Facility to join hearings virtually during a pandemic must be provided: Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th August 2021 W.P.(C) 8932 2021 and CM APPLs. 27789 90 2021 SHARAT DAS AND ASSOCIATES ..... Petitioner RAMESHWAR SINGH & ORS. ..... Respondents JUSTICE PRATHIBA M. SINGH Through: Mr. Sandeep Sharma Advocate. Through: None. Prathiba M. Singh J.(Oral) This hearing has been done through video conferencing. The present petition has been filed challenging the impugned order dated 1st February 2021 and the recovery certificate dated 10th March 2021 issued against the same. Vide the said impugned order a sum of Rs. 8 04 808 has been awarded along with 10% simple interest as gratuity amount to the Respondent No.1 Workman. This is the second round of litigation between the parties. In both rounds of litigation the Petitioner Management was proceeded against ex parte and the order was passed by the Controlling Authority under The Payment of Gratuity Act 1972. 4. Mr. Sandeep Sharma ld. Counsel for the Petitioner submits that as per the summons issued on 25th November 2020 the matter was listed on 7th December 2020 at 11:00 A.M. before the concerned Authority. An e mail was written to the Authority on 3rd December 2020 by the Management wherein the reasons for not appearing physically were stated and a link was sought for joining for a virtual hearing. However despite this e mail having W.P.(C) 8932 2021 been sent the Authority proceeded against the Petitioner Management ex parte on 7th December 2020 and thereafter proceeded to pass the impugned order on 1st February 2021. 5. Mr. Sandeep Sharma ld. Counsel for the Petitioner further submits that during the pandemic the lawyer or the representative of the Petitioner Management ought to have been permitted to join virtually and physical appearance could not have been mandated by the Authority. Accordingly he the order Petitioner Management ex parte is not tenable. In the morning when the matter was called Mr. Sandeep Sharma ld. Counsel for the Petitioner was asked to contact the Respondent No.1 Workman or his Counsel. Ld. Counsel submits that a message was sent to the work. However none appears on behalf of the Workman. An advance copy of this petition has already been served by e mail to the Respondent This Court has considered the e mail dated 3rd December 2020 and and the said email is on record. the same is extracted below: “ From: Bhumit Solanki Solankibhumit2009@gmail.com Subject:Rameshwar Singh vs M s Sharatdas and Date:labdics.delhi@gmail.com labjlc2.declhi@nic.in CC:sdapl85@gmail.com dassharat@gmail.com Sir There are two matters pending adjudication before this forum titled as Rameshwar Singh vs M s Sharatdas and Associates 8932 2021 S&E SD 447 2016 5835.That both the matters are listed on 07.12.2020 for further arguments. That the summons have been received but due to the ongoing pandemic it is not in the health interest of Mr. Sharat Das who is a senior citizen to attend the proceedings. However I am the advocate appearing on behalf of M s Sharat Das and Associates in both the matters and have a letter of authority in my name on record. That as per the latest Judgment of the hon’ble High Court of Delhi passed in VM Singh vs Madan Lal the Hon’ble High Court has ruled that an Advocate cannot be asked to appear physically before court amid COVID 19 pandemic. That the order was passed on 24.11.2020 by Hon’ble Mr. Justice Sanjeev Sachdeva. That in the light of the above circumstances I hereby request you to kindly accommodate us and send me the link to virtual hearing before this forum as the physical presence of Mr. Sharat Das or me is not possible due to the ongoing pandemic. Kindly do the needful.” A perusal of the said e mail clearly shows that the reasons for not appearing physically is two fold: first that Mr. Sharat C. Das the Director of the Petitioner Company is a senior citizen who wanted to avoid appearing physically due to the Covid 19 pandemic and secondly the advocate also ought to be permitted to appear virtually in view of the Order dated 24th November 2020 in CM 586 2020 titled V.M. Singh vs Madan Lal Mangotra & Ors. by the ld. Single Judge of this Court. The said order reads as under: “1. The hearing was conducted through video 2 . Petitioner is aggrieved by order dated 26.10.2020 whereby the Trial Court has directed the listing of the matter for physical hearing and the applications filed by learned Counsel for the petitioner for W.P.(C) 8932 2021 hearing through virtual mode has been dismissed on the ground that as lengthy arguments may be advanced by the parties hearing through video conferencing is not possible. 3. Learned Counsel for the petitioner submits that the family members of the Counsel for the petitioner are vulnerable senior citizens and the present pandemic situation it would not be possible for the Counsel to physically appear before the Trial Court and thus the applications were filed for taking up their case for virtual hearing. 4. Issue notice. Notice is accepted by learned Counsel appearing for respondent No.1. 5. Learned Counsel appearing for respondent No. 1 submits that respondent No. 1 is the plaintiff No. 1 in the suit and is the main contesting party. He submits that presently it is only an application for restoration of the suit which is pending. He further submits that petitioner has not been even appearing virtually before the Trial Court. 6 . Learned Counsel for the petitioner undertakes to appear before the Trial Court through virtual mode as and when the matter is listed. 7 . In view the advisories issued by the High Court petitioner cannot be asked to appear physically unless the advisory is modified by the High Court however recently the High Court has issued a fresh advisory that in case parties do not appear even through virtual mode even after being intimated the Trial Court is free to proceed in accordance with 8 . Furthermore since only an application for restoration of the suit is pending consideration before the Trial Court the Trial Court is directed to take up the suit for consideration through virtual mode and dispose of the application in accordance with law. 9 . Keeping in view the fact that the suit has been W.P.(C) 8932 2021 pending for several years Trial Court is directed to expedite the proceedings. 10. The petition is accordingly disposed of in the above terms. 11. Copy of the Order be uploaded on the High Court website and be also forwarded to learned Counsels through email.” This Court is of the opinion that the said e mail having been sent to the concerned Authority there was an obligation on the Authority to either make available the virtual link to the Petitioner Management or inform the Petitioner Management that the said request is not acceded to in order to enable the Petitioner Management to make alternate arrangements. In any event not providing a facility to join virtually would be contrary to the spirit of holding hearings during the current pandemic. The Authority ought to make it feasible for advocates and representatives to appear virtually before them. Hence the impugned order proceeding ex parte against the Petitioner Management is clearly not sustainable. 11. The written statement of the Petitioner Management is already on record. The matter would now be adjudicated on merits after hearing the Management. However considering the fact that this is the second time the Management was proceeded against ex parte subject to costs of Rs. 50 000 being awarded to the Workman the impugned order is set aside. In view thereof the recovery certificate dated 10th March 2021 shall not be given effect to. 12. The Controlling Authority under The Payment of Gratuity Act 1972 shall now hear both the parties and after taking the written statement filed by the Petitioner into consideration shall proceed in accordance with law. 13. The entire dispute shall be adjudicated within a period of 3 months W.P.(C) 8932 2021 from the first date before the Controlling Authority. The parties are directed to appear before the Controlling Authority on 13th September 2021. The costs imposed shall be paid on or before the said date by the Management to 14. The present petition along with all pending applications is disposed PRATHIBA M. SINGH the Workman. of in these terms. AUGUST 24 2021 Aman AD W.P.(C) 8932 2021 

Summary: Not providing a facility to join virtually would be contrary to the spirit of holding hearings during the current pandemic. The Authority ought to make it feasible for advocates and representatives to appear virtually before them. This was held by Hon’ble Justice Prathiba M. Singh in the case of Sharat Das and Associates vs. Rameshwar Singh and Ors. [W.P.(C) 8932/2021] on the 24th of August, 2021 before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, as per the summons issued on 25th November, 2020, the matter was listed on 7th December, 2020 at 11:00 A.M. before the concerned Authority. An e-mail was written to the Authority on 3rd December, 2020 by the Management, wherein the reasons for not appearing physically were stated, and a link was sought for joining for a virtual hearing. However, despite this e-mail having been sent, the Authority proceeded against the Petitioner/Management ex parte on 7th December, 2020, and thereafter, proceeded to pass the impugned order on 1st February 2021. This is the second round of litigation between the parties. In both rounds of litigation, the Petitioner/Management was proceeded against ex parte and the order was passed by the Controlling Authority under The Payment of Gratuity Act, 1972. The present petition has been filed challenging the impugned order dated 1st February, 2021 and the recovery certificate dated 10th March 2021 issued against the same. The counsel for the petitioner submitted that during the pandemic, the lawyer or the representative of the Petitioner/Management ought to have been permitted to join virtually and physical appearance could not have been mandated by the Authority. It was also submitted that the e-mail clearly shows that the reasons for not appearing physically is two-fold: first, that Mr. Sharat C. Das, the Director of the Petitioner/Company, is a senior citizen who wanted to avoid appearing physically due to the Covid-19 pandemic, and secondly, the advocate also ought to be permitted to appear virtually. To support his argument, the counsel relied on the judgement in V.M. Singh vs Madan Lal Mangotra &amp; Ors, CM (M) 586/2020, wherein it was held that, “In view the advisories issued by the High Court, petitioner cannot be asked to appear physically unless the advisory is modified by the High Court, however, recently the High Court has issued a fresh advisory that in case parties do not appear even through virtual mode even after being intimated, the Trial Court is free to proceed in accordance with law.” Accordingly, he submits that the order passed against the Petitioner/Management ex parte is not tenable.