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2018 DIGILAW 1146 (ALL)

SHIV BACHAN YADAV v. STATE OF U. P.

2018-05-08

ATTAU RAHMAN MASOODI

body2018
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Writ Petition No. 13034 (MS) of 2018 is a second petition filed under Article 227 of the Constitution of India for a relief in respect whereof the previous petition filed before this Court registered as W.P. No. 23586(M/S) of 2017 was dismissed as not pressed in terms of the following orders : “A perusal of order-sheet shows that the case has been consistently adjourned on account of the fact that the lawyers are abstaining from work. There is no good ground to expedite the hearing of the case. At this stage, learned counsel for the petitioners states that the petition be dismissed as not pressed. Dismissed accordingly.” 2. The other two petitions have also come to be filed for the same cause. The order sheets of the cases sought to be decided with expedition clearly show that the pendency is reflected either on account of lawyers going on strike or due to non-availability of Court. A lawyer may seek adjournment on the ground of illness or any other personal difficulty but adjournments sought on the ground of strike cannot be a routine practice observed by the members of the Bar who owe a responsibility to the system as well as duty to their clients whom they represent under a contractual obligation unless shown pro boNo. The Court has no hesitation to observe that the responsibility and duty resting on the bar is paramount and the professional ethics on that account cannot be allowed to be compromised. Impeding the cause of justice due to unforeseen situations for which strike may not be a permissible solution is nevertheless resorted to by the members of the bar and their representatives which must be discouraged by the institution, otherwise justice delivery system is bound to fail and the faith of people for whom the bench and bar exist would become meaningless. 3. This Court has noticed time and again that adjournments are invariably granted by civil and revenue Courts on the ground of strike or non-availability of Court. This is an unhealthy state of affairs which has to be checked. 4. This Court has already ordered recently that the order sheet of a case must specifically indicate the reason as to why the lawyer has sought an adjournment when the case was fixed. This is an unhealthy state of affairs which has to be checked. 4. This Court has already ordered recently that the order sheet of a case must specifically indicate the reason as to why the lawyer has sought an adjournment when the case was fixed. No adjournment should be allowed unless an application is genuinely made before the Court specifying the reason therefor and it must be kept on record. The subsequent orders ought to make a reference to the previous order so that the lawyer’s conduct is made known to the litigant. The cases where adjournment is sought on three consecutive occasions frivolously or due to strike must be brought to the notice of litigants disclosing the cause of delay when a case is finally dealt with. 5. On the aspect of lawyers going on strike, the high Courts as well as the Apex Court have repeatedly expressed a displeasure in the judgments reported in 2018 (4) JT 82 And (2003) 2 SCC 45 . 6. The solemn duty of the Courts can be gathered from condition No. 5 that was spelt out by Uttarakhand High Court in the case of Nanak Chand Gupta v. State Bar Council, through its Secretary [W.P. No. 661 (MB) of 2005 decided on 7.4.2005], as under : (5) Every Court has a solemn duty to proceed with the judicial business during the Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequence contemplated in law is to follow. The Court should not become privy to the strike by adjourning the case on the ground that the lawyers are on strike. Strike infringes the litigants’ fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its ands in helplessness on the face of such continued violation of the fundamental right. Hence, if the Presiding Officer of a Court refuses to proceed with the judicial work during Court hours or adjourns a case because of a strike call, it will be viewed as dereliction of duty and misconduct on his/her part.” 7. Hence, if the Presiding Officer of a Court refuses to proceed with the judicial work during Court hours or adjourns a case because of a strike call, it will be viewed as dereliction of duty and misconduct on his/her part.” 7. The bar owes an equal responsibility to their clients and public at large and this position is also well-settled. The Apex Court judgments cited above in unequivocal terms have disapproved the practice of lawyers going on strike in the following terms when a reference to para-35 of the judgement in Ex-Capt. Harish Uppal v. Union of India and another, (2003) 2 SCC 45 , is made: “35. In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.” 8. In my humble opinion, the age old experience tells us that the Courts must not loose hold of discipline while carrying out judicial business and the atmosphere of wisdom that keeps the judicial system live needs to be maintained full of interest and thought provoking for all present in the Court. 9. The Courts, of course, are vested with ample powers to check the conduct of lawyers but an equal duty is cast on the Courts to conduct the Court proceedings in a manner that instill confidence in the mind of lawyers whose participation and assistance is so vital to the justice delivery system. This mechanism lends support to the learning process which is indispensable for the succeeding generation but is perhaps lacking in the present day Court functioning, may be, on account of heavy work load. For lawyers and judges both, the work place is bound to have a conducive atmosphere without which no institution would survive. Active participation of the bar has a purificatory effect that belies too many misnomers which the public may attribute against the judicial system on account of delay. 10. The litigation of any nature is an empirical analysis of a dispute and the procedure enables us to unfold the truth. Active participation of the bar has a purificatory effect that belies too many misnomers which the public may attribute against the judicial system on account of delay. 10. The litigation of any nature is an empirical analysis of a dispute and the procedure enables us to unfold the truth. The pursuit for justice must be a healthy journey for the Courts and the bar both so that the purpose of law is essentially served. If Court rooms become the places where the members of the bar feel disinterested to contribute their part, the coming generation will not only stand loaded with an onerous work load of pendency but the very culture sustaining the system will perish. The Courts in such a situation have to play a constructive role of seeking active participation of the bar rather their dissociation from the system. The recruitment of a judge must own this basic achievement so that accountability of a judge and members of the bar is relieved of the fear of vulnerability and the institution delivers its best to the objects for which it exists. It is for this reasons that this Court has laid emphasis on the order sheets to be speaking. The order sheet alone is a document that tracks the role of a judge and the bar. 11. In all the cases where order sheets mention of the adjournment either on the ground of non-availability of Court or lawyers abstaining from work, it must spell out the real cause and the subsequent orders must take note of the cause of delay. This Court would hope that a good work culture being the only solution to the present day crisis, when meticulously observed by the bar would truly achieve independence of judiciary. The atmosphere in the Courts must be conducive, transparent and user-friendly. 12. In view of above, all the petitions are disposed of with the following general directions: 1. The revenue and Civil Courts both must clearly deal with the cause of delay particularly occasioned on account of lawyers going on strike. For the cause of delay attributable to the absence of a lawyer due to strike, the bar council shall admonish the conduct of a member of the bar and the representatives of local bar association as well. The Bar Council of the State is expected to evolve a disciplinary system for dealing with the menace of illegal strikes. For the cause of delay attributable to the absence of a lawyer due to strike, the bar council shall admonish the conduct of a member of the bar and the representatives of local bar association as well. The Bar Council of the State is expected to evolve a disciplinary system for dealing with the menace of illegal strikes. 2. The order sheet in the cases which stand adjourned due to paucity of time must reflect this fact so that the performance of the Courts can easily be tracked on such dates about the business transacted. 3. The State Bar Council looking to the complaint of a litigant in the light of Court order must take up reformative measures against the erring members and the cost imposed and recovered through this mechanism be deposited in the welfare fund of Bar Council of the State to help the sufferer or be utilised for orientation programmes. 13. For the present, all the three petitions are disposed of with the direction that the pending mutation cases as per the mandate of statutory rules be decided within a period of three months from the date of production of a certified copy of this order. 14. This order may be circulated to all the District Judges and District Magistrates for publicity amongst the bar associations.