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2009 DIGILAW 604 (JHR)

Ramesh Prasad Gupta v. State Bank of India

2009-04-22

D.K.SINHA

body2009
JUDGMENT 6/22.4.2009 This appeal has been filed against the order dated 26.11.2008 passed by the learned Single Judge in Civil Review No.35/2008, by which the review petition was dismissed on the ground that the order passed in the writ petition, against which the review petition was filed, was an order passed with the consent of the counsel appearing for the petitioner, who had agreed to withdraw the writ petition since the relief with regard to the claim of back wages, was partially granted to the petitioner. 2. To explain the controversy, the salient facts which may be essential for disposal of this appeal, are to the following effect: The petitioner was dismissed from service on the charge that he had income disproportionate to his known sources and he was conducting business in the name of his wife, while discharging duties as a Guard in the respondent State Bank of India. In view of the charge, which was found to have been established, an order of dismissal was passed, which he had assailed by way of a writ petition. The writ petition was allowed and the order of dismissal was set aside, against which an appeal was preferred by the respondent Bank and the matter was remanded by the Appellate Court to the appellate authority being the disciplinary authority. The disciplinary authority, after considering the matter, set aside the order of dismissal but did not grant back-wages to the petitioner. The petitioner, therefore, filed another writ petition against the denial of back-wages before the learned Single Judge claiming back-wages. The said writ petition was dismissed with a clarification that the petitioner will be deemed to have remained under suspension between the dates of his dismissal till the date of his reinstatement which meant that he will be paid 50% of the back wages equivalent to subsistence allowance for the said period treating him under suspension. This order was passed with consent of the counsel for the petitioner, Ms. Rita Kumari, and it was recorded that the petitioner is satisfied with the said clarification and she may be permitted to withdraw the writ petition. This order was passed with consent of the counsel for the petitioner, Ms. Rita Kumari, and it was recorded that the petitioner is satisfied with the said clarification and she may be permitted to withdraw the writ petition. Curiously, the petitioner thereafter filed a review petition and challenged the aforesaid order stating therein that the withdrawal of the writ petition by his counsel was improper and breach of faith as the same should not have been withdrawn since he had not given his consent forgoing the back-wages which was denied by the disciplinary authority. However, the review petition was dismissed. Hence, this appeal has been preferred against the order passed in the review petition dismissing the same under the aforesaid circumstance. 3. Learned counsel for the appellant vehemently urged that even if the counsel for the petitioner/appellant herein had withdrawn the appeal due to inadvertence and misunderstanding, the same ought not to have been given weight-age on the averment of the counsel for the petitioner/appellant and the learned Single Judge should have considered the matter on merit as to whether back wage was wrongly denied to him. 4. We, however, do not feel persuaded to accept this submission that even though the counsel had with drawn the writ petition after partial relief was granted to the petitioner and he was entitled to 50% of back wages by treating the period of his dismissal as period under suspension, review should have been entertained on the ground that the same was accepted by the counsel without proper instruction from his client, i.e. the petitioner/appellant herein. 5. 5. The entire edifice of the judicial system is based on faith, which is reposed by the Court, not merely on the pleadings which is incorporated in the writ petition, but also on the oral submission, which is advanced before the Court by the counsel and if the party, who is represented by his counsel, subsequently after engaging another counsel, assails the action of the previous counsel stating that he had not instructed his counsel to put forth a particular submission before the Court or concede to some suggestion or averment, the same would clearly be contrary to the terms and conditions incorporated in the 'Vakalatnama' executed by the party in favour of his Advocate to act and plead on his behalf before the Court and the same cannot be allowed to be challenged at least in absence of any certificate by the previous Advocate or any of the affected party alleging violation of his instruction. This complaint in any case would be a matter of enquiry to be lodged by the party before the appropriate disciplinary authority of the Bar Council. 6. In the instant matter, the counsel for the petitioner withdrew the writ petition when relief was partially granted to the petitioner and subsistence allowance was allowed by treating the period of his dismissal as the period under suspension, in spite of the fact that the order of dismissal was operative even during that period. That, according to the counsel, was the best course to be adopted in favour of his client during the period. Therefore, it was not permissible for the petitioner to file a petition for review and assail the action of the counsel stating that he had not instructed his counsel to withdraw the writ petition and the writ petition should have been considered on merit, clearly ignoring the fact that he was bound by the terms and conditions of the 'Vakalatnama' under which he was bound by action of his Advocate. 7. Hence, the review petition was rightly not allowed by the learned Single Judge as the petition for review to assail the action of his counsel could not have been entertained even in absence of any affidavit by the defending Advocate to that effect and as such, the appeal against the same cannot be entertained as we concur with the view taken by the learned Single Judge. 8. 8. Besides this, we have noticed that the appellant had an alternative remedy of filing an appeal against the order by which his period of dismissal was treated as period of suspension by virtue of which also he would have been entitled only to 50% of the amount by way of subsistence allowance. In spite of this, if the appellant was aggrieved, he had a remedy by way of an appeal and therefore, there was no reason for him to file a petition for review on merit and in so far as his grievance against his counsel is concerned, we have stated that the counsel, having received the relief, even though it was partial in nature, in favour of her client, withdrew the writ petition, the petitioner should not have been allowed to assail the action of his counsel on the ground that he/she committed a grave error by agreeing to withdraw the writ petition as the relief was partially granted to him. As we have already stated that the counsel had liberty to act on behalf of his/her client to suit the best interest of his client by virtue of the power granted to him/her under the terms and conditions incorporated in the Vakalatnama, the petitioner/appellant is legally not entitled to challenge the same although he may assail the action of his lawyer before the appropriate forum, where the onus would be on him, to establish his case. For all these reasons, we find no merit in this appeal. Consequently it is dismissed.