone to

the extent of sending intimation about the conduct of counsel to

the Bar Council of India for taking necessary steps as per law.

Counsel for the petitioner states that under the circumstances,

as the interest of the petitioner management has suffered for no

fault and for reasons beyond its control, solely attributable to

the negligence of its Advocate, the petitioner should be given

liberty to defend the case on merits before the Labour Court.

9. The counsel for the petitioner has relied on Rafiq Vs.

Munshilal (1981) 2 SCC 788 in support of his contention that

a litigant should not be made to suffer for the inaction,

deliberate omission and misdemeanor of his advocate. In that

case the Supreme Court stated as follows;

"3. 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 not part of his job..... Even if we do not put our seal

WP(C) No.8916/2007 Page 7 of 10 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 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. Maybe 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......"

10. Similar observations were made by the Supreme Court in

Lachi Tewari Vs. Director of Land Records 1984 Supp SCC

431. This Court in Info Edge (India) Ltd & Ors Vs. Mr.

Sanjeev Goyal 2007 (10) AD(Delhi) 461 relying on Rafiq

Vs. Munshilal (supra) held that,

"19. This cannot be disputed that in certain circumstances, a party cannot be allowed to suffer for misdemeanor or inaction of his counsel...."

11. In Sh. Sanjay Kumar Vs. Smt. Sita Rani Khanna IA

Nos. 2143 and 13308/2006 in CS(OS) No. 1056/1998

decided on 18.09.2007 this Court again held that,

"15. .....a party who has selected his advocate, briefed him and paid his fee can remain confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him to look after his case, should not be made to

WP(C) No.8916/2007 Page 8 of 10 suffer for inaction, deliberate omission or misdemeanor of his counsel....."

12. The Bombay High Court in Nanded Nagarpalika Dukan

Vyapari Sangathan Vs. Nanded Waghala City Municipal

Corpn (2003) 105 BOMLR 275 whilst observing that it is a

well settled position that an innocent party, who has done

everything in his power should not suffer for the inaction of or

misdemeanor of his counsel, restored the matter to its original

position before the Lower Appellate Court. Similarly a Division

Bench of the Andhra Pradesh High Court in M. Sanjeeva Reddy

Vs. A.P Administrative Tribunal, Hyderabad & Ors 2001

(3) ALT 285 remitted the matter to the Tribunal for fresh

consideration for the reasons that the litigant should not suffer

for the lapse on the part of the counsel, and should be given an

opportunity of being heard.

13. To my mind, this is also a case where the petitioner

appears to have been a victim of the inaction, negligence and

misdemeanor of its counsel, who has conducted himself in a

very unprofessional manner in this case. The conduct of the

counsel is also clear from the observations made by the Learned

Labour Court in its orders. Furthermore, the fact remains that

even though the award against the petitioner was passed in the

presence of its counsel, he did not inform his client, i.e. the

petitioner, about this. Counsel for the petitioner also failed to

inform his client about the fate of its applications for setting

aside the ex parte award. It is noteworthy that as soon as it

came to the petitioner's knowledge that the said applications

WP(C) No.8916/2007 Page 9 of 10 have been dismissed, steps were taken by it to get all the

relevant records of the cases from its counsel. In addition, the

petitioner even filed a complaint against its counsel with the Bar

Council of India.

14. Under the circumstances, I am of the opinion that the

petitioner should not be made to suffer for the inaction and

negligence of the petitioner's counsel. It deserves to be given a

fair opportunity to present and defend its case.

15. Consequently, impugned award dated 3.3.2006 and the

order dated 9.11.2006 in ID No.140/2005 is set aside, the

matter is remanded to the Labour Court for decision afresh after

issuing the requisite notice to all parties and proceeding with

the matter de novo from there. The Labour Court is directed to

deal with and decide the matter within six months from today.

16. The writ petition is disposed of.

                                     Sudershan Kumar Misra, J

September 29, 2008
Ib/mb




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