cPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM. Dated this the 21st day of December 2013 Filed on : 18-07-2011 Present : Shri. A Rajesh, President. Shri. Sheen Jose, Member. Smt. Beena Kumari V.K., Member. CC No 376/2011 Between
The Thevara Urban Co-operative : Complainant Society Ltd., No. E 784, (By Adv. Nelson J. Manayil, Thevara P.O., Kochi-682 013, High Court of Kerala, Edathil Kanayannur Taluk, Ernakulam, Building, Marcket road, Rep. By its President, Tomy K.T Cochi-35)
And
Dilip Mohan, Son of Madana Mohanan : Opposite party Nair, Officer (Legal Department), (By Adv. J. Abhilash) Fertilizers and Chemicals Travancore Ltd., Udyogamandal -683 501, Ernakulam, Res. At “Karthika,' Moozhikulam Parambu, SSKS road, Vaduthala, Kochi-682 023. O R D E R A Rajesh, President. The case of the complainant is as follows: The complainant society initiated disciplinary proceedings against one of its empoyers, Sri. K. Gopalakrishan who was the chief accountant. The charges were mainly of misappropriation of the funds of the society. A domestic enquiry was conducted against him, he was found guilty and removed from service. Prosecution is also pending before the Additional Chief Judicial Magistrate Court as CCNo.1217/2008for offense punishable U/s. 406, 408, 417, 419, 420, 465, 467, 468 and 477 A of IPC. Against the punishment of removal from service the employee has filed Arbitration Reference Case as ARC No. 125/2008 before the Co-operative Arbitration Court. The Society represented by its secretary, the Board of Directors represented by the President were the defendants in the ARC. The opposite party was a practising lawyer at Ernakulam. In January 2011 the opposite party joined as an officer in the Legal Department of the Fertilizers and Chemicals, Travancore Ltd. (FACT). The complainant society entrusted its brief with the opposite party in the ARC proceedings for being defended. The entire files connected with the matter were entrusted to him and paid fee of Rs. 3,000/-on 27-08-2008 and Rs. 5,000/-on 13-01-2009. On 22-04-2009 the ARC was posted to 20-05-2009. Thereafter there was no appearance from the side of the society in the said proceedings. On 25-03-2010 after noting the non representation of the defendants the court has set the defendants ex-parte. In February 2011 the complainant received a copy of the Award. The domestic enquiry and punishment awarded to the employee were set aside and the complainant was directed to reinstate the employee with all benefits. The opposite party failed to appear before the Court for and on behalf of the complainant for the period from 12-11-2009 to 23-09-2010. The complainant had to engage another counsel to file appeal before the Kerala Co-operative Tribunal and the matter is pending before the Tribunal. Thus the complainant is before us seeking direction against the opposite party to pay a sum of Rs. 5 lakhs for the deficiency in service on his part.
2. The opposite party appeared through counsel, and thereafter he opted to remain absent during the proceedings for reasons of his own not stated or explained. The complainant was examined as PW1 and Exts. A1 to A3 were marked. Heard the counsel for the complainant.
3. The only point that comes up for consideration is whether the complainant is entitled to get a compensation of Rs. 5 lakhs from the opposite party.
4. Ext. A1 series (two in numbers) are the receipts issued by the opposite party to the complainant on 21-08-2008 and on 13-01-2009 by accepting Rs. 3,000/- and Rs. 5,000/- from the complainant being expenses for ARC No. 125/2008. Ext. A3 ex-parte order was passed by the learned Co-operative Arbiration Court on 23-09-2010. Ext. A3 reads as follows:
“The suit filed by the plaintiff with a prayer to set aside the domestic enquiry proceedings and enquiry report and to direct the defendants to reinstate the plaintiff with full back wages and all service benefits. Plaintiff was examined as PW1 and Exts. A1 to A29 were marked. Defendants appeared and filed written statement and thereafter they remained ex-parte. The punishment awarded to the plaintiff is dismissal from the service of the defendant society. According to the plaintiff the domestic enquiry conducted by the defendants is violative of the principles of the natural justice. The evidence on records is not connecting each other and orders are passed without any evidence to find guilt on the plaintiff. It is also submitted by the plaintiff that proper necessary opportunity was not given in defending his case in the domestic enquiry. Though the plaintiff requested a copy of the documents and the same was not supplied. According to him the conduct of the enquiry is one sided and with pre determination, to dismiss the plaintiff from the service. Punishment is awarded as per the findings of the domestic enquiry report. Plaintiff filed petition for cause production of the documents. Defendants produced domestic enquiry file which is an incomplete one. The depositions of the witness, the documents relied etc. were not produced by the defendants. Defendants not adduced any oral or documentary evidence to prove domestic enquiry proceedings and the charges leveled against the plaintiff. The punishment given to the plaintiff is dismissal from the service. Considering the gravity of the punishment it is the duty of the defendant to prove the domestic enquiry report before this court based on which the punishment of dismissal is awarded. Since the domestic enquiry report is not proved through the presenting officer it can only be considered as there is no domestic enquiry conducted against the plaintiff. Under the circumstances I set aside the domestic enquiry conducted against the plaintiff. Under these circumstances I set aside the domestic enquiry conducted and also the punishment given to him. In the result the suit is decreed without cost. Defendants are hereby directed to reinstate the plaintiff in service with all service benefits and full back wages.”
5. Ext. A2 the certified copy of the B diary in ARC No. 125/2008 goes to show that the opposite party failed to appear before the Court, during the prolonged proceedings except for filing the written statement for and on behalf of the complainant herein. 6.Based on Section 49 (1) (C) of the Advocates Act 1961 the Bar Council of India has made standards of Professional Conduct and Etiquette for a Lawyer in India. Among others pertaining to this case the formulated principle has to be adhered to which reads as follows: “An advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client upon his withdrawal from a case, he shall refund such part of the fee as has not been earned” . In the instant case evidently it is tangible that the opposite party has violated the same and failed to appear for and on behalf of the complainant before the Co-Operative Arbitration Court promptly precisely on 15 occasions and because of the same case had to be decreed ex-parte. The complainant might be in a position to approach the appellate authority to establish their contentions but that is no excuse for the opposite party for his behaviors. The above conduct of the opposite party amounts to sheer professional negligence in rendering service to his client in this case the complainant. 7. The Hon'ble National Consumer Disputes Redressal Commission in Narinder Kumar Suneja, Advocate Vs. RK Goel 2009 CTJ 1251 (NCDRC) held that if there is deficiency in service rendered by a lawyer, a complaint can be maintained against him under the Consumer Protection Act. The Hon'ble Nationcal Consumer Disputes Redressal Commission relied on the following decisions of the Appex Court to arrive at such a conclusion.
a. Indian Medical Association Vs. V. P. Santha and others 1995 CTJ 969 (SC) (CP) b. Kishore Lal Vs. Chairman Employee, State Insurance Corporation 2007 CTJ 557 (SC) (CP)
Lucknow Development Authority Vs. M.K. Gupta, 1993 CTJ 929 (SC) (CP) 8. On the above observation this forum is all but to redress and allow this complaint. Though ordinarily in such cases compensation is declined it seems only opportune to award the same which we fix it at Rs. 50,000/- exemplary. 9.In the result, we partly allow the complaint and direct that the opposite party shall pay a sum of Rs. 50,000/- (Fifty thousand only) to the complainant towards compensation for the reasons stated above.
The above said order shall be complied with, within a period of 30 days from the date of receipt of a copy of the order, failing which the amount shall carry interest @ 12% p.a. till payment. Pronounced in the open Forum on this the 21st day of Deceber 2013 Sd/-A. Rajesh, President. Sd/- Sheen Jose, Member. Sd/-Beena Kumari V.K., Member. Forwarded/By Order, Senior Superintendent.
Appendix Complainant's Exhibits : Ext. A1 : Copy of receipt dt. 27-08-2008 A1(2) : Copy of receipt dt. 13-01-2009 A2 : Copy of proceedings sheet A3 : Copy of Award dated 23-09-2010
Opposite party's exhibits: : Nil
Deposition: PW1 : K.T. Tomy | 
