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2018 DIGILAW 1734 (HP)

Jai Chand Sharma v. Venus Remedies Limited

2018-09-26

SANDEEP SHARMA, TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This writ petition is directed against the order dated 3.5.2017 passed by the learned Labour Court-cum-Industrial Tribunal, Shimla in Reference No. 105 of 2016 whereby the reference has been answered against the petitioner mainly on the ground that the petitioner had failed to appear before the Court and to lead evidence. 2. The following reference was sent by the appropriate authority to the Labour Court: "Whether termination of services of Shri Jasi Chand S/o Shri Pat Ram R/o VPO Madhana (Morni Hill), Tehsiland District Haryana w.e.f. 28.7.2015 by the Employer/Factory Manager of M/s Venus Remedies Ltd., Hill Top Industrial Estate, EPIP Phase-I, Bhatoli Kalan Baddi, District Solan, H.P. without complying with the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount of backwages, seniority, past service benefits and compensation the above workers is entitled to from the above employer?" 3. However, as observed earlier, the said reference was dismissed by according the following reasons: " ..From the aforesaid reference it is clear that the petitioner has challenged his termination w.e.f. 28.7.2015 to be illegal and unjustified but the petitioner has failed to appear before this Court and to lead any evidence which shows that he is not interested to pursue the present claim arising out of reference. Therefore, in the absence of any material on record, the reference is answered against the petitioner and the award is passed accordingly. Let a copy of this award be sent to the appropriate government for publication in official gazette. File after completion be consigned to records." 4. The impugned order has been assailed on the ground that the counsel for the petitioner could not put in appearance on the date fixed as he had wrongly noted down the next date of hearing as 04.05.2017 instead of 03.05.2017 as is evident from para-5 of the petition which reads thus: "5. That on dated 03.05.2017 the counsel of the petitioner could not put his appearance before the Ld. Industrial Tribunal-cum-Labour Court, due to the reason that the counsel of the petitioner wrongly noted down the next date of hearing as 04.05.2017 instead of 03.05.2017 and as such the Ld. Court below decided the claim of the petitioner in absentia and decided the claim against the petitioner. Industrial Tribunal-cum-Labour Court, due to the reason that the counsel of the petitioner wrongly noted down the next date of hearing as 04.05.2017 instead of 03.05.2017 and as such the Ld. Court below decided the claim of the petitioner in absentia and decided the claim against the petitioner. (Copy of the petitioner counsel case diary is annexed herewith as Annexure P-3 and copy of the award is annexed herewith as Annexure P-4)." We have heard learned counsel for the parties and have gone through the material placed on record. 5. 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. In a majority of the cases, the party normally has no knowledge of the Court''s procedure and after engaging a lawyer remains supremely confident that the lawyer will look after his interest. Therefore, after having done everything in his power can the party still be made to suffer for the negligence of his counsel, particularly, when there is nothing on record to show that there was any inaction, deliberate omission or misdemeanour on his part. 6. Complete answer to this proposition is found in the judgment of the Hon''ble Supreme Court in Rafiq and another vs. Munshilal and another , (1981) AIR SC 1400 wherein it was observed as under: "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. 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 .." 7. Similar reiteration of law can be found in Special Tehsildar, Land Acquisition, Kerala vs. K.V. Ayisumma , (1996) AIR SC 2750 and State of M.P. and another vs. Pradeep Kumar and another , (2000) 7 SCC 372 . 8. In view of the aforesaid exposition of law, the impugned order dated 03.05.2017 passed by the learned Labour Court is not legally sustainable and consequently, the same is set-aside. However, at the same time, it cannot be denied that the respondent has been driven to unnecessary and otherwise avoidable litigation and, therefore, he is required to be compensated for the same. It is well known that in litigation the costs are normally the panacea for all ills and Courts in such case can always compensate a party. 9. Having said so, the impugned order dated 3.5.2017 passed by the learned Labour Court-cum-Industrial Tribunal, Shimla in Reference No. 105 of 2016 stands set-aside. However, it shall be subject to the petitioner paying to the respondent costs of Rs. 5,000/- on the next date of hearing before the learned Labour Court. It is made clear that in case the costs, as aforesaid, are not paid to the respondent, then the order impugned herein shall deem to have revived. 10. The parties through their counsel(s) are directed to appear before the learned Labour Court, Shimla on 22.10.2018.