Madras High Court
K.Ravichandran vs The Management Of Indo Tech Electric on 5 October, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
Review Appl.No.218 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2020
CORAM :
The Hon'ble Mr.A.P.SAHI, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
Review Application No.218 of 2019
K.Ravichandran .. Applicant
-vs-
1.The Management of Indo Tech Electric
Company, (Now known as Indo Tech
Transformers Ltd.,) Rep. by its Director,
31, Hospital Road, Saidapet,
Chennai 600 015.
2.The Presiding Officer,
Principal Labour Court,
Chennai. .. Respondents
Review Application filed under Order 47 Rule 1 read with
Section 114 of CPC to review the order dated 21.09.2007 made in
W.A.No.745 of 2005 on the file of this Court.
For Applicant : Mr.A.Ilayaperumal
For Respondents : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.
for R-1
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Review Appl.No.218 of 2019
ORDER
(Order of the Court was made by The Hon'ble Chief Justice) The time lapse of this case needs to be mentioned at the outset.
2.In a labour dispute between the review applicant and the respondent Company, the Labour Court delivered an Award in I.D.No.259 of 1994 on 02.07.1996. The respondent Management challenged the said Award before this Court in W.P.No.8878 of 1997. The writ petition was dismissed on 19.11.2004 against which W.A.No.745 of 2005, giving rise to this review application, was instituted by the Management. During the pendency of the appeal, it appears that the learned counsel for the respondent Management and the review applicant agreed to get the dispute settled, for which they filed a Joint Memo before the Court. The same was accepted by a Division Bench and the appeal was disposed of in terms of the said Joint Memo on 21.09.2007. The Order is extracted hereinunder:-
“The above appeal is directed against the order dated 19.11.2004 made in W.P.No8878 of 1997.
2. Pending the above appeal, both the appellant and the first respondent have entered into a compromise and filed a joint Page 2 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 memo to that effect, signed by the counsel for the appellant and the second respondent. The joint memo reads as follows:
JOINT MEMO The parties to the above appeal namely the Appellant and the 2nd Respondent have settled the matter amicably. The Appellant has agreed to make the payment of Rs.25,000/- to the 2nd Respondent and the 2nd Respondent has agreed to receive the same in full quits of all his claims.
The parties respectfully pray that the above Memo be recorded and the appeal may be disposed of accordingly in terms of the Joint Memo.
Dated at Chennai on this 21st day of September, 2007.
sd/- sd/-
Counsel for Counsel for
2nd respondent appellant
3. The joint memo is recorded. The above joint memo shall form part of this proceedings. The writ appeal is disposed of accordingly. No costs. Consequently, WAMP Nos.2624 and 2625 of 2005 are closed.”
3.It appears that the review applicant felt aggrieved by the conduct of his lawyer in having settled the matter before the Division Bench and he filed a complaint of professional misconduct before the Bar Council of Tamil Nadu. The said complaint came to be rejected by the Bar Council on 24.07.2009. The said order is extracted hereinunder:-
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http://www.judis.nic.in Review Appl.No.218 of 2019 “With reference to your complaint cited in the reference I am to state that after careful consideration of the complaint and the comments filed by the respondent the Bar Council of Tamilnadu concludes that the complainant has not established prima facie case of professional or other misconduct against the respondent and it has therefore dropped the complaint.
The speaking order (Resolution No.80/2009) is herewith enclosed for your information.”
4.This belated review application, delayed by 794 days was filed, and on account of non-service of notice on the respondent Company, the delay came to be condoned vide order dated 04.10.2019, which is extracted hereinunder:-
'This is a petition to condone the delay of 794 days in filing the above Review Petition.
2.Even though the 1st respondent has been served and his name is also printed in the cause list. No one entered appearance on behalf of the 1st respondent.
3.Having been satisfied with the reasons stated in the affidavit filed in support of the above petition and after hearing the learned counsel appearing on both sides, the delay is condoned and the petition is ordered as prayed for.” Page 4 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019
5.It is not disputed at the Bar that the respondent Company has merged with General Electric Prolec Company and therefore, the respondent Company does not have any independent existence as on date. It is quite possible that the notice could not have been served on that count, but, nonetheless, the review application having been entertained, has now come up for admission in the year 2020.
6.At the time of admission, Mr.T.S.Gopalan, who had appeared as counsel for the appellant Company before the Writ Court is present, as his name has been shown in the cause list, but, he submits that since the company is no longer in existence, he has no instructions either legal or otherwise, yet, he is present on account of his name being shown in the cause list.
7.Learned counsel for the review applicant, Mr.A.Ilayaperumal, has urged that the applicant has been put to a great loss on account of the alleged statement made by his earlier counsel before the appellate Court, even though the applicant had succeeded both before the labour Court as well as the learned single Judge. It is also submitted that there was no reason to compromise the matter for a Page 5 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 paltry sum of Rs.25,000/- when he had already put in long years of service, even if on probation, and therefore the amount of settlement was totally disproportionate and even otherwise was not accepted on his instructions. It is for this reason that the applicant had made a complaint before the Bar Council against the earlier advocate who had appeared for him and had filed the Joint Memo before the appellate Court. The submission, therefore, is that the judgment dated 21.09.2007 deserves to be reviewed as the applicant had never instructed his counsel to enter into any such compromise and otherwise also, the compromise works against the interest of the applicant, in the background that he had succeeded before the labour Court as also before the writ Court. It is urged that there being no reason to compromise, the Joint Memo, therefore, deprives the applicant of the fruits of the litigation and also deprives him of the benefit of an appropriate and fair adjudication before this Court.
8.We have considered the submissions raised and we find that the fact of filing of the Joint Memo could not be successfully disputed before us. Not only this, the applicant, after having made a complaint about professional misconduct, was informed of the rejection of his Page 6 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 complaint as extracted hereinabove. There is, therefore, no element of fraud deducible insofar as the proceedings dated 21.09.2007 are concerned, because the applicant has nowhere disputed the execution of the vakalat nama in favour of the counsel who had filed the Joint Memo on his behalf. In the absence of any such fraud either having been established or proved, we are reminded of the judgment of the Apex Court in the case of Byram Pestonji Gariwala vs Union Bank of India, (1992) 1 SCC 31, where dealing with such a situation, the Apex Court delved into this issue about the role of lawyers in arguing before the Court and settling cases in order to dispose of matters finally. The consent of the counsel was taken into consideration and the debate centered around the expression “party” including the pleader of the party. The entire judgment almost is on the issue beginning from paragraph 3 onwards, but in order to pinpoint the findings, we may extract paragraphs 35, 37, 38 and 39 of the said judgment that may be relevant for the present controversy. The same are gainfully reproduced hereinunder:-
“35. So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not expressly, but impliedly Page 7 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 reduced counsel's role or capacity to represent his client as effectively as in the past. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel's capacity or status or effectiveness. In this respect, the words of Lord Atkin in Sourendra [57 IA 133 :
AIR 1930 PC 158 : 32 Bom LR 645] comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: (AIR p. 161) “There are no local conditions which make it less desirable for the client to have the full benefit of an advocate's experience and judgment. One reason, indeed, for refusing to imply such a power would be a lack of confidence in the integrity or judgment of the Indian advocate. No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them.” ..
37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.Page 8 of 16
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38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise.
39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless Page 9 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 expenditure, it would have expressly so stated.”
9.We have reproduced four paragraphs, but, in our opinion, the entire judgment covers the issue presently involved to enable us to hold that the consent of the counsel that stands recorded in the proceedings of the Division Bench dated 21.09.2007 is final and is authorised in law.
10.The exception which has been carved out by the Apex Court in such situations is in the case of Kerala State Electricity Board vs. Kurien E.Kalathil, (2018) 4 SCC 793, where the Apex Court indicated that it was not pointed out to the Apex Court in the case of Byrom Pestonji Gariwala (supra) about the implications of a compromise involved in a case, as per the earlier judgment of the Apex Court in the case of Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270. It is only to this extent that the Apex Court in Kerala State Electricity Board (supra), in paragraph 40, held as under:-
“40. In a subsequent decision in the context of examining the compromise under Order 23 Rule 3 CPC, in Banwari Lal v. Chando Devi [Banwari Lal v. Chando Devi, (1993) 1 SCC Page 10 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 581] , this Court has observed that Byram Pestonji Gariwala [Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31] had ignored the law laid down in Gurpreet Singh v. Chatur Bhuj Goel [Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270] and held that when parties enter into a compromise, the court must insist upon the parties that the compromise be reduced into writing. In para 10 in Banwari Lal case [Banwari Lal v. Chando Devi, (1993) 1 SCC 581] , it was held as under: (SCC p. 587) “10. … The order on face of it purported to dismiss the suit of the plaintiff on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of that order has to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the Court by Rule 3 of Order 23 of the Code. The learned Subordinate Judge should not have accepted the said petition of compromise even if he had no knowledge of the fraud alleged to have been practised on the appellant by his counsel, because admittedly the petition of compromise had not been signed either by the respondent or his counsel. This fact should have been discovered by the Court. In Gurpreet Singh v. Chatur Bhuj Goel [Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270] it has been said: (SCC p. 276, para 10) ‘10. Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be Page 11 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 dispensed with. The court must therefore insist upon the parties to reduce the terms into writing.”
11.We may however point out that the above mentioned judgments have referred to the provisions of Order 23 Rule 3 C.P.C. and not of a compromise in a writ proceeding, but the same principles would apply for deciding the issue.
12.Apart from this, we have ourselves dealt with in a recent judgment in W.A.No.670 of 2020 decided on 31.08.2020, where also it was held that a concession in law made by a counsel is not binding, but, at the same time, on questions of fact, we had to observe in paragraphs 27 to 29 as under:-
“27. It is often seen that in order to get a better bargain without compromising the interest of the client, counsel make a statement before a Court in order to receive a balanced decision. Such a risk should be weighed appropriately by the counsel before making a request or a concession and keeping in mind the principle that neither the Court nor the client may find themselves bound by any such proposal.
28. On a conspectus of the aforesaid legal position, we are of the opinion that even if any such request is made, the Court should examine as to whether there was any express concession Page 12 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 made or not, and even if it was made, it is the duty of the Court to apply the law correctly and not to go only by any suggestion or concession of a counsel. We may not be mistaken as concluding that there cannot be a compromise, in the manner provided in Order 23 of the Code of Civil Procedure, or even a withdrawal of claims, but we only intend to say that a Court should not adjudicate the case on the basis of such concession without closely examining and applying the law in that regard.
29. In the instant case, there is no such concession made on oath on behalf of the State either in the counter-affidavit filed in this case before the learned Single Judge nor any such concession appears to have been given from a perusal of the pleadings on record.”
13.On the facts of the present case, we find that the conduct of the learned Advocates who filed the Joint Memo did not give rise to an occasion for any doubt about the filing of the same and the acceptance of the terms thereof. The Court, therefore, readily accepted it, which we find to be clearly in tune with the law laid down by the Apex Court in the case of Byrom Pestonji Gariwala (supra).
14.Before parting we may add that the present review application has not been filed by the same counsel, but by a different Page 13 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 counsel. In this regard, it is relevant to mention that the learned counsel who has filed the Joint Memo and has been recorded in the order dated 21.09.2007 namely Mr.K.M.Ramesh has not filed the present review application. The review application has been filed by M/s.Balachandran and E.Vinoth Kumar. However, the matter has been argued on change of vakalat by the present counsel, Mr.A.Ilayaperumal. The law on this issue has also been dealt with to some extent in the case of Tamil Nadu Electricity Board vs. N.Raju Reddiar, (1997) 9 SCC 736, where the review application being filed by another counsel and the practice thereof was dealt with and the matter was dismissed with costs. We do not intend to impose any costs keeping in view the nature of the litigation, but the law as indicated therein would also squarely apply in the present case.
15.Nonetheless, we have dealt with the issue on merits and we do not find any reason to exercise the jurisdiction of review in a matter which has been settled long back in the year 2007 as there is no error apparent on the face of record.
The Review Application, for all the foregoing reasons, is Page 14 of 16 http://www.judis.nic.in Review Appl.No.218 of 2019 accordingly, rejected. No costs.
(A.P.S., CJ.) (S.K.R., J.)
05.10.2020
Index : Yes
sra
To
The Presiding Officer,
Principal Labour Court,
Chennai.
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Review Appl.No.218 of 2019
The Hon'ble Chief Justice
and
Senthilkumar Ramamoorthy, J.
(sra)
Rev.Appl. No.218 of 2019
05.10.2020
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