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2006 DIGILAW 1109 (JHR)

Asim Kumar Sahani v. Bharat Coking Coal Ltd.

2006-08-23

DILIP KUMAR SINHA, SUDHANSU JYOTI MUKHOPADHAYA

body2006
JUDGMENT S.J. Mukhopadhaya, Acting C.J. 1. This appeal under Clause-10 of the letters patent has been preferred by the appellant (Advocate) against the Order dated 26th April, 2006 passed by the learned Single Judge in C.M.P. No. 287 of 2005 - Bharat Coking Coal Limited v. Krishnapada Kumbhkar, whereby and where under, while the Registrar General of this Court was asked to lodged F.I.R. against the writ petitioner, Krishnapada Kumbhkar for enclosing alleged forged and fabricated document with the writ petition, made certain observations against the Advocate of the petitioner, the appellant herein, and the Advocate has been warned to be very careful in future. One of the questions, raised by the Office, is whether the instant appeal under Clause-10 of letters patent against the Order dated 26th April, 2006 passed in CM.P. No. 287 of 2005 is maintainable. The other question, as raised in this case, is whether an Advocate can be warned by the High Court for the fault of his client in producing alleged forged and fabricated document. 2. For determination of the aforesaid two issues, it is necessary to notice certain facts, as detailed hereunder: A writ petition under Article 226 was preferred by one krishnapada Kumbhkar (writ petitioner-6th respondent herein) against a notice dated 16th March, 2005/1st April, 2005, issued by M/s. Bharat Coking coal Limited (hereinafter referred to as the Company). The 6th respondent-writ petitioner was show caused as to why employment provided to him by the Company in the year 1981 be not withdrawn. Learned Single Judge of this Court, vide Order dated 17th May, 2005, while did not choose to interfere with the aforesaid notice, allowed the 6th respondent-writ petitioner to file show cause reply within three weeks and the Company was directed to decide after full opportunity of hearing to the party. The Company having received the order of this Court, filed C.M.P. No. 287 of 2005 for modification/clarification of the Order dated 17th May, 2005 passed in W.P.(S) No. 2645 of 2005. It was pleaded by the Company that the so-called show cause notice dated 16th March, 2005/1st April, 2005 was never issued by the Company to the 6th respondent-writ petitioner and it was also alleged that such notice was forged and fabricated document. Prayer was also made to recall the order. It was pleaded by the Company that the so-called show cause notice dated 16th March, 2005/1st April, 2005 was never issued by the Company to the 6th respondent-writ petitioner and it was also alleged that such notice was forged and fabricated document. Prayer was also made to recall the order. Learned Single Judge noticed the 6th respondent-writ petitioner and asked as to why he be not punished for the forgery committed by him. The conducting Advocate, appellant herein, was also noticed and directed to file show cause as to why appropriate order be not passed against him, haying enclosed forged document without verifying the original one. The 6th respondent-writ petitioner appeared and filed show cause reply and stated the circumstances in which he could come to know of the impugned show cause notice and took plea that in good faith he filed the writ petition. The conducting Advocate, appellant herein, also appeared and filed show cause and asked for apology for mistake, if committed by him. Learned Single Judge, as stated above, while ordered to lodged F.I.R. against the 6th respondent-writ petitioner, namely, Krishnapada Kumbhkar, reprimanded the Advocate, appellant herein, and made the following observation: XXX XXX XXX XXX I have perused the show cause filed by Mr. A.K. Sahani, learned advocate who admittedly without verifying the document, put the Court in motion and obtained the order-dated 17.5.2005. Although Mr. Sahani humbly offers his unqualified apology for any commission or omission on his part which according to him was neither deliberate nor intentional and he acted bona fidy on the instructions of the petitioner. But I must observe that as a lawyer, it was his duty to verify the genuineness of the document before annexing it with the writ petition and challenging the same. In the writ petition, it is stated that Annexure-7 is a true copy of the original notice but, in fact, there is no original notice. Therefore, the conducting lawyer admittedly did not see the original notice and annexed the photocopy of the notice saying that it is a true copy of its original. Such conduct of the lawyer cannot be appreciated by the Court. However, since has offered his unqualified apology, I do not want to pass any harsh order against him, but he is warned to be very careful in future, so that the same thing may not be repeated again. 3. Such conduct of the lawyer cannot be appreciated by the Court. However, since has offered his unqualified apology, I do not want to pass any harsh order against him, but he is warned to be very careful in future, so that the same thing may not be repeated again. 3. It is a settled law that after disposal of a case, including writ petition under Article 226, the Court becomes functus officio. It has no jurisdiction to modify the judgment/order till an appropriate petition for review of such judgment/order is filed. The Court can only correct the clerical mistake, if any occurred in the judgment/order but cannot modify or vary the judgment/order already delivered. Admittedly, Civil Miscellaneous Petition was preferred by the Company, not for correction of any clerical mistake but for modifying/recalling the order amounting to review of the order, in question. Such application for review and modification of an order can be passed by the Court only in exercise of power conferred under Article 226 of the Constitution of India. In such a situation, the Civil Miscellaneous Petition, in question, preferred by the Company should be construed to be a petition filed under Article 226 of the Constitution of India for modification/recall of the Order dated 17th May, 2005 passed in W.P.(S) No. 2645 of 2005. The impugned Order dated 26th April, 2006 passed in C.M.P. No. 287 of 2005 is, therefore, construed to be an order passed by the learned Single Judge in exercise of power of review under Article 226 of the Constitution. 4. We, accordingly, hold that the present appeal under Clause-10 of letters patent is maintainable against the impugned Order dated 26th April, 2006 passed in C.M.P. No. 287 of 2005 and thereby, answer the first question in affirmative. So far as the second question as to whether an Advocate can be warned by the High Court for the fault of his client in producing alleged forged and fabricated document is concerned, it is not necessary to discuss the relevant provisions of any Act or Rules. So far as the second question as to whether an Advocate can be warned by the High Court for the fault of his client in producing alleged forged and fabricated document is concerned, it is not necessary to discuss the relevant provisions of any Act or Rules. A writ petition is preferred by a person, solemnly affirmed by filing an affidavit and supposed to state whether he has read and understood the contents of the said petition; the paragraphs, which are true to his knowledge; the paragraphs, which are based on information derived from the records and the paragraphs, which are by way of submission before this Court. The parties also supposed to state whether the enclosures filed with such petition are original or true copy or Photostat copy of the original. Once the party sworn and verified such affidavit and solemnly affirms the affidavit, for any wrong statement or for enclosing any forged document, the party, who has sworn such affidavit, can be held responsible and it is always open for the Court to take appropriate step against such person, who has sworn the affidavit and enclosed forged document and may, in appropriate case, after hearing the party, pass stringent order. So far as Advocates are concerned, they are guided by the Advocates Act, 1961. Under the said provision or the rule, framed thereunder, Advocates have not been entrusted any duty to verify the document, as may be produced by one or other party (client of the Advocate) nor any such duty has been imposed on them. It is only in case where mis-conduct, if any committed by an Advocate, he can be punished. The provisions have been made to punish an Advocate for misconduct under Chapter-V of the Advocates Act, 1961, wherein Disciplinary Committee of a State Bar Council have been empowered to pass certain order, including the order reprimanding the Advocate, if found guilty after giving notice to the Advocate concerned and the Advocate General. Disciplinary power is also vested with the Bar Council of India and against appropriate order, there is a forum of appeal. 5. Similar issue fell for consideration before a Bench of this Court in the case of Pandey Pradip Nath Roy v. State of Jharkhand reported in 2005 (1) JCR 250 (Jhr.). Disciplinary power is also vested with the Bar Council of India and against appropriate order, there is a forum of appeal. 5. Similar issue fell for consideration before a Bench of this Court in the case of Pandey Pradip Nath Roy v. State of Jharkhand reported in 2005 (1) JCR 250 (Jhr.). The fact of the said case was that a case was filed by a party through an Advocate before the Court, wherein certain forged documents were enclosed. In the F.I.R., the Advocate, Pandey Pradip Nath Roy was also impleaded a co-accused on the ground that he filed the writ petition of the accused, enclosing a document without verifying from the original and thereby the party got a favourable order from the Court. The said Advocate filed a writ petition for quashing the F.I.R. on the ground that he was not duty bound to verify the original before filing a case enclosing documents. The Court having noticed the relevant provisions, held that the Advocates, who are part and parcel an officer of the Court for smooth functioning of the judiciary of the State, their cooperation is most needed and further held that they are not liable to verify the same and in absence of any allegation that the Advocate participated in commission of preparation of forged document, the Advocate cannot be dragged in such proceeding. Admittedly, no allegation has been made by the Company that the appellant, who is an Advocate, participated in commission of preparation of forged document. No such pleading was made by the 6th respondent-writ petitioner nor it was accepted by the appellant that he connived with the writ petitioner. If any mis-conduct is committed, it has been noticed that the power is there with the State Bar Council and the Bar Council of India to punish the erring Advocate. Learned Single Judge while passed the impugned Order reprimanding the appellant (Advocate), has not made any allegation against the appellant that he participated in commission of preparation of the forged document or was a party with the 6th respondent-writ petitioner. In absence of such finding, it was not open to the learned Single Judge to reprimand the appellant, an Advocate, who is part and parcel an Officer of this Court. 6. In absence of such finding, it was not open to the learned Single Judge to reprimand the appellant, an Advocate, who is part and parcel an Officer of this Court. 6. In the aforesaid background, the observation made by the learned Single Judge and the order of reprimand, as passed in the second last paragraph of the impugned Order dated 26th April, 2006 and quoted above, is hereby set aside, so far it relates to the appellant (Advocate). This appeal is allowed. However, in the facts and circumstances, there shall be no order as to costs. D.K. Sinha, J. 7. I agree.