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Narendra   08 April 2017

Advise for special case histri

Sir, I was a worker in private ltd.company since 2005 .Employers retranched me from job since 2009 after that I filed a case in district Labour court through trade union , in 2014 the court passed the award in favour of me and ordered respondent to give 50% of back wages which is about 5 lacks and reinstated wih continueity in service there after aggrieved respondent file a writ petition before H.C. single bench and bench dismissed on april 2014 hece aggrived from the order respondent file a special appeal in H.C.(D.B.), yesterday 6/4/2017 in its first hearing my advocate without even intimate or council or ask/ call me willingfully weakened the case and joined the hand to rival party in any reason and court passed the order to give me only 1.5 lakhs without continueity in service.the actual order is as following - " Learend counsel appearing on behalf rival parties submit that the parties have arrived at an amicable settlement and in tune of that if the appellant-employer pays a lump sum compensation i.e. of Rs.1,50,000/- then the workman will not claim any right accrued to him under the award impugned. A cheque in favour of workman-********* having a value of Rs.1,50,000/- has been tendered by the counsel for the appellant today itself. The details of the account payee cheque referred above are as follows: ", In these circumstances what should I do and please also advise the substitute remedy in favour of my case . As from lower middle class family please help me I am very thankful to you , Regards Narendra


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 18 Replies

Dr. Atul [9013898936] (Lawyer, Scholar)     09 April 2017

Not good 😐. I think you should file a Review Petition and do it quickly. Narrate the entire set of events truthfully in it. I know it happens, but do not make any personal allegations of joining hands etc. against your Advocate as you've made here, unless you are capable of proving them. But submit it very strongly that the Advocate acted absolutely without instructions, either oral or written, and competely destroyed your lawful claim which had been already upheld by two concurrent Courts and there was every likelihood of your succeeding in Second Appeal as well. You also need to contend that no memorandum of settlement had ever been brought on record of the Court. Do not encash the so-called settlement cheque made out in your favour. In the Review Petition, seek a prayer for setting aside the second appeal order regarding settlement.

Btw, I am curious: if the first appeal was dismissed in April, 2014, how come the second appeal came to be heard for the first time in April, 2017!!?? And how did you come to know of this hearing and what transpired therein (you might need to explain this to the Court also).

In Himalayan Cooperative Group Housing Society vs. Balwan Singh (2015) 7 SCC 373 the Supreme Court made the following observation regaring Counsel acting without instructions:

it is the solemn duty of an advocate not to transgress the authority conferred him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment ...  a client is not bound by a statement or admission which he or his lawyer was not authorised to make.

An Advocate vs. Bar Council Of India was a case of professional misconduct against the Advocate for withdrawing the Case without instructions. Though, on the actual facts of that case, the Supreme Court sent the question back to be decided by the Bar Council, the Supreme Court did have these observations regarding instructions:

The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/ settlement...it is the solemn duty of an advocate not to transgress the authority conferred him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment.

This Bar Council of India case does not directly apply to your case because in the facts, as you have stated, your Advocate did not settle the case himself, strictly speaking, but only informed the Court that the case had been settled out-of-Court. But the general idea of authority and instructions would help. I'll post here if I can find any other judgment of assistance in a day or two.

Narendra   09 April 2017

Thank you sir Atul ji for your kind reply which is very important to me .let me tell you about your curiosity about second appeal , the D.B.Civil appeal (Writs) was being filed on 26/11/14 and after god knows what happened ( may be some hearing in between but I am totally unaware) whenever I contacted to my lawyer he told me that the case was in "due course " I don't know what it means actually and he also told me that in this situation the case may take uncertain time but after passing many months I told and pressurized him to file a application in section 17 B in Labour law as you know in which court may ordered full selery mean while till judgment , in this connection an application was being filed in Jan / Feb 2017 . I contacted in between him and lastly on 31/3/2017 but he told me that hearing date is not final / fixed, finaly I contacted him on 5/4/2017 just a day before final judgment day 6/4/2017 because he told me that you continue touched with me as he also put the case before National Lok addalt which was on yesterday 8/4/2017 , he told me that your case is on hearing tomorrow it was a surprised to me and I asked him, he assured me that sometimes it is possible in H.C. , he assured that he argued and demanded benefits of 17 B, not a word spoken about final judgment I also told him that I will come on hearing but he denied and assured me that you need not come on that day it is only about 17 B . I tracked the states of case on high court portal but l am astonished even continue tracking just 4 days before but not any update about hearing how can it possible? I write down the whole story which was actually happened for your valueable advise. I also want to know is review petition is beneficial ? Is after review petition I should go to supreme court also suggest above registeration fees and advocate fees and procedures of file complaint against lawyer in bar council and where , please advise I am very very thankful to you. Regards Narendra

Narendra   09 April 2017

Thank you sir Atul ji for your kind reply which is very important to me .let me tell you about your curiosity about second appeal , the D.B.Civil appeal (Writs) was being filed on 26/11/14 and after god knows what happened ( may be some hearing in between but I am totally unaware) whenever I contacted to my lawyer he told me that the case was in "due course " I don't know what it means actually and he also told me that in this situation the case may take uncertain time but after passing many months I told and pressurized him to file a application in section 17 B in Labour law as you know in which court may ordered full selery mean while till judgment , in this connection an application was being filed in Jan / Feb 2017 . I contacted in between him and lastly on 31/3/2017 but he told me that hearing date is not final / fixed, finaly I contacted him on 5/4/2017 just a day before final judgment day 6/4/2017 because he told me that you continue touched with me as he also put the case before National Lok addalt which was on yesterday 8/4/2017 , he told me that your case is on hearing tomorrow it was a surprised to me and I asked him, he assured me that sometimes it is possible in H.C. , he assured that he argued and demanded benefits of 17 B, not a word spoken about final judgment I also told him that I will come on hearing but he denied and assured me that you need not come on that day it is only about 17 B . I tracked the states of case on high court portal but l am astonished even continue tracking just 4 days before but not any update about hearing how can it possible? I write down the whole story which was actually happened for your valueable advise. I also want to know is review petition is beneficial ? Is after review petition I should go to supreme court also suggest above registeration fees and advocate fees and procedures of file complaint against lawyer in bar council and where , please advise I am very very thankful to you. Regards Narendra

G.L.N. Prasad (Retired employee.)     09 April 2017

In addition file a Consumer complaint before District Consumer Forum seeking compensation and damages from the Advocate for deficiency of service.  Appear party in person, and as the case is summary in nature, you may not spend more than Rs.1000/- in total for entire complaint.

Also file complaint against advocate in Bar Council of India.

Thus unethical persons should be taught a lesson. 

Advocates who are in active in the forum may always advise you a criminal case against him and a perjury case for misleading High Court when such a compromise issue even never surfaced.

Narendra   09 April 2017

Thank you Mr.GL.N.Prasad for your valuable reply as you mention in your reply that I will have to file a case in consumer forum but the problem is I can't provide receipt of lawyer fees as evidence because he didn't give any such receipts? Second thing as mention in your reply that I will have to file complaint against advocate in Bar Council of India.if you please suggest me the procedure ( whow , where , when , directly without lawer and whom etc.) because I have contacted to local lawer but they refuse to take even they don't want to give any suggestion in this respect they only advise to file a review petition and nothing else Regards Narendra

G.L.N. Prasad (Retired employee.)     09 April 2017

Make a google search and you can find guidance on each and every simple issue.

Open BCI website and post this as grievance and request for inquiry into the facts.

Try to lodge grievance in online portal   pgportal   

The measures I suggest do not involve any costs and can be done at the convenience of your home.

Dr. Atul [9013898936] (Lawyer, Scholar)     09 April 2017

The informstion about the matter being fixed to come up in "due course" is believable. That a matter is to come up in due course ordinarily means that no date is fixed for next hearing and the matter may come up upon the happening of some event or as and when the Court schedule permits it. Though frankly, even for a matter to come up in due course, I have never heard of a Writ Appeal remaining pending unheard for over two years.

"I tracked the states of case on high court portal but l am astonished even continue tracking just 4 days before but not any update about hearing how can it possible?"

I have no clue what you are trying to say here. But you haven't answered how you came to know of the Judgment if you were advised against attending the proceedings by your Advocate? Did he settle it in Lok Adalat and made a statement to this effect before the High Court?

So far as your query on the Review being benficial, it is the only remedy you have! Besides that, I think it will be beneficial because if the Labour Court and the Writ Court has held in your favor, in probability, the Writ Appeal would have been decided in your favour. By a Review, you would reopen the Writ Appeal to be treated from the same position that it was disposed off [with a new Advocate, I presume]. It will bring finality to the matter and uphold the Labor Court verdict, if possible [be aware, the merits of Labour Court's verdict is something you need to discuss with your advocate; I'm merely assuming that since the Writ Court found no ground in the Writ, the Labour Court decision must've been a sustainable one].

As for consumer complaint, perury et al. The Advocate is definitely negligent and ought to be at least reprimanded for that by the Bar Council. But whether it is negligence simpliciter or culpable negligence punishable as professional misconduct is a different issue altogether which would need to be agitated and proved before the Bar Council (a hint: when was the last time you heard of a peer body like Bar Council or Medical Council finding their peer, one of their own, guilty?). Perjury, lol ... the Advocate was not making a statement on oath; even litigants are let-off on perjury on the question of oath!!! Focus on your Writ Appeal; make a temperate Complaint in writing to the Bar Council [it will also help in your ground for Review] and then, forget it.

1 Like

Narendra   09 April 2017

Dear Atul ji, I don't want to hide anything but you are right that I could not clear about "I tracked the states of case on high court portal but l am astonished even continue tracking just 4 days before but not any update about hearing how can it possible?" I try to clear here that some one told me that you have track the states of your case on above said portal and the second question you asked was how can I know about judgment the answer is " because I was curious about my under section 17 B case , I contacted my lawyer on 6/4/2017 ( Judgment day) evening on phone and Enquired about 17 B then he told me that your case was finalised and a cheque of Rs.1,50,000/- was taken in respect of this award . I am very socked to heard and argued him that why don't you told / asked / get my advise and how can you deside on my behalf but he tried to convinced me that what could he do for my betterment he do even he didn't told me about settlement, he told me that the award passed by the court which I wrote in my first post ? I could not sleep all the night of that day (6/4/2017), I read the judgment on on line portal of high court yesterday 2 P.M. then I met to my lawyer without awair him that I read the judgment on line . I told him to provide a copy of judgement with aforesaid cheque which is in his custody. He told that I will have to wait some days for judgment copy but cheque could be taken but I refused and told him that after seeing the judgment I will deside about the cheque taken or not . Sir this is the entire story, please don't mind about my english language because I am not proficient in english. I am trying to explain my case history as possible as I can without hiding any truth . I will waiting your valuable reply very eagerly please also do comments about my english is it o.k.or not Regards Narendra

Dr. Atul [9013898936] (Lawyer, Scholar)     09 April 2017

You did right in refusing the cheque. Though, strictly speaking, it cannot be held against you if you took the cheque "without prejudice to your rights" but it's best not to take it at all. Send a letter by registered post to your advocate giving all these details and tell him to return the cheque to the other party forthwith, before the Court. Engage a new advocate [all are not chors] and file Review Petition. Your new lawyer can apply for a certified copy of the judgment; you don't need your exising lawyer for that since, as the party you have a right to a certified copy even without any lawyer.

So far as making a Complaint to Bar Council is concerned, it would not really achieve anything except the fact that it'll prove to the Court that you made a Complaint for the fault of the Advocate. Some lazy Courts ask that first question, as in, if your Advocate acted without instructions, did you complain; therefore a Complaint to the Bar Council will shut up such a question.Having said that, remember that we lawyers do tend to stick together as chums and a new lawyer might not be comfortable if you had complained against the existing lawyer; that is something you'll have to decide for yourself possibly in consultation with a new lawyer.

PS: Don't worry about your English as long as you get your message across; you've to communicate, not write novels. But don't try legal drafting with that English :P

Narendra   09 April 2017

Thank you very much Mr.Atul for your important valuable advise , your reply gives me a path in darkness , thank you again for giving me your valuable time .I also up date the case states time to time in this post .if you have any latest or previous report about this issue .Please must post Regards Narendra

Narendra   09 April 2017

Thank you very much Mr.Atul for your important valuable advise , your reply gives me a path in darkness , thank you again for giving me your valuable time .I also up date the case states time to time in this post .if you have any latest or previous report about this issue .Please must post Regards Narendra

Narendra   10 April 2017

Sir, please post here any other judgment regarding this type of case for assistance

Ritesh Maity (Labour Law Advocate)     10 April 2017

Others have already well advised you. Regarding the action of the advocate, it seems very unprofessional and unethical from your version. 

 

I think consumer forum will note consider any case against advocates (As far as I remember I came to similar judgements sometimes back). May anyone can update about it. But definitely you may lodge a complaint in the bar council. Please check the Advocate Act, google and official websites of state bar and Bar Council of India.  

Samarpan (M)99958670740 (Free legal advice and legal aid cell)     14 April 2017

You have to understand what actually happens in the court, before putting any allegations against the advocates.  Before explaining  that, what you should do is:

1.  Monday you go to HC and file inspection application and inspect court file of the division bench and note down daily orders and also simultaneously apply for certified copies of the daily orders as well as final order.

2.  Before division bench, writ appeal takes a lot of time for final hearing.  So note down daily orders and you will come to definite understanding whether any fraud has been committed against you by your own advocate.  Don't jump  to conclusions.

3. After obtaining certified copy of the final order of D.B., engage some other advocate and move review application setting out clearly that the socalled settlement has never got your consent and you have never encashed the cheque and pray to set aside the earlier order and list the matter to decide on merits at the earliest. That review application should be done within 30 days of the D.B. order. 

4.  If the Court allows your review application, it will set aside its earlier order and hear the matter on merits.  If it rejects your review application, then within 90 days, you have to apply in SC as special leave  petition.

Now, I explain what happens in Courts.  I always represent workers and never management.  A workman put about 8 years service and he was terminated illegally.  The labout court after holding the termination illegal, but just awarded only Rs.26,000/- without reinstatement.  It calculated compensation as per S.25 F of I.D. Act.  We went in writ.  A single judge dismissed the writ petition saying that compensation of Rs.26,000/- was adequate.  Again, we went before D.B.  The judge enhanced compensation from Rs.26,000/- to Rs.75,000/- without hearing the case on merits.  He dictated the order that both the parties agreed for the same, where as I violently protested against such absurd order and I asked reinstatement with full back wages, as the termination was illegal.  I did not agree at all to any settlement.  But the D.B. court dictated the order in such language that I also agreed for such settlement.  That judge is now presently sitting in Supreme Court and in a few years will become the Chief Justice of India. So many of his last year judgements are being criticised by legal community as  bi-partisan and communal.  That is the way, the courts behave.  Fortunately, my client is always with me and never doubted about my integrity.  So, go through the orders and before casting any aspertions against the advocates, take remedial measures to get justice.


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