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CASE NO.: Appeal (civil) 6385 2000

PETITIONER: RAMON SERVICES PVT.  LTD.

       Vs.

RESPONDENT: SUBHASH KAPOOR AND OTHERS

DATE OF JUDGMENT:       14/11/2000

BENCH: S.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     SETHI,J.

     I  agree both with the reasonings and the  conclusions arrived  at by Thomas, J.  in his lucid judgment.   However, the  matter  being important having far reaching effects  on the  institution  of  the judiciary, and for my  views  with respect  to  the  role  of  the  Courts  during  strikes  by Advocates,  I have opted to pen down my own observations  in addition.   Persons  belonging to the legal  profession  are concededly  the elite of the society.  They have always been in  the vanguard of progress and development of not only law but  the  Polity as a whole.  Citizenary looks at them  with hope  and  expectations for traversing on the new paths  and virgin  fields  to  be  marched  on  by  the  society.   The profession by and large, till date has undoubtedly performed its  duties  and  obligations  and has  never  hesitated  to shoulder  its  responsibilities in larger interests  of  the mankind.   The  lawyers,  who have been  acknowledged  being sober,  task oriented, professionally responsible stratum of the  population, are further obliged to utilise their skills for  socio-political  modernization  of  the  country.   The lawyers are a force for the preservance and strengthening of constitutional  government  as  they are  guardians  of  the modern  legal  system.   After independence the  concept  of social  justice has become a part of our legal system.  This concept  gives  meaning and significance to  the  democratic ways of life and of making the life dynamic.  The concept of welfare state would remain in oblivion unless social justice is  dispensed  with.   Dispensation of  social  justice  and achieving  the  goals set forth in the constitution are  not possible  without the active, concerted and dynamic  efforts made  by the person concerned with the justice  dispensation system.   The  prevailing ailing  socio-  economic-political system  in the country needs treatment which can immediately be  provided  by  judicial  incision.   Such  a  surgery  is impossible to be performed unless the Bench and the Bar make concerted  effort.   The role of the members of the Bar  has thus assumed great importance in the post independent era in

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the  country.   Generally  strikes  are  antithesis  of  the progress,  prosperity  and  development.    Strikes  by  the professionals including the Advocates cannot be equated with strikes  undertaken by the industrial workers in  accordance with the statutory provisions.  The services rendered by the advocates  to  their  clients are regulated  by  a  contract between  the two besides statutory limitations, restrictions and  guidelines incorporated in the Advocates Act, the Rules made  thereunder  and  Rules  of procedure  adopted  by  the Supreme  Court  and  the High Courts.  Abstaining  from  the courts  by the Advocates, by and large, does not only affect the  persons  belonging  to the legal  profession  but  also hampers  the process of justice sometimes urgently needed by the  consumers of justice, the litigants.  Legal  profession is   essentially  a  service   oriented   profession.    The relationship  between  the lawyer and his client is  one  of trust  and confidence.  With the strike by the lawyers,  the process  of  court intended to secure justice is  obstructed which  is unwarranted under the provisions of the  Advocates Act.   Law  is  no  trade and briefs of  the  litigants  not merchandise.   This Court in The Bar Council of  Maharashtra v.   M.V.   Dabholkar & Ors.  [1976 (2) SCC 291]  placed  on record its expectations from the Bar and observed:  "We wish to  put  beyond  cavil  the new call to the  lawyer  in  the economic  order.   In the days ahead, legal aid to the  poor and   the  weak,  public   interest  litigation  and   other rule-of-law  responsibilities will demand a whole new  range of  responses  from the Bar or organised social groups  with lawyer  members.   Indeed,  the  hope of  democracy  is  the dynamism  of  the  new  frontiersmen  of  the  law  in  this developing   area   and  what  we  have   observed   against solicitation  and  alleged profit-making vices  are  distant from  such free service to the community in the jural sector as part of the profession’s tryst with the People of India."

     In  Pandurang Dattatraya Khandekar v.  Bar Council  of Maharashtra  Bombay  &  Others  [1984 (2) SCC  556]  it  was observed  that,  "An  advocate  stands in  a  loco  parentis towards  the litigants.  Therefore, he is expected to follow norms  of  professional  ethics  and   try  to  protect  the interests  of  his client in relation to whom he occupies  a position  of  trust.   Counsel’s paramount duty  is  to  the client.   The  client is entitled to receive  disinterested, sincere   and  honest  treatment".   It  would  be   against professional  etiquette of a lawyer to deprive his client of his services in the court on account of strike.  No advocate can  take  it for granted that he will appear in  the  court according  to his whim or convenience.  It would be  against professional  ethics for a lawyer to abstain from the  court when  the  cause  of  his client is called  for  hearing  or further  proceedings.   This  Court in  Tahil  Ram  Issardas Sadarangani & Ors.  v.  Ramchand Issardas Sadarangani & Anr. [1993  Supp.  (3) SCC 256] while deprecating the  decreasing trend   of   service  element   and  increasing   trend   of commercialisation  of legal profession, pointed out that  it was  for  the  members of the Bar to act and  take  positive steps  to  remove such an impression before it is too  late. By  striking work, the lawyers fail in their contractual and professional  duty  to conduct the cases for which they  are engaged  and  paid.   In Common Cause, A Regd.   Society  v. Union  of  India & Ors.  [1994 (5) SCC 557 it was  observed, "Since  litigants have a fundamental right to speedy justice as  observed in Hussainara Khatoon v.  Home Secy., State  of Bihar  [1980  (1)  SCC 81] it is essential that  cases  must

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proceed  when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there  are cogent reasons to do so.  If cases get  adjourned time  and again due to cessation of work by lawyers it  will in  the  end  result  in erosion of  faith  in  the  justice delivery system which will harm the image and dignity of the Court  as well".  Noting casual and indifferent attitude  of some  of the lawyers and expecting improvement in quality of service  this  Court  in  In   Re:   Sanjiv  Datta,   Deputy Secretary,  Ministry  of  Information  &  BroadCasting,  New Delhi, etc.  [1995 (3) SCC 619 held:  "Of late, we have been coming  across several instances which can only be described as  unfortunate  both  for  the  legal  profession  and  the administration  of justice.  It becomes, therefore, our duty to  bring it to the notice of the members of the  profession that  it  is  in their hands to improve the quality  of  the service  they render both to the litigant-public and to  the courts,  and  to brighten their image in the society.   Some members  of  the profession have been  adopting  perceptibly casual  approach  to  the practice of the profession  as  is evident  from their absence when the matters are called out, the  filing  of incomplete and inaccurate pleadings  -  many time   even  illegible  and   without  personal  check   and verification,  the  non-payment  of court fees  and  process fees,  the failure to remove office objections, the  failure to  take  steps  to serve the parties, et al.  They  do  not realise  the seriousness of these acts and omissions.   They not only amount to the contempt of the court but do positive disservice   to  the  litigants   and  create   embarrassing situation  in the court leading to avoidable  unpleasantness and  delay in the disposal of matters.  This augurs ill  for the health of our judicial system.

     The   legal  profession  is  a  solemn   and   serious occupation.   It is a noble calling and all those who belong to it are its honourable members.  Although the entry to the profession  can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court.  The legal profession is different from  other professions in that what the lawyers do, affects not  only  an individual but the administration  of  justice which is the foundation of the civilised society.  Both as a leading member of the intelligentsia of the society and as a responsible  citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and  public life.  The society has a right to expect of  him such  ideal  behaviour.  It must not be forgotten  that  the legal profession has always been held in high esteem and its members  have  played an enviable role in public life.   The regard for the legal and judicial systems in this country is in  no small measure due to the tireless role played by  the stalwarts  in the profession to strengthen them.  They  took their  profession  seriously and practised it with  dignity, deference  and  devotion.  If the profession is to  survive, the judicial system has to be vitalised.  No service will be too  small  in  making the system efficient,  effective  and credible.   The casualness and indifference with which  some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the  profession or of the institution they are serving.   If people  lose confidence in the profession on account of  the deviant  ways  of  some of its members, it is not  only  the profession  which will suffer but also the administration of justice  as  a whole.  The present trend unless  checked  is

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likely  to  lead  to a stage when the system will  be  found wrecked  from within before it is wrecked from outside.   It is  for the members of the profession to introspect and take the  corrective steps in time and also spare the courts  the unpleasant duty.  We say no more."

     In  Brahma Prakash Sharma v.  State of U.P.  [1953 SCR 1169]  a  Constitution  Bench  of this  Court  held  that  a resolution  passed by the Bar Association expressing want of confidence in the judicial officers amounted to scandalising the  court  to  undermine its authority  which  amounted  to contempt  of court.  In Tarini Mohan Barari, Re:  [AIR  1923 Cal.   212]  the  Full  Bench of the High  Court  held  that pleaders  deliberately  abstaining from attending the  court and  taking  part  in a concerted movement  to  boycott  the court,  was  a  course of conduct held not  justified.   The pleaders  had  duties  and obligations to their  clients  in respect  of matters entrusted to them which were pending  in the  courts.  They had duty and obligation to cooperate with the   court  in  the   orderly  administration  of  justice. Boycotting  the  court  was  held  to  be  high  handed  and unjustified.   In  Pleader,  Re:   [AIR  1924  Rang  320]  a Division  Bench  of  the  High Court  held  that  a  pleader abstaining from appearing in the court without obtaining his client’s  consent  and leaving him undefended,  amounted  to unprofessional   conduct.   In  U.P.    Sales  Tax   Service Association  v.   Taxation  Bar Association, Agra  &  others [1995  (5)  SCC  716] this Court observed:  "It has  been  a frequent  spectacle  in  the  recent past  to  witness  that advocates  strike  work  and  boycott   the  courts  at  the slightest  provocation  overlooking the harm caused  to  the judicial  system  in  general  and the  litigant  public  in particular  and to themselves in the estimate of the general public.  An advocate is an officer of the court and enjoys a special  status in the society.  The workers in  furtherance of   collective  bargaining  organise   strike  as  per  the provisions  of the Industrial Disputes Act as a last  resort to  compel  the  management  to  concede  their   legitimate demands.

     It  is  not necessary to go into the question  whether the  advocates, like workmen, have any right at all to go on strike  or  boycott court.  In Federal Trade  Commission  v. Superior Court Trial Lawyers’ Assn.  493 US 411the attorneys who  regularly  accepted  court  appointments  to  represent indigent  defendants in minor felony and misdemenaour  cases before  the  District of Columbia Superior Court  sought  an increase  in  the statutorily fixed fees they were paid  for the  work they had done.  When their lobbying efforts to get increase  in the fees failed, all the attorneys, as a group, agreed  among themselves that they would not accept any  new cases  after a certain date, if the District of Columbia had not  passed  legislation providing for an increase in  their fees.  The Trial Lawyers’ Association to which the attorneys belonged  supported  and publicised their  agreement.   When they  are  not  accepting  the  briefs  which  affected  the District’s  criminal  justice  system,   the  Federal  Trade Commission  (FTC)  filed  a   complaint  against  the  Trial Lawyers’  Association complaining that they had entered into a conspiracy to fix prices and go in for a boycott which was an  unfair method of competition violating Section 5 of  the Federal   Trade   Commission   Act   (15  USCS   45).    The administrative  law  judge rejected various defences of  the Association  and recommended that the complaint to  browbeat

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the  boycott  be  dismissed.  The Court of Appeals  for  the District of Columbia reserved the FTC order holding that the attorneys  are  protected  by Federal  Constitution’s  First Amendment etc.  On certiorari, majority of USA Supreme Court speaking  through Stevens, J.  held that the lawyers had  no protection  of  the  First Amendment (free speech)  and  the action  of  the  group of attorneys to  boycott  the  courts constituted restraint of trade within the meaning of Section 1  of  Shreman  Act against unfair  method  of  competition. Though the object was enactment of a favourable legislation, the  boycott was the means by which the attorneys sought  to obtain  favourable legislation.  The Federal  Constitution’s First Amendment does not protect them."

     In  Mahabir Prasad Singh v.  Jacks Aviation Pvt.  Ltd. [1999  (1)  SCC  37] to which one of us (Thomas, J.)  was  a party observed:  "Judicial function cannot and should not be permitted  to  be  stonewalled by  browbeating  or  bullying methodology,  whether  it  is by litigants  or  by  counsel. Judicial  process must run its even course unbridled by  any boycott call of the Bar, or tactics of filibuster adopted by any  member thereof.  High Courts are duty bound to insulate judicial  functionaries  within their territory  from  being demoralised due to such onslaughts by giving full protection to  them  to  discharge  their  duties  without  fear.   But unfortunately  this case reflects apathy on the part of  the High  Court  in  affording  such protection  to  a  judicial functionary  who  resisted, through legal means, a  pressure strategy slammed on him in open court."

     It was further held:  "If any counsel does not want to appear  in  a  particular court, that  too  for  justifiable reasons,  professional  decorum and etiquett require him  to give  up his engagement in that court so that the party  can engage  another  counsel.   But retaining the brief  of  his client  and  at the same time abstaining from  appearing  in that court, that too not on any particular day on account of some  personal  inconvenience  of  the   counsel  but  as  a permanent  feature, is unprofessional as also unbecoming  of the status of an advocate.  No court is obliged to adjourn a cause because of the strike call given by any association of advocates  or  a  decision to boycott the courts  either  in general  or any particular court.  It is the solemn duty  of every  court  to proceed with the judicial  business  during court  hours.  No court should yield to pressure tactics  or boycott calls or any kind of browbeating.

     A three-Judge Bench of this Court has reminded members of  the  legal  profession in Lt.Col.   S.J.   Chaudhary  v. State  (Delhi Admn.) (1984) 1 SCC 722 that it is the duty of every  advocate who accepts a brief to attend the trial  and such  duty cannot be overstressed.  It was further  reminded that  ’having  accepted the brief, he will be  committing  a breach of his professional duty, if he so fails to attend’.

     "A lawyer is under obligation to do nothing that shall detract  from  the  dignity  of the court, of  which  he  is himself  a  sworn officer and assistant.  He should  at  all times   pay   differential  respect  to   the   Judge,   and scrupulously observe the decorum of the courtroom."

     (Warvelle’s Legal Ethics, at p.182)

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     Of  course, it is not a unilateral affair.  There is a reciprocal  duty  for the court also to be courteous to  the members  of  the  Bar  and  to  make  every  endeavour   for maintaining  and protecting the respect which members of the Bar  are entitled to have from their clients as well as from the litigant public.  Both the Bench and the Bar are the two inextricable  wings of the judicial forum and therefore  the aforesaid  mutual  respect  is  the sine  qua  non  for  the efficient  functioning  of  the solemn work  carried  on  in courts  of law.  But that does not mean that any advocate or a  group  of them can boycott the courts or  any  particular court  and ask the court to desist from discharging judicial functions.   At  any rate, no advocate can ask the court  to avoid  a case on the ground that he does not want to  appear in that court."

     In  the light of the consistent views of the judiciary regarding  the  strike by the advocates, no leniency can  be shown  to  the  defaulting party and  if  the  circumstances warrant to put such party back in the position as it existed before the strike.  In that event, the adversary is entitled to  be  paid exemplary costs.  The litigant suffering  costs has  a right to be compensated by his defaulting counsel for the  costs paid.  In appropriate cases the court itself  can pass  effective orders, for dispensation of justice with the object  of  inspiring  confidence of the common man  in  the effectiveness  of  judicial  system.  In  the  instant  case respondent  has to be held entitled to the payment of costs, consequent  upon  the  setting aside of the  ex-parte  order passed  in his favour.  Though a matter of regret, yet it is a   fact,  that  the  courts  in  the  country   have   been contributory to the continuance of the strikes on account of their  action  of sympathising with the Bar and  failing  to discharge their legal obligations obviously under the threat of  public frenzy and harassment by the striking  advocates. I  find  myself in agreement with the submission of  Sh.M.N. Krishnamani,   Senior   Advocate  that   the   courts   were sympathising  with  the Bar by not agreeing to  dismiss  the cases  for default of appearance of the striking  advocates. I  have my reservations with the observations of Thomas,  J. that  the  courts  had not been sympathising  with  the  Bar during  the  strikes  or boycotts.  Some courts  might  have conducted  the  cases  even  during the  strike  or  boycott periods  or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority  of  the courts in the country have been  impliedly sympathisers  by  not  rising  to  the  occasion  by  taking positive  stand for the preservation of the high  traditions of  law  and for continued restoration of the confidence  of the  common man in the institution of judiciary.  It is  not too late even now for the courts in the country to rise from the  slumber and perform their duties without fear or favour particularly  after  the judgment of this Court  in  Mahabir Singh’s case(supra).  Inaction will surely contribute to the erosion  of ethics and values in the legal profession.   The defaulting  courts may also be contributory to the  contempt of this Court.