The Sec. Deptt. of
Hort. ,Chandigarh & ANR. Vs. Raghu Raj  INSC 1773 (17 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6142 OF 2008 ARISING OUT
OF SPECIAL LEAVE PETITION (CIVIL) NO. 1583 OF 2007 THE SECRETARY, DEPARTMENT OF
HORTICULTURE, CHANDIGARH & ANR. ... APPELLANTS VERSUS
C.K. THAKKER, J.
present appeal is filed by the Department of Horticulture, Chandigarh and
another (appellants herein) against the judgment and the decree passed by the
Court of Senior Sub Judge with Enhanced Appellate Powers, Chandigarh on January
30, 1980 in Civil 2 Appeal No. 41 of 1979 and confirmed by the High Court on
April 26, 2006 in Second Appeal No. 2473 of 1980 as also an order, dated
September 01, 2006 rejecting an application to recall the said order.
stated the facts of the case are that Raghu Raj-respondent herein, was
appointed by the Executive Engineer, Horticulture Division, Chandigarh as
`beldar' on purely temporary basis. Initial appointment was made in 1969 and
after sometime, he was discontinued. Again, fresh appointment was given in
1972. It was expressly stated when the respondent was appointed that his
services were liable to be terminated at any time without notice or reason.
According to the appellant, the services of the respondent were not found to be
satisfactory and accordingly his services were terminated on September 18,
respondent raised an industrial dispute. The parties, however, settled the
matter on February 15, 1977 pursuant to which 3 the respondent was reinstated
in service with effect from February 19, 1977. The respondent- workman was
placed on probation for a period of six months. According to the appellants,
again the services of the respondent were found to be unsatisfactory. His
services were, therefore, terminated by an order dated August 12, 1977.
time, the respondent-workman, instead of moving Industrial Forum, approached a
Civil Court by instituting a suit in the Court of Sub Judge, Chandigarh. It was
registered as Case No. 153 of 1977. The learned Judge, by a judgment and
decree, dated May 25, 1979, dismissed the suit filed by the plaintiff. The
Court held that the impugned order of termination of services of the plaintiff
was "perfectly valid and legal" and that the order was passed in
accordance with terms and conditions of the appointment order.
aggrieved by the decree passed by the trial Court, the respondent-workman
preferred Civil Appeal No. 41 of 1979. The 4 Court of Sub-Judge with Enhanced
Appellate Powers(appellate Court) allowed the appeal, set aside the decree
passed by the trial Court and held that what was stated in the order of
termination was that the work as well as conduct of the respondent was
unsatisfactory conduct would amount to `stigma'. Since no notice was issued to
the employee, nor any explanation was sought from him, nor an opportunity of
being heard was afforded, the order was liable to be set aside being violative
of principles of natural justice. Accordingly, the order was declared null and
void and inoperative and a decree was passed holding that the
respondent-plaintiff was deemed to be in service and was entitled to all
benefits of salary, increments and other allowances. The amount comes to few
lakhs of rupees.
and dissatisfied with the decree of the lower appellate Court, the appellants
herein preferred a second appeal 5 under Section 100 of the Code of Civil
Procedure, 1908. The appeal was registered as Regular Second Appeal No. 2473 of
1980 and was admitted on November 11, 1980. By a judgment and order dated April
26, 2006, the appeal was dismissed on merits.
judgment itself recites;
"None for the
behalf of the respondent, however, an advocate appeared. The appeal was
dismissed with costs and the judgment and the decree passed by the learned
Senior Sub-Judge (appellate court) was confirmed.
appellants, on September 13, 2006, filed an application for recall of the
order, dated April 26, 2006 dismissing the appeal with a prayer to rehear the
matter. But the said application was also dismissed by the High Court on
October 1, 2006. Both the orders are challenged in the present appeal.
January 19, 2007, the Special Leave Petition was posted for admission hearing.
Notice was issued. In the notice itself it was stated that it was issued on the
limited question as to why the order passed by the High Court should not be set
aside and the matter be remitted to the High Court for fresh disposal in
accordance with law after hearing both the parties. The respondent was served
who appeared through an advocate and also filed a counter- affidavit. The
matter was ordered to be placed for final hearing and accordingly it has been
placed before us.
have heard learned counsel for the parties.
learned counsel for the appellant submitted that the High Court committed an
error of law and of jurisdiction in dismissing the appeal filed by the
appellants herein in absence of the advocate and without hearing him. It was
submitted that the Second Appeal was filed in 1980. It was admitted and was pending
for final disposal. For more than two decades, it did not come up for hearing.
In 7 2006, the appeal was placed for final disposal.
The learned advocate
for the appellants could not remain present and the High Court dismissed the
appeal on merits. As soon as the appellant came to know about ex-parte
dismissal of appeal, an application to recall the order was filed but it was
also rejected by the Court. It was, therefore, submitted that the orders passed
by the High Court deserve to be set aside.
was also contended that the High Court could not have dismissed the appeal on
merits in absence of the advocate. The appeal was admitted in 1980. In
accordance with the provisions of the Code, at the most, the appeal could have
been dismissed "for appellants' default" and not on merits. On that
ground also, the impugned orders are vulnerable.
was submitted by the learned counsel, that the appellants had engaged an
advocate. They were, therefore, under the impression that the lawyer will take
care of 8 the case and will appear as and when the appeal will be called out
for hearing. Even if it is assumed that there was default on the part of the
advocate in not appearing at the time of hearing, the appellant should not
suffer. For that reason also, the appeal should be allowed and rehearing should
counsel also submitted that Civil Court had no jurisdiction in the matter and
the case, could not have entertained, dealt with and decided by granting
reinstatement and payment of back-wages which was really an `industrial
dispute'. The decrees passed by the Courts below are, therefore, without
counsel submitted that even on merits, the order terminating the services of
the respondent-workman was legal, valid and lawful. The workman was not found
`suitable' and, hence, his services were terminated in accordance with terms
and conditions of the 9 order of appointment and no fault can be found against
all these grounds, the counsel submitted that the orders passed by the High
Court against the appellants are liable to be set aside by remitting the matter
to the High Court for fresh disposal in accordance with law.
learned counsel for the respondent-employee, on the other hand, supported the
decree passed by the lower appellate Court and confirmed by the High Court. It
was urged that the appeal was ordered to be placed for final hearing and it was
on Board. Appearance of the learned advocates for the parties was shown. The
counsel for the appellant did not remain present. The High Court was,
therefore, fully justified in proceeding with the matter and in dismissing it.
respondent has filed an affidavit in this Court wherein it was mentioned that
the 10 arguments were heard on April 19, 2006 and the judgment was reserved
which was pronounced after one week i.e. on April 26, 2006. There was inaction,
negligence and carelessness on the part of the appellant for which the
respondent-workman should not suffer. Since no ground, much less sufficient
ground, was made out for recalling of the order, the application was rightly
rejected by the High Court.
on merits, the lower appellate Court was right in allowing the appeal filed by
the respondent-employee and in declaring the order null and void being
stigmatic in nature.
It was, therefore,
submitted that the appeal deserves to be dismissed.
heard learned counsel for the parties and giving anxious considerations to the
rival contentions, in our opinion, the appeal deserves to be allowed. We had
called for the records and proceedings of the case and perused them. From the
record, it is clear that the second appeal was admitted on November 11, 11
1980 and was pending for final hearing. Orders were passed from time to time
between 2004 and 2006.
order dated April 19, 2006, passed by the Court reads as under;
R.S.A. No. 2473 of
1980 Present:- None for the appellant.
Ms. Alka Sarin,
Advocate for the respondent *** Arguments heard.
April 19, 2006 Sd/-
Judge (emphasis supplied)
the above order, it is amply clear that on 19th April, 2006 when the arguments
were heard, none was present for the appellants.
on April 25, 2006, the Court passed the following order:
R.S.A.No. 2473 of
1980 Present : None.
12 In this RSA,
which was put up before the undersigned for the first time on 19th April, 2006,
it has transpired that the substantial question of law had not been framed.
List the appeal for
re-hearing for 26.4.2006.
April 25, 2006 Sd/-
Judge (emphasis supplied)
April 26, 2006, again the matter was placed on the board and as stated above,
it was dismissed in absence of the appellants or their counsel.
it cannot be gainsaid that an advocate has no right to remain absent from the
Court when the case of his client comes up for hearing. He is duty bound to
attend the case in Court or to make an alternative arrangement.
Court without `sufficient cause' cannot be excused. Such absence is not only
unfair to the client of the advocate but 13 also unfair and discourteous to
the Court and can never be countenanced.
the same time, however, when a party engages an advocate who is expected to
appear at the time of hearing but fails to so appear, normally, a party should
not suffer on account of default or non-appearance of the advocate.
Rafiq & Anr. V. Munshilal & Anr., (1981) 2 SCC 788, the High Court
disposed of the appeal preferred by the appellant in absence of his counsel.
When the appellant came to know of the fact that his appeal had been disposed
of in absence of the advocate, he filed an application for recall of the order
dismissing the appeal and to permit him to participate in the hearing of the
appeal. The application was, however, rejected by the High Court, inter alia,
on the ground that there was no satisfactory explanation why the advocate
remained absent. The aggrieved appellant approached this Court.
the appeal setting aside the order passed by the High Court and remanding the
matter for fresh disposal in accordance with law, this Court stated;
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
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 no part
of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High
Court of Allahabad amongst the lawyers that they remain absent when they do not
like a particular Bench. Maybe he is better informed on 15 this matter.
Ignorance in this behalf is our bliss. Even if we do not put our seal 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 and 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. Therefore, we
allow this appeal, set aside the order of the High Court both dismissing the
appeal and refusing to recall that order. We direct that the appeal be restored
to its original number in the High Court and be disposed of according to
Smt. Lachi Tewari & Ors. v. Director of Land Records & Ors, 1984 Supp.
SCC 431, rule nisi was issued by the High Court in the petition filed in 1976.
After seven years, the matter was placed for hearing of rule nisi in 1983. It
was the first day of reopening of Courts after holidays. The petitioner had
engaged three advocates. None of them, however, was available when the matter
was called out.
The High Court
dismissed the petition and discharged rule since none appeared to press the
petition for the petitioner. An application was moved on behalf of the
petitioner for recalling of the order and restoration of the petition which was
rejected. The petitioner came to this Court.
aside the order and remanding the matter to the High Court for fresh disposal
and reiterating the law laid down in Rafiq, this Court said;
narration of facts would suffice to focus attention on what point is involved
in this appeal.
17 The petitioner
obtained rule nisi in 1976 and waited for seven years for its being heard.
Suddenly one day the High Court consistent with its calendar fixed the matter
for hearing on April 21, 1983. The petitioner had taken extra caution to engage
three learned Counsels. We fail to see what more can be expected of him.
Further we fail to understand what more steps should have taken in the matter
to avoid being thrown out unheard".
Mangi Lal & Ors. v. State of M.P., (1994) 4 SCC 564, an appeal against
conviction recorded by the trial Court was dismissed by the High Court for
non-appearance of counsel for the appellant due to `strike' by lawyers.
This Court held that
dismissal of appeal by the High Court was improper. The appeal was directed to
be restored to file and be heard on merits. [see also Tahil Ram Issardas
Sadaranganj & Ors. v. Ramchand Issardas Sadaranganj & Anr., 1993
the case law referred to above, it is clear that this Court has always insisted
advocates to appear and argue the case as and when it is called out for
hearing. Failure to 18 do so would be unfair to the client and discourteous to
the Court and must be severely discountenanced. At the same time, the Court has
also emphasized doing justice to the cause wherein it is appropriate that both
the parties are present before the Court and they are heard. It has been noted
by the Court that once a party engages a counsel, he thinks that his advocate
will appear when the case will be taken up for hearing and the Court calls upon
the counsel to make submissions. It is keeping in view these principles that
the Court does not proceed to hear the matter in absence of the counsel.
the circumstances, in our opinion, the submission of the learned counsel for
the appellants has substance that the High Court ought not to have decided the
appeal in absence of the appellants' counsel.
the present case, the learned advocate, appearing for the appellants, has 19
filed an affidavit in support of the recall application. In para 1, it was
"That the above
named Regular Second Appeal was pending before this Hon'ble Court for regular
hearing and was listed on various dates from time to time but could not be
decided for one reason or the other and was thereafter even de-listed. Lastly,
on perusal of the cause list, it has been noticed that the aforesaid Regular
Second Appeal was added in the regular matters on 17.04.2006 at Serial No.304
before the Hon'ble Bench of Mr. Justice S.D. Anand at page 240 of the Regular
Cause List. Alongwith the case at page 240 of the cause list, the names of the
earlier counsels for the appellants as well as of the respondent were mentioned
and the name of the present counsel for the appellant was mentioned on the next
page i.e. at page 241 of the cause list and therefore, the listing of the
matter escaped the notice of the counsel for the appellant.
matter was heard by this Hon'ble Court in the absence of the counsel for the
appellant on 19.04.2006. Even on 19.04.2006 (Wednesday), it is only the serial
number of the aforesaid case i.e. Sr. No.304 was mentioned in the Cause List
for taking up for hearing and therefore even on 19.04.2006, it escaped the
knowledge of the counsel for the appellant in the absence of giving of details
of the case and the name of the counsel. It is only when the respondent asked for
the implementation of the judgment passed 20 by this Hon'ble Court that the
counsel for the appellant immediately thereupon inspected the cause list and
noticed the aforesaid facts and applied for the certified copy of the judgment
on 07.09.2006 which is yet to be received and after getting the un- certified
copy of the judgment, is filing the present application for the recalling of
para 2, the deponent stated;
"That the non
appearance of the appellants/applicants and their counsel before this Hon'ble
Court when the matter was taken up for regular hearing was totally
un-intentional and for the reasons explained above which are totally bona fide.
Otherwise, the appellants have a good case on merits as the Regular Second
Appeal is against the judgment of reversal and in view of the law settled on
the point to the effect that the Civil Court has no power to grant back wages
with reinstatement as the specific remedy for the grant of the same is provided
under the Industrial Disputes Act, 1947. Although, a specific issue to this
effect was framed before the courts below yet the same some how escaped the
knowledge of this Hon'ble Court and the counsel for the respondent also failed
to point out the same in the interest of justice and for fair play. In fact
this was the substantial question of law before this Hon'ble Court which
remains undecided. Even under Order 41 Rule 17, the appeal in the absence of
the appellant ought to have been dismissed 21 in default instead of being
decided on merits. Therefore, it would be in the interest of justice, if the
judgment dated 26.04.2006 is recalled and the appeal is readmitted for
have already extracted, various orders passed by the High Court from time to
time. It is clear from the order dated April 19, 2006 that at the time of
hearing of arguments, the learned counsel for the appellant was not present.
The arguments were heard, i.e., the arguments on behalf of the
respondent-workman were heard and the order was reserved. But, in the subsequent
order dated April 25, 2006, the learned Judge who had heard the matter on April
19, 2006 noticed that a substantial question of law had not been framed while
admitting the appeal. The learned Judge, therefore, ordered listing of the
appeal for rehearing on April 26, 2006 and accordingly, the matter was posted
for hearing on April 26, 2006.
that day, i.e. on April 26, 2006, the learned Judge framed substantial question
of law and heard learned counsel for the respondent-workman. Learned counsel
for the appellant was not present. It is thus clear that substantial question
of law was framed by the Court during the course of hearing of Second Appeal
for the first time on April 26, 2006.
the facts and in the circumstances in their totality, in our opinion, even
though the learned counsel for the appellant was not present, it would have
been appropriate, had the High Court granted an opportunity to the learned
counsel for the appellant to make his submissions by adjourning the matter.
was also urged that the appeal was admitted in 1980 and was pending for final
hearing. Such appeal could not have been dismissed on merits in absence of
learned counsel for the appellant. In this connection, reference may be made to
Order XLI of the Code 23 which lays down procedure for hearing of `Appeals
from Original Decrees'. Rules 1 to 4 deal with `Form of Appeal', grounds to be
taken in `Memorandum of Appeal' `Application for Condonation of Delay', etc.
Rules 5 to 8 relate to `Stay of Proceedings and of Execution'.
Whereas Rules 9 to 15
provide for `Procedure on Admission of Appeal', Rules 16 to 29 deal with
`Procedure on Hearing'. Once an appeal is admitted, Rules 16 onwards of Order
XLI would apply. Rule 17 provides for `Dismissal of Appeal for Appellant's
Default'. It reads thus;
17. Dismissal of
appeal for appellants' default (1) Where on the day fixed, or on any other day
to which the hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the Court may make an order that the appeal be
in this sub-rule shall be construed as empowering the Court to dismiss the
appeal on the merits.
24 (2) Hearing
appeal ex parte.--Where the appellant appears and the respondent does not
appear, the appeal shall be heard ex parte.
to Rule 17 of Order XLI was inserted by the Code of Civil Procedure (Amendment)
Act, 1976. Before insertion of Explanation to Rule 17, there was difference of
opinion among various High Courts whether an appellate Court had right to
dismiss an appeal on merits if the appellant fails to appear.
Taking note of
cleavage of opinion, the provision of amended and Explanation was added.
Objects and Reasons it was stated;
(viii).--When an Appellate Court does not dismiss an appeal summarily, it
should fix a date for the hearing of the appeal. The procedure therefore is
provided in Rule 17 which provides that where on the day fixed, or on any other
day to which the hearing may be adjourned, the appellant does not appear when the
25 appeal is called on for hearing, the Court may make an order that the appeal
is dismissed. In this rule the word `may' shows that apart from dismissal of
the appeal for default, the Court can pass other orders. One such order could
be adjournment of the appeal. There is, however, a conflict of decision on the
question whether, if the appellant does not appear, the Appelalte Court can
dispose of the appeal on the merits. The Allahabad High Court has held that a
decision on the merits is permissible. But the other High Courts have taken a
different view. - Having regard to the conflict of decisions, Rule 17 is being
made more explicit by adding an Explanation thereto to the effect that
dismissal of an appeal on merits would not be permissible".
is true that in the instant case, the appeal before the High Court was not an
Appeal from Original Decree (First Appeal), but an Appeal from Appellate Decree
(Second Appeal). But Rule 1 of Order XLII which deals with Appeals from
Appellate Decrees (Second Appeals) lays down procedure and expressly states
that the Rules of Order XLI shall apply 26 so far as may be to Appeals from
Appellate Decrees. Prima facie, therefore, it appears that once an appeal is
admitted and is placed for hearing i.e. hearing on merits, it can be dismissed
for default but cannot be decided on merits in absence of appellant (or his
view of the fact, however, that in our opinion, on the facts in their entirety,
the High Court ought not to have proceeded to decide the appeal, we hold that
the impugned order of the High Court is liable to be set aside. In view of this
conclusion, we clarify that we may not be understood to have expressed final
opinion one way or the other as regards interpretation of Rule 17 of Order XLI
read with Rule 1 of Order XLII.
the order passed by the High Court deserves to be set aside on a short ground
and the matter is remitted to the High 27 Court for fresh disposal in
accordance with law, we refrain from expressing any opinion one way or the
other on merits of the matter as well. As and when the matter will be placed
for hearing before the High Court, the Court will pass an appropriate order
after hearing the parties.
the foregoing reasons, the appeal is allowed. The orders passed by the High
Court dismissing the Second Appeal as also dismissing the Recall Application
are hereby set aside and the matter is remanded to the High Court for fresh
disposal in accordance with law after hearing the parties.
the respondent-workman was required to appear in this Court pursuant to the
notice issued by the Court and had to incur expenses, in our opinion, ends of
justice would be met if the appellants are directed to bear costs of the
respondent-workman which is 28 quantified at Rs.20,000/-. The said amount will
be paid by the appellants herein by a crossed bank draft in favour of the
respondent-workman within four weeks from today. The said fact will then be
brought to the notice of the High Court by the appellant and only thereafter
the High Court will proceed to hear the matter.
appeal is allowed to the extent indicated above.