Aloke Kumar Chattopadhyay vs Chief Engineer (I), Irrigation and Waterways Directorate, Government of W. Ben.

Anindita Roy Saraswati, J.—The present CAN application has been filed by the petitioner with a prayer for restoration of the case being WPST No. 462 of 1998 which was dismissed for default by the order dated 13.11.1998. The petitioner initiated the WPST No. 462 of 1998 with a prayer for rescind/cancelled the order dated 20.08.1997 passed by the State Administrative Tribunal and also for an order restraining the respondent from filing up any vacancy in the post of Draughtsman in Purulia Construction Division (Irrigation). That case was dismissed for default on 13.11.1998 due to non-appearance of the petitioner. According to the petitioner his advocate on record was sick and was confined to bed since 9th November, 1998 and his clerk was also not attend the Court on 13.11.1998. As such when the matter was called nobody was present. The Court was also pleased to dismiss the case for default. By filing supplementary affidavit the petitioner further submitted that the petitioner wholly relied on his learned Advocate who was entrusted with the case but hearing of the said restoration application could not be taken up for a considerable time due to laches on the part of the learned Advocate. Then the petitioner took a change of his erstwhile advocate and entrusted the matter to his present Advocate in 2006 and instructed him to take all necessary steps for restoration of the original application as well as for hearing the main matter expeditiously.

However, the present advocate mentioned the matter before the appropriate Division Bench for inclusion of the application for restoration but despite repeated mentioning the matter was not listed. On enquiry, he came to learn that the record was not traceable in the department for which the matter could not be listed.

Then the petitioner filed another application being CAN No. 1867 of 2007 for reconstruction of the said application. Accordingly, thereafter, the reconstruction was made by the concerned department as per the direction of the Court. The petitioner categorically stated that he was not at fault at any point of time for delay so caused in the matter and the said inordinate delay can only be attributed to the erstwhile advocate of the petitioner as well as for the concerned department.

The respondents by filing affidavit-in-opposition submitted that after filing the restoration application in 1999 the matter was entrusted to another advocate in the year 2006 after a delay of 7 years. And the matter was heard in the year 2012 for the first time again after delay of 5 years. The petitioner approached to the Court for relief after a delay of 7 years and no prompt steps were taken to get the reconstruction allowed and the matter heard. The petitioner has been unable to explain the reasons for delaying in taking steps for 7 years. The respondent accordingly prays for rejection of this application.

Learned advocate for the petitioner placed strong reliance in a case Rafiq and Another Vs. Munshilal and Another, and submitted that, party should not suffer for the inaction, deliberate omission and misconduct of his agent. In the present case according to him the original case was dismissed for default merely because his chosen advocate defaulted. Petitioner has no intention to get the suit dismissed for default as a dilatory tactics as submitted by the respondent/opposite party. He further submitted that he has the genuine grievance that still exist today and if the petitioners claimed has recognized by the Hon''ble Court, then the petitioner deserve absorption, so that is no reason of his part to cause unnecessary delay.

Learned advocate for the respondent drew our attention in a case i.e. Salil Dutta Vs. T.M. and M.C. Private Ltd., and submitted that as per the observation of the Hon''ble Apex Court, the observation made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. He further argued that the petitioner was working as a Draughtsman, he cannot be considered as an illiterate rustic village people as such he should have the consciousness regarding his own litigation. According to him there is inordinate delay of more than 10 years, which caused only because of laches on the part of the petitioner for which the present petition is required to be dismissed.

It appears to me admittedly the petitioner filed the main application by seeking relief from this Court and if the petitioner become successful, then he deserve absorption in his service being an unemployed person. It is, therefore, clear that there is no necessity for him to delay the matter unnecessarily for 12 years. By the said delay he is the only person who is suffering.

Be that as it may it is clear to me that the petitioner is a resident of Purulia, which is situated in long distance. Furthermore, he is an unemployed person and he may have no knowledge of the courts procedures, he may supremely confident that his lawyer will look after his interest.

In this case, it is quite clear to me that the erstwhile advocate of the petitioner not only defaulted to remain present on 13.11.1998 for which the case was dismissed but also filed the present CAN application for restoration of that case after lapse of six and half months. That advocate not even mentioned the matter for listing, in this way about 7 years lapsed.

Thereafter, he has appointed his present advocate who took proper steps for listing the case. But due to ill fate of the petitioner, the application was not traceable in the department and he had to file another application for reconstruction of the application being CAN No. 1867 of 2007 which was ultimately disposed of by this Court on 5.9.2012.

On scrutiny of the facts and circumstances of this case, I find there was no laches on the part of the petitioner for causing delay for restoration of the original case. Actually the delay caused only for the misconduct and inaction on the part of the erstwhile advocate of the petitioner. The present petition was ultimately heard after lapse of about 13 years.

The decision cited by the learned Advocate for the respondent is not at all applicable in the present case as because in that referred case, the defendant was a private limited company that its head office at Calcutta and managed by educated businessmen who know where their interest lies. In the present case relying upon the decision referred by the learned Advocate for the petitioner, we are in a view that the present petitioner is suffering merely because his chosen advocate defaulted. We, therefore, allow and dispose of the application filed by the petitioner. Accordingly, the order dated 13.11.1998 is hereby set aside and the WPST No. 462 of 1998 is also restored. Urgent certified photocopies of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Nishita Mhatre, J.

I agree.