TaxTMI 
TaxTMI 
2008 (10) TMI 639
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....nt 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, 1976. 4. The respondent raised an industrial dispute. The parties, however, settled the matter on February 15, 1977 pursuant to which 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. 5. This 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 a....
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....ho 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. 12. We have heard learned counsel for the parties. 13. The 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 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. 14. It 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 accor....
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....icient ground, was made out for recalling of the order, the application was rightly rejected by the High Court. 21. Even 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. 22. Having 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, 1980 and was pending for final hearing. Orders were passed from time to time between 2004 and 2006. 23. The 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. Order reserved. April 19, 2006 Sd/- Judge (emphasis supplied) 24. From the &nb....
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....isturbing 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 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 ....
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....g 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". 33. In 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 Supp(3)SCC 256]. 34. From 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 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 ....
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....06 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 the same." 37. In 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 ....
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.... `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 dismissed. Explanation--Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Hearing appeal ex parte.--Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. (emphasis supplied) 42. Explanation 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. 43. In Objects and Reasons it was stated; Clause 90--Sub-clause (viii).--When an Appellate Court does not dismiss an appeal summarily, it should fix a date for the hearing of the appeal. ....