Delhi High Court
M/S Ocean Knit Fab Inner Wear vs Sunil Gupta on 13 July, 2022
$~48(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 127/2022 & CM No.6257/2022
M/S OCEAN KNIT FAB INNER WEAR ..... Petitioner
Through: Mr. Deepanshu Choithani, Mr.
Mayant Pachauri and Mr. Shivam Gupta,
Advs.
versus
SUNIL GUPTA ..... Respondent
Through: Mr. Ramjee Pandey, Adv.
CORAM:
HON' BLE MR. J USTICE C. HARI SHANKAR
J UDGMENT (ORAL)
% 13.07.2022
1. This petition under Article 227 of the Constitution of India
assails orders dated 13th January, 2020 and 15th November, 2021
passed by the learned Presiding Officer, Labour Court (hereinafter
referred to as "the learned Labour Court").
2. These orders read thus:
Order dated 13th January, 2020
13.01.2020
Present: Mr. Markandey Shukla, AR for Workman.
None for management.
WW1 Sh. Nikhil Jha is present.
None appeared on behalf of management.
It is 1pm. Management is proceeded exparte
for today.
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:07:55
WW1 is examined and discharged.
It is submitted on behalf of workman that no
other witness is to be examined.
Workman evidence is closed.
List the matter for management evidence for
22.2.2020.
Copy of affidavit of witnesses be supplied in advance
to opposite party.
(Anil Kumar)
Presiding Labour Court XVI
Rouse Avenue Courts, New Delhi
13.1.2020"
Order dated 15th November, 2021
Date:15/11/2021
Matter has been taken up for physical hearing pursuant
to Order No.798/RG/DHC/2021 dated 29/10/2021 of Hon'ble
High Court of Delhi followed by Order No.Power
Gaz/RACC/2021/25523-25622-C dated 29/10/2021 of Ld.
Principal District & Sessions Judge-cum-Special Judge (PC
Act) (CBI), Rouse Avenue Court Complex, New Delhi.
Present: Shri Markandey Shukla, AR for workman.
Ms. Mansi, Intern for Shri Vijay Kumar Bhasin for
management.
Adjournment is sought on the ground that AR/counsel
for management is unwell.
Adjournment sought is strongly opposed by AR for
workman.
Submissions heard.
Examination-in-chief of Shri Nikhil Jha (son/LR of
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:07:55
workman) was recorded on 13/01/2020 whereas application
dated 18/11/2020 seeking opportunity to cross-examine the
witness was physically filed on record on 03/02/2021 wherein
Shri Ghanshyam Khandelwal, Proprietor M/s Ocean Knit Fab
Inner Wear has averred that having appeared on 22/02/2020
he was shocked to know that AR/counsel for management did
not appear in the court on 13/01/2020.
There is no dispute on the principle of law that a
litigant should not be made to suffer for the fault of his
counsel however mere engaging a counsel does not absolve
the party of his/her duty to diligently pursue the case as held
in 'Indian Sewing Machine Co. Pvt. Ltd. Vs. Sansar
Machine Ltd. & Anr.' (1994) 56 DLT 45.
Application under Rule 10B sub-rule (9) of Industrial
Disputes (Central) Rules 1957 read with Order IX Rule 7
CPC on behalf of management is therefore dismissed.
Matter is adjourned to 20/12/2021 for final arguments.
Sd/-
(Tarun Yogesh)
POLC-08/RADC, New Delhi
Dt.15/11/2021"
3. The application filed by the petitioner, as the respondent before
the learned Labour Court, seeking setting aside of the decision to
proceed against the respondent ex parte on 13th January, 2020 and an
opportunity to cross examine WW-1, specifically states that the
petitioner was unaware of the fact that his Counsel had not appeared
before the learned Labour Court on 13th January, 2020. Invoking the
principle that a litigant should not be punished for default of his
Counsel, the petitioner sought an opportunity to cross examine WW-1.
4. That application stands rejected by the subsequent order dated
15th November, 2021. Interestingly, the learned Labour Court has,
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:07:55
even while rejecting the application, acknowledged, in one breath, the
principle that a litigant should not be made to suffer for a fault of his
Counsel and in the very next, commented that mere engaging of a
Counsel would not absolve a party of his duty to diligently pursue his
case.
5. It is not necessary to enter into all these aspects. Admittedly,
the Counsel was absent only on one occasion i.e. on 13th January
2020.
6. The right to effectively prosecute a proceeding is part of the
fundamental right to avail legal remedies. Effective prosecution of a
proceeding involves, within itself, the right to lead evidence as well as
to counter the evidence led by the opposite party.
7. As such, given the fact that there is no inordinate or
contumacious default on the part of the petitioner I am of the opinion
that the learned Labour Court ought to have acceded to the petitioner's
request for one opportunity to cross examine WW-1.
8. In view thereof, without commenting further on the present
dispute, this petition is disposed of with a direction to the respondent
to make WW-1 available for cross examination by the petitioner on
the next date before the learned Labour Court which is stated to be
23rd July, 2022. On the said date, the petitioner should be prepared
and ready to cross examine WW-1. No further date would be given
for the said purpose.
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:07:55
9. This petition stands disposed of in the aforesaid terms.
10. The petitioner is also directed to pay costs of ₹ 5,000/- to the
respondent on or before the next date of hearing.
C. HARI SHANKAR, J .
J ULY 13, 2022/kr
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:07:55
