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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.