202 CWP No.13430 of 2013 -1 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13430 of 2013 Date of Decision:
02. 9.2013 Major (Retd.) P.T.Lazarus .....Petitioner VERSUS Union of India and others …...Respondents CORAM: HON'BLE Mr.JUSTICE S.S.SARON HON'BLE Mr.JUSTICE S.P.BANGARH -.- Present: Mr.Arun Singla, Advocate, for the petitioner.
None for the respondents.
***** S.S.SARON, J.
As per office report, service is complete.
However, no one has appeared for the respondents.
Heard learned counsel for the petitioner.
The petitioner filed Civil Writ Petition No.16516 of 1990 in this Court seeking quashing of the disparaging remarks of “severe displeasure (recordable)”., which were recorded against him by the Chief of Army Staff, Army Head QuarteRs.New Delhi (respondent No.2) on account of a lapse for which he stood acquitted by the Court Martial.
A further prayer was made for quashing of the action of the respondents in considering his case as a fiRs.review case for promotion to the rank of Lt.
Colonel.
A still further prayer was made for directing the respondents to declare the result of the petitioner for the Board held in November, 1989.
The Writ Petition was admitted by Gaurav Bhardwaj 2013.09.05 13:57 I attest to the accuracy and integrity of this document High Court,Chandigarh 202 CWP No.13430 of 2013 -2 -2 - this Court.
During pendency of the Writ Petition, the Armed Forces Tribunal Act, 2007 came into effect.
In terms of Section 34 of the said Act, all cases relating to the service matters of Armed Forces personnel were transferred to the learned Armed Forces Tribunal.
The present case was also transferred to the learned Armed Forces Tribunal, Chandigarh Bench at Chandimandir ('Tribunal'- for short).The Writ Petition filed by the petitioner was filed through an Advocate, who was later elevated to the Bench of this Court.
When the case of the petitioner was transferred to the Tribunal, it issued notice to him as well as to his counsel namely Mr.Arun Singla, Advocate as he was looking after the cases filed by the counsel, who had been elevated to the Bench of this Court.
The notice issued to the petitioner could not be served as his address had changed on his transfer.
The petitioner in the meantime, superannuated from service on 31.07.2006 from the rank of Major in the Command Works Engineer (CWE).Bangalore.
On receiving notice from the learned Tribunal, Mr.Arun Singla, Advocate appeared on 19.10.2010 and pleaded no instructions as he did not have any Power of Attorney/Vakalatnama from the petitioner to pursue his case.
Therefore, the case of the petitioner was dismissed for want of prosecution vide order dated 19.10.2010 passed by the learned Tribunal.
The petitioner then filed an application before the learned Tribunal under Rule 18 of the Armed Forces Tribunal Rules, 2008 read with Order XLVII Rule 1 of the Code of Civil Procedure for recalling the said order dated 19.10.2010, whereby, the Writ Petition that was transferred to the learned Tribunal had been dismissed for non-prosecution.
An application for condoning the delay in filing the application for recalling the order was also filed.
The application seeking recalling of order and condoning the delay came up for hearing before the learned Tribunal on 16.5.2013.
Gaurav Bhardwaj 2013.09.05 13:57 I attest to the accuracy and integrity of this document High Court,Chandigarh 202 CWP No.13430 of 2013 -3 -3 - The learned Tribunal after perusing the application recalled its order dated 19.10.2010 subject to payment of ` 10,000/- as costs against the petitioner.
The petitioner is aggrieved against the imposition of ` 10,000/- as costs.
After giving our thoughtful consideration to the matter, we find that the case is one where the petitioner had engaged a counsel and was confident that his interest would be looked after by his counsel.
However, the case came to be transferred to the Armed Forces Tribunal from this Court.
The counsel engaged by the petitioner had been elevated to the Bench of this Court.
The petitioner himself left his regiment and superannuated from service on account of which, notice issued by the Tribunal could not be served upon him.
Rafiq V.
Munshilal', AIR 198.SC 140.has The Supreme Court in 'Rafiq observed as under:- “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.
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 not 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.”
Gaurav Bhardwaj 2013.09.05 13:57 I attest to the accuracy and integrity of this document High Court,Chandigarh 202 CWP No.13430 of 2013 -4 -4 - Therefore, keeping in view the above observations and in view of the fact that there is no opposition to the prayer of the petitioner, we set aside the order of the learned Tribunal to the extent that costs of ` 10,000/- have been ordered to be deposited in the Registry of the Tribunal.
Accordingly TA No.1103 of 2010 shall stand restored and delay in filing the application before the Tribunal for recalling the order dated 19.10.2010 shall stand allowed without requirement of paying costs by the petitioner.
(S.S.Saron) Judge (S.P.Bangarh ) Judge September 02, 2013 G.
Bhardwaj Gaurav Bhardwaj 2013.09.05 13:57 I attest to the accuracy and integrity of this document High Court,Chandigarh