Not providing a facility to join virtually would be contrary to the spirit of holding hearings during the current pandemic. The Authority ought to make it feasible for advocates and representatives to appear virtually before them. This was held by Hon’ble Justice Prathiba M. Singh in the case of Sharat Das and Associates vs. Rameshwar Singh and Ors. [W.P.(C) 8932/2021] on the 24th of August, 2021 before the Hon’ble High Court of Delhi at New Delhi.
The brief facts of the case are, as per the summons issued on 25th November, 2020, the matter was listed on 7th December, 2020 at 11:00 A.M. before the concerned Authority. An e-mail was written to the Authority on 3rd December, 2020 by the Management, wherein the reasons for not appearing physically were stated, and a link was sought for joining for a virtual hearing. However, despite this e-mail having been sent, the Authority proceeded against the Petitioner/Management ex parte on 7th December, 2020, and thereafter, proceeded to pass the impugned order on 1st February 2021. This is the second round of litigation between the parties. In both rounds of litigation, the Petitioner/Management was proceeded against ex parte and the order was passed by the Controlling Authority under The Payment of Gratuity Act, 1972. The present petition has been filed challenging the impugned order dated 1st February, 2021 and the recovery certificate dated 10th March 2021 issued against the same.
The counsel for the petitioner submitted that during the pandemic, the lawyer or the representative of the Petitioner/Management ought to have been permitted to join virtually and physical appearance could not have been mandated by the Authority. It was also submitted that the e-mail clearly shows that the reasons for not appearing physically is two-fold: first, that Mr. Sharat C. Das, the Director of the Petitioner/Company, is a senior citizen who wanted to avoid appearing physically due to the Covid-19 pandemic, and secondly, the advocate also ought to be permitted to appear virtually. To support his argument, the counsel relied on the judgement in V.M. Singh vs Madan Lal Mangotra & Ors, CM (M) 586/2020, wherein it was held that, “In view the advisories issued by the High Court, petitioner cannot be asked to appear physically unless the advisory is modified by the High Court, however, recently the High Court has issued a fresh advisory that in case parties do not appear even through virtual mode even after being intimated, the Trial Court is free to proceed in accordance with law.” Accordingly, he submits that the order passed against the Petitioner/Management ex parte is not tenable.
The learned judge heard the submissions and opined that, “the said e-mail having been sent to the concerned Authority, there was an obligation on the Authority to either make available the virtual link to the Petitioner/Management, or inform the Petitioner/Management that the said request is not acceded to, in order to enable the Petitioner/Management to make alternate arrangements. The petition was allowed by holding, “The written statement of the Petitioner/Management is already on record. The matter would now be adjudicated on merits after hearing the Management. However, considering the fact that this is the second time the Management was proceeded against ex parte, subject to costs of Rs. 50,000/- being awarded to the Workman, the impugned order is set aside. In view thereof, the recovery certificate dated 10th March 2021 shall not be given effect to.”
