Union of India vs Ganesh

Bakhshish Kaur, J.—The petitioner by invoking the provisions of Article 227 of the Constitution of India, prays for the issuance of suitable

directions to the Additional District Judge, Yamuna Nagar at Jagadhari, respondent No. 3, to decide the application for stay filed by the petitioner

against the order dated 24.9.1990.

The brief facts giving rise to this petition are as under :

Respondent No. 1 Ganesh had filed an application under Section 15(3) of the payment of Wages Act, 1936 (in short the *Act*). It was

allowed by the Authority, vide order annexure P1, dated 24.9.1990.

The petitioner, against whom the order was passed, had preferred the appeal. Copy of the grounds of appeal accompanied by an application

for stay of the order dated 24.9.1990 is annexed P3. Admittedly the appeal is pending. Even the application for stay has not been decided so far

though it was moved on 24.4.1996.

On 11.2.2000 when the matter came up for hearing the learned Additional District Judge, ordered that the file be consigned to the record room

as adjourned sinedie. The order read as under :

Present : Shri Parmod Gupta, counsel for the appellant.

Shri G.S. Khurana, counsel for the respondent.

Vide my order dated 31.1.2001 the appellant was directed to give the whereabouts of the file and it was made clear that failing which the appeal

will be adjourned sinedie but no steps appear to have been taken in this direction as nothing has come on the file and moreover the file has not

been received either from the department concerned or from the Tribunal despite so many letters having been written from the Court for that

purpose. In this situation the appeal is adjourned sinedie and the file be consigned to the record room and the case will be taken up again on the

application of the parties stating of the summoned file i.e. lower court file.

Sd/ Additional District Judge

Jagadhari

11.2.2000

A bare perusal of the order as above would indicate that the entire responsibility for locating the file has been put on the appellant. Once the

appeal along with the application for stay has been filed by the aggrieved party is it the duty of the appellant to produce the record ? The court

being the custodian of the record is expected to requisition the record and obtain the information about the missing record from the official

concerned attached to the said court. If at all, the record was not available, or, it was lost, or, destroyed then it was imperative on the court to take

necessary steps for the reconstruction of the record in accordance with the Punjab and Haryana High Court Rules and Orders.

The grounds of appeal Annexure P3 and the copy of the application for stay Annexure P4 indicate that the matter remained pending before the

Additional District Judge for a sufficient long period, nearly for about four years, and instead of taking any concrete steps for the reconstruction of

the record or fixing the responsibility of the official concerned for the loss of record, the impugned order consigning the record ''sinedie'' has been

passed with a further direction that the case will be taken up again on the application of the parties.

The Additional District Judge has totally ignored the fundamental right of speedy justice enshrined under Article 21 of the Constitution of India.

Fundamental right is an ingredient of Article 21 of the Constitution. The Supreme Court in a catena of judgments has held that the provision of

speedy justice is an obligation of the State, for otherwise the operation of the legal system would not provide justice which is assured in the

preamble.

In Lal Chand v. State of Haryana, 1999(1) RCR(Crl.) 192, following Chander Bhan v. State of Haryana, 1996(1) RCC 57, it has been

observed that the right to speedy and expeditious trial is one of the most valuable and cherished right guaranteed under the Constitution.

Fundamental rights were not a teasing illusions to be mocked at.

It would not be out of place to mention over here that the case in hand is a case of glaring example where the principles of natural justice have

been violated. An appeal alongwith the application for stay of the order pending since 24.9.1990 has been consigned sinedie on the ground that the

appellant has not given the whereabouts of the file. The appellant petitioner is not gaining anything by withholding the particulars of a record. It is he

who is aggrieved by the order under appeal. It is he who is asking for issuance of stay order in his favour. The principles of natural justice belong

more to the common consciousness of mankind than to judicial science as observed by Mr. Justice J.L. Gupta in Punjab Cooperative Bank Ltd. v.

Union of India and another, 2001(1) RCR(Civil) 154 (P&H). It is further observed that ""simply put the rules of natural justice are not more than

the principles of fair play, these are meant to provide justice to ensure fairness of procedure"".

On the point of inaction on the part of the court, the Supreme Court in ""A. Venkatasubbiah Naidu v. S. Chellapan and others, SC 2001(2)

ICC 207"" has held that, ""It is the acknowledged position of law that no party can be termed to suffer for the inaction of the court or its omissions

to act according to the procedures established by law"". The petitioner herein has already suffered the agony for a considerably long period due to

the pendency of appeal and stay application since April, 1990. Is it a fair play to leave him in the lurch by consigning the case ''sinedie, and also

keeping the issue open asking the parties to apply as and when record of the lower court is received ? For how long a litigant is to wait ? Is he

required to wait for an indefinite period and grope in the dark ?

In view of the aforesaid facts this petition is disposed of with the direction to the learned Additional District Judge, Yamuna Nagar at

Jagadhari, to revive the proceedings of the case which has been consigned to the record room ''sinedie''. It is further directed to take necessary

steps for the reconstruction of the record in case it is reported that the original file is lost or destroyed as the case may be. He is also directed to

expedite the matter and take appropriate steps within two months of the receipt of a copy of the order. The learned Additional District Judge is

also directed to decide the application for stay within one month after the reconstruction of the record, if at all the reconstruction of the record is

essentially required.

The parties through their counsel are directed to appear before the learned Additional District Judge, Yamuna Nagar at Jagadhari, on 8.10.2001.