The Sec.Deptt.Of Hort.,Chandigarh & ... vs Raghu Raj

2. The 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.

3. Shortly 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, 1976.

4. The 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.

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 and legal" and that the order was passed in accordance with terms and conditions of the appointment order.

6. Being 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. Imputation of 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.

7. Aggrieved 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.

9. On 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.

11. On January 19, 2007, the Special Leave Petition was posted for admission hearing. 6 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.

17. The 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 it.

20. The 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.

29. In 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.

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.

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)

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. 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".

(emphasis supplied)

44. It 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 advocate).

45. In 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.

46. Since 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.

47. For 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.

48. Since 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.

49. The appeal is allowed to the extent indicated above.