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2024 DIGILAW 313 (KER)

XXX v. Chief Judicial Magistrate, Kottayam

2024-03-06

DEVAN RAMACHANDRAN

body2024
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The first thing that came racing to my mind, while hearing this matter, was virtually the talismanic statement of justice Joseph Story: “Law is a jealous mistress and requires long and constant courtship. It is not to be won by trifling favours, but by lavish homage.” 2. And that is why Lord Elton advised that a lawyer and a judge should live like a hermit and work like a horse. 3. The Bar and the Bench must work tirelessly to stay abreast of the legal metamorphism; being integral parts of the same mechanism, which administers justice. They operate in tandem, each fulfilling distinct yet vital functions within the legal framework. 4. I will first explain the reason for the afore exordium. 5. The petitioner is a young lawyer, who was appointed as an Advocate Commissioner by the Trial Court. There are some controversies qua this, but I propose not to even whisperingly mention it in the judgment because, I am certain that they are irrelevant. 6. What is relevant to this Court is that there is an imputation made against the petitioner - who had been appointed as an Advocate Commissioner to assist a Bank in taking over possession of the secured asset, under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - that she did so only “partly” and that even though she was directed again to take full possession, she did not do so, but surrendered her warrant; however, seeking certain amounts as additional remuneration. The learned Judge before whom this matter came up, rejected this request and instead, ordered the petitioner to return a portion, out of the remuneration already received by her; and also issued certain directions in the impugned order, namely Ext.P9, including that the petitioner’s name be removed from the “Panel of Advocates” maintained for the purpose of being appointed as Commissioners in future cases. The impugned order reflects that the petitioner insisted that she was unable to take full possession of the secured asset on account of a “consensus reached between the bank and the borrower” and that since she spent “16 hours on the secured asset in three visits” (sic), she is entitled to additional remuneration, having claimed it for the work done by her per hour and that she justified this, saying that, had she invested this time in her professional capacity, she would have earned more than this. The learned Judge noticed that the petitioner commenced her career only in the year 2023 and justifiably took umbrage to her claim of being paid by hour; and hence found that she was not even entitled to the remuneration already accepted, particularly because she unequivocally admitted that all expenses for her work had been borne by the bank. 7. The petitioner asserts that she has been unfairly victimized and therefore, prays that Ext.P9 be set aside. 8. Sri. Ralph Reti John - learned counsel for the petitioner, was extremely fair in his submissions, when he said that he does not propose to justify the claim of his client, but sought lenitude for her, saying that she is an inexperienced person, who stepped into the profession with great expectations. He added that his client was under the bona-fide impression that she was entitled to seek additional remuneration for the effort she had put in; but conceded that “she ought not to have considered it as work” but only as an honour, in having been appointed as Commissioner. He apologised on her behalf, but contended that the learned Judge also had a duty to counsel her, which she did not; but, on the contrary, castigated her by a very drastic step of removing her name from the list of Advocates maintained by the Court for being appointed as Commissioners in future. He contended that this would destroy the morale of the young lawyer and that she may even face the prospect of not being able to continue in the profession and thus prayed that, Ext.P9 to extent to which it casts stigma on his client, be vacated. 9. As I have indicated in the prefatory paragraphs of this judgment, this is not an issue that ought to be construed to be one between the Bar and the Bench. 10. 9. As I have indicated in the prefatory paragraphs of this judgment, this is not an issue that ought to be construed to be one between the Bar and the Bench. 10. The Hon’ble Supreme Court's observation in Supreme Court Bar Association and Others vs. B.D. Kaushik and Others, (2011) 13 SCC 774 reaffirms that the Bench and Bar are inseparable components, akin to the indispensable wheels of a chariot in legal administration; in other words, the Bench and Bar cannot survive, much less function, without the other. 11. In fact, there can be no divide between the two in the administration of the legal system; and am firmly of the view that the two are not even two wheels of a chariot, but is the same one, as in a unicycle. Only if this is so, can the inviolable desideration of a very effective and efficient functioning of the system be achieved. 12. Certainly, young Lawyers require to be told about the ways and means of the profession, the traditions and customs we are governed by, and the manner and the demeanor with which each of us are to discharge our duties. 13. The Bench also has an equal duty, not only to conduct itself to the eminence expected, but also to counsel and mentor the members of the Bar, particularly the younger of them. 14. The profession of Law is certainly difficult, as any young entrant would vouch. Everybody has gone through this march of time and it is only commitment and perseverance that finally hold sway for any success in the profession. The practice of law is certainly not business, or a commercial enterprise; but is more a restatement of commitment, sacrifice, empathy and concern towards the litigants, particularly the marginalized and downtrodden; and these should guide every young entrant into the profession. 15. The practice of law surely cannot be seen as a money making enterprise; though, the more successful and senior members of the Bar would certainly vouch for the perks in the profession, in terms of monetary accomplishments that follow a good Lawyer in the days to come. But, for such a meaningful experience, what requires is a deep sense of responsibility and surrender to the larger echelons of the principles that govern us. 16. But, for such a meaningful experience, what requires is a deep sense of responsibility and surrender to the larger echelons of the principles that govern us. 16. It should be the un-flinched endeavour of every Lawyer to add value to oneself; to be ready for the challenges in future, particularly taking note of the vagaries with which the profession would treat us, lest we are unprepared. 17. Unfortunately, as the facts of this case would show, the young Lawyer did not understand, when she was appointed to be a Commissioner, that it was an honour bestowed on her and she acted under the impression that she was entitled to charge, as if it is a commercial quest, by the amount of work she had completed and the number of hours invested. This, certainly, ought not to have been the manner in which the petitioner should have taken upon herself the responsibility given to her by the Court; which, as I restate, could have only been seen as an honour, as the senior members of the Bar would certainly have told her, has she asked. 18. That said, the response of the Bench is also slightly uncharitable because, instead of counseling the petitioner, who is a young Lawyer and taking her into the wings of care of the system, she has now been cast with the stigma of being removed from the list of Advocates who could be considered for appointment as Commissioners in future. The learned Judge certainly reacted to the circumstances in the manner as was presented, but should have also been careful enough to understand that the mind of a young Lawyer is like a turbulent and procellous sea, on account of the inquietude and uncertainties faced by every young entrant. 19. It requires healthy symbiosis of the Bar and the Bench for any person to continue in the profession; and this is not charity, but an obligation on both sides because, we want the best of talent to continue in the profession and be a succour to those who seek justice. 20. The vision of the Bar and Bench being a ‘unicycle’ is, therefore, not a chimera, but something that each of us have to work for, to ensure that the wheels of justice do not trample upon those who require it the most. 21. 20. The vision of the Bar and Bench being a ‘unicycle’ is, therefore, not a chimera, but something that each of us have to work for, to ensure that the wheels of justice do not trample upon those who require it the most. 21. In the afore perspective, indubitably, this Court cannot find the conduct of the petitioner to be justified, at least in some of its part; nor can I fully find favour with the order impugned, wherein, the young Lawyer has been severely castigated and stigmatised. 22. As I have already said above, the factual matrix involved in this matter is irrelevant to this Court and what I am looking at is only the propriety of the conduct of both sides, within its respective spheres, of being the Bench and the Bar. Though we generally speak of it as two different components, in with the desideratum of it being a ‘unicycle’ and not even a ‘bicycle’. 23. In the afore perspective, I allow this Writ Petition and set aside Ext.P9; to the extent to which the learned Judge has ordered the removal of the petitioner from the list of Advocates maintained for being appointed as a Commissioner, but confirming every other directions therein qua the amount of remuneration (‘Batta’) mentioned in it. 24. On the part of the petitioner, I besiege upon her to be a flag-bearer of the best traditions of this profession and to get ready for the future that awaits her, which, undoubtedly, would be the most decorous, once she understands the manner of working of the system. She should be advised not to treat commission ‘batta’ as being remuneration, but only as an honorarium, given as an honour for being chosen as a Commissioner by a Court - to do what it ought to do for itself. This is true not only about the commission and ‘batta’ but about every component of the judicial system, for which, perhaps the Bar has an equal, if not greater, role as the Bench.