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Judgment
Ranjit Singh, J
This Appeal came up for hearing on 2nd July, 2015. None had chosen to appear. Still, the Appeal was adjourned to next day. When none appeared on 3rd July, 2015 the Appeal was dismissed for non-prosecution. An application (Misc. Case No. 608/2015) has now been filed by the appellant or recall of the order dated 3rd July, 2015. The reason given in the application is that strike was declared by the DRAT Bar Association which continued on 2nd/3rd July, 2015 also. It is stated in the application that though Mr. J.S. Rana, Counsel for the appellant/applicant reached New Delhi but he had very serious apprehension about strong adverse reaction from the members of DRAT Bar Association who had assembled there in strength and were telling the Advocates that they must not appear before the Appellate Tribunal on account of strike call given by them. It is also stated that the appellant filed written submission with the office of the Registrar which would indicate that the Counsel for the appellant was present in the premises on 2nd July, 2015. It is averred that on account of compelling circumstances to which detailed reference statedly has been made in the paragraphs of the application, the Counsel for the appellant could not physically appear before the Tribunal.
Continuing with the reasons for non-appearance on 3rd July, 2015, it is stated that the DRAT Bar Association had extended the strike call and the same state of affairs prevailed on 3rd July, also. It is accordingly pleaded that the order dated 3rd July, 2015 be recalled.
The reasons, as disclosed in the application would clearly show that the Counsel had reached the location and did not put in appearance because of the strike call given by the DRAT Bar Association. The Counsel has conveniently accepted the call for strike when apprised by the Counsel and thus participated in the strike. The Counsel may have to apprise himself about the law in this regard which has been discussed in detail in Misc. Case No. 538/2015 titled as Neelam Nagpal v. Syndicate Bank, and two other connected matters, decided on 9th July, 2015, reported in MANU/DD/0049/2015 : IV (2015) BC 120 (DRAT). This Tribunal had held that the absence of Counsel due to strike call not be a legal and valid reason or sufficient for recalling the order passed dismissing the Appeal for non-prosecution, The order passed by this Tribunal in Neelam Nagpal's case (supra) is reproduced as under:
"This is not one of those routine run of mill cases seeking recall of the Appeals dismissed in default. This case is a reflection of serious intrusion by privileged members of community called gentleman lawyer and officers of the Court in the administration of justice. Be it remembered that the central function of legal profession and lawyers is to promote the administration of justice. When the justice suffers at the hands of those meant to serve the cause of justice, being officers of the Court, it calls for serious notice.
Ignoring the norms worthy of the confidence of community, Advocate in this case has arrogated to state without any compunction that he did not appear in this case pursuant to the call for strike. The Counsel has made it look so easy as if this would justify his action and this Tribunal will have no option but to succumb to the desires of a few errants who have been responsible for this mayhem without rhyme or reason. It is not even a case of simple call for strike to which the Advocates, like one in present case, are seen as willing participant but a case where a few putative delinquent Advocates forcibly blocked the entry of litigants and those willing to plead by crowding the corridors leading to Court room and then by bolting the door from outside.
Can any Court or Tribunal charged with the duty of administration of justice ignore it and bear it in silence? If it is done, it will not only be a failure on the part of Tribunal to perform its judicial duty, but also failure of administration of justice. It would even be in violation of the clear mandate of law laid down by the Apex Court.
With deep sorrow and sense of extreme pain, let me recapitulate this sordid episode perpetrated by a bunch of Advocates, which has left an unbearable scar on the cause of justice and justice delivery system denting it to heal with the balm of passage of time.
On 30th June, 2015 once the Tribunal has retired to its Chamber after exhausting the cases listed for the day, Registrar of the Tribunal came with a copy of Notice signed by B.S. Nagar, showing himself to be President of Debts Recovery Appellate Tribunal Bar Association, revealing that the said Bar Association had resolved to call for strike for indefinite period w.e.f. 1st July, 2015. All members were requested to abstain from work before Debts Recovery Tribunals and Appellate Tribunal at Delhi, Chandigarh and Jaipur. This Tribunal took up the cases listed on 1st July, 2015 and dealt with those though no Advocate or litigant appeared.
The present Appeals were listed on 2nd July, 2015 and were called in their turn. To give chance to the litigant or her Counsel, the Appeals were adjourned to 3rd July, 2015 though, strictly speaking, these Appeals deserved to be dismissed on 2nd July, 2015 itself as per the mandate of law. This mandate, however, was followed by dismissing these Appeals for non-prosecution when none appeared upon these being called for hearing."
While the Tribunal was in the amidst of taking up the remaining cases on the Board, a gutsy lady law officer of one Bank barged into the Court room to appear in the case of the Bank which was yet to reach. Following her, a few of litigants trooped in to reveal the happenings outside the Court room. The manner in which the lady law officer had entered the Court room clearly revealed that she had forced her entry despite resistance. She and others who had entered behind her clearly showed that some Advocates had blocked the passage and the door and were forcibly preventing the litigant or lawyer willing to appear from entering the Court room. This aspect was even reflected in the orders in these Appeals and is reproduced below for ready reference:
"On 11th May, 2015 the Counsel for the appellants had taken time to remove certain objections. No action has been taken in this regard. The case came up for hearing on 2nd July, 2015 but none had appeared on behalf of the appellant. In the interest of justice, the case was adjourned to today to wait the presence of the Counsel. None has chosen to appear today. Dismissed for non-prosecution.
Before the order could be signed, appellant Smt. Neelam Nagpal has appeared and prayed for recall of the order on the ground that she was prevented by the lawyers from appearing and so could not appear when the case was called. Let her move an appropriate application for recall of the order as the order has been pronounced in the open Court.
From the facts as brought out, it is noticed that the lawyers are interfering with administration of justice by striking work and by preventing the parties to appear. Hon'ble Supreme Court has held that lawyer has no right to go on strike or give a call for boycott not even on a token strike. (See : Ex. Capt. Harish Uppal v. Union of India, MANU/SC/0008/2003 : VII (2002) 2 SLT 229 : (2003) 2 SCC 266 (sic 45). In Ramon Services Pvt. Ltd. v. Subhash Kapoor, Appeal (Civil) No. 6385 of 2010, decided on 14th November, 2000 the Apex Court has held that no leniency can be shown to the defaulting party. It is held that defaulting Courts may also be contributory to the contempt of the Apex Court.
A copy of this order be sent to Respondent Syndicate Bank."
Alarmed at this bellicosity and purblind attitude interfering not only to administration of justice but to the very existence of part of justice delivery system, action was initiated to seek Police help though after dealing with the cases on the Board.
Will it be a justice now to ignore their serious onslaught on the institution of the judiciary as such to which the Advocate in this case has abetted by absenting himself?
Persons belonging to legal profession, termed as elite of society to whom the citizen look upon with hope and expectation to get them justice, have acted in a manner to belittle the institution on which they survive. This is the conduct of guardian of legal system and officers of the Court.
Following the mandate of law, this Tribunal has gone on with the case passing effective orders. These Appeals were accordingly dismissed though for non-prosecution. These could be put on tract if the appellants came up with a reason to satisfy the Court that there was sufficient cause for non-appearance when the Suit was called. Order 9 Rule 3 entitles the Court to dismiss Suit when neither party appears when the Suit is called. The ground for restoring a Suit is existence of sufficient cause, which term is not defined anywhere. It is a question of fact depending upon circumstances of each case.
Cause given in this case to seek restoration of the Appeals is the strike call. Can it be taken as justifiable cause to see if it was sufficient cause for non-acceptance? In these applications filed under Order 9 Rule 9 of C.P.C. read with Section 151 of C.P.C. for restoring the Appeals dismissed in default, it is averred that, after filing the above Appeals, the Counsel could not appear owing to the strike called by DRAT Bar Association. It is further stated that by the time appellant made headway to the Court, the Appeal had already been dismissed on the ground of non-prosecution. It is then stated that absence of the appellant's Counsel was due to strike observed by the DRAT Bar Association and hence no mala fide or negligence can be attributed to the appellant. The relevant averments in Paras 3 and 4 of the applications are as under:
"3. That after the filing of the above Appeal the Counsel could not appear owing to Strike called by DRAT Bar Association. By the time appellant made headway to the Court, the Appeal already stand dismissed on ground of non-prosecution.
That the absence of the appellant's Counsel was due to the strike observed by the DRAT Bar Association and hence no mala fide or negligence can be attributed to the appellant."
In support of his plea for recall of the order, the Counsel for the appellants submits as under:
"My submissions are that the cases were listed on 3rd July, 2015 when there was strike in DRAT Bar and that is the reason for my non-appearance in the cases. Otherwise, I intended to appear, in the interest of justice, I request to this Court to please consider the Appeals on merits. I moved these applications without losing even a single day."
It may be appropriate to take note of the details in these cases. Neelam Nagpal has filed these three Appeals. Initially she had filed a single Appeal to impugn the orders passed in three T.As./T.S.A. On 9th June, 2015 when this single Appeal came up for hearing, the Counsel pressed the said Appeal against the order passed in T.A. No. 2/2013 and took time to file separate Appeals in regard to the orders passed in other T.A./T.S.A.
On 11th June, 2015 the Counsel prayed for some time to remove certain defects which remained in the Appeal. For this purpose, the Appeal was adjourned to 2nd July, 2015. Two separate Appeals filed by the appellants also came up for hearing on the said date. The defects remaining in the first Appeal (Inward No. 336/2015) had not been removed. None appeared on behalf of the appellant. In the interest of justice, the case was adjourned to 3rd July, 2015 to await the presence of the Counsel. Similarly, the two connected Appeals were also adjourned, as none appeared to represent the appellants.
Applications have been filed seeking recall of the said orders. These applications came up for hearing on 8th July, 2015. Counsel appeared on behalf of the appellants and requested for a pass-over during the first round. During the second round, a request was made to take up the case at 2 p.m. as the arguing Counsel was not available. These cases being last on the Board were accordingly adjourned to 9th July, 2015 as it was not considered appropriate to wait for the Counsel to appear, who was seeking to put appearance as per his own convenience.
Today, the Counsel for the appellants initiated his arguments on merit in the Appeal when his attention was invited to the fact that he could have to first make submissions in the applications seeking recall of the order as the Appeals have already been dismissed for non-prosecution. The conceded position thus is that the Counsel for the appellants did not appear on 2nd and 3rd July, 2015 because of the call of strike given by the DRAT Bar Association. The Counsel has not pleaded that he was prevented from appearing. Obviously, he could not have pleaded so as the appellant was noticed to have forced her entry into Court room on 3rd July, 2015 despite being prevented by the lawyers. The act of abstention, therefore, is apparently voluntary and shows that the Counsel had willingly participated in the strike.
In the background as noticed above, what is to be seen is, if remaining absent due to call of strike can be taken as sufficient cause to justify non-appearance requiring the Tribunal to restore these Appeals. Participating in strike by a lawyer or remaining absent due to call for strike or boycott is an act which is not legal. Allowing the prayer to restore the Appeals on the pleaded ground that the lawyer had remained absent due to strike would mean ignoring the gross illegality and allowing it to perpetuate. Once the Hon'ble Supreme Court has repeatedly held that lawyer has no right to strike or participate in a strike which ought to be well within the knowledge of all practising lawyers at least, then the cause advanced by the Counsel for the appellants can never pass the test of being sufficient cause. With all humility at my command, any Court or Tribunal finding such a cause to be justified or sufficient would not only be violating the Supreme Court mandate but may be seen as contributing to the contempt of Court. Besides, such an act of Court would do great disservice to the cause of justice and encouraging the delinquent to resort to such illegal practice.
Just to remind those whose memory may have faded a bit about the law laid down by the Hon'ble Supreme Court, reference may be made here to the relevant observation in the case of Ex. Copt. Harish Uppal (supra) which are as under:
"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, T.V. interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay facts 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. 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."
Thus, the Court has settled the issue leaving no scope of doubt that the lawyers have no right to go on strike or to give a call for boycott, not even on a token strike. The Court has also commanded all lawyers to boldly refuse to abide by any call for strike or boycott, The Court has held that 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 all such calls by Bar Associations are required to be ignored.
The Hon'ble Supreme Court has not only spoken about the right to strike by lawyers but has shown a clear path to tread by the Courts when such a situation is created by strike(s). Courts, it is held, are under no obligation to adjourn the cases because lawyers are on strike. Clear direction for the Courts rather is to go on with the matters on the boards even in the absence of lawyers. The observation that the Courts must not be privy to strikes or call for boycott (highlights by me) would perhaps leave no scope to interfere 'in those cases which are decided during the absence of Counsel due to strike. If it is done, the Courts/Tribunals may be construed to bring privy to strike or calls for boycott. This being the clear mandate by the Hon'ble Supreme Court, the order can be recalled only at the cost of being termed as privy to strike or as a contributory to the contempt of the Apex Court. No Court or Tribunal can dare doing anything which may or may tend to go against the law laid down by the Supreme Court.
Once the Counsel himself has come forward to plead that he remained absent on two days due to strike call, then this cause as given in the applications would not be a legally permissible cause, being in violation of the mandate of the Apex Court. Nothing, in my view, therefore, would remain to examine to see if it can be a sufficient cause or not.
The Counsel in this case cannot plead ignorance about the observation that all lawyers must boldly refuse to abide by any call for strike or boycott. Only exception carved out by the Supreme Court for the Courts to turn blind eye, that too for not more than a day, is in those rare cases, where the dignity, integrity and independence of Bar and/or the Bench are at stake. This can also be in consultation with the Chief Justice or District Judge concerned. In the case, the call by some members claiming themselves to be office bearers of the Bar was to bring disrepute and scandalise the forum, which in itself would be an offence/contempt of Court.
The lawyers remaining absent in the cases ought to have known that the stand of various Bar Councils and Bar Associations was that the lawyer has no right to strike or boycott the Courts. In the case of Ex. Copt. Harish Uppal (supra), the Hon'ble Supreme Court had issued a public notice to all Bar Councils and Bar Associations and after considering the submissions made on behalf of various Bar Councils and Bar Associations, the Court had taken the view as mentioned. Except for Bar Council of U.P., all other Bar Councils and Bar Associations appearing before the Hon'ble Supreme Court had maintained that lawyers have no right to go on strike.
This was not the first occasion for the Hon'ble Supreme Court to express itself in regard to strikes by lawyers. Rather, the Court has consistently been laying down path for Courts and lawyers to follow.
In the case of Mahabir Prasan Singh v. Jacks Aviation Pvt. Ltd., MANU/SC/0706/1998 : 76 (1998) DLT 580 (SC) : IX (1998) SLT 252 : (1999) 1 SCC 37, the Court has viewed that 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. The Court further observed that it is the solemn duty of every Court to proceed with the judicial business during Court hours and no Court should yield to pressure tactics or boycott calls or any kind of browbeating.
In the case of K. John Koshy v. Dr. Tarakeshwar Prasad Shaw, MANU/SC/1313/1998 : 1996 (SLT Soft) 476 : (1998) 8 SCC 624, the Court has held that:
"7......The Court is under an obligation to hear and decide cases brought before it and cannot shirk that obligation on the ground that the advocates are on strike. Therefore, the Division Bench was fully justified in proceeding to hear the respondent and in passing orders on merits. We must also mention that at the relevant point of time, the interim order passed by this Court in the Common Cause, A Regd. Society v. Union of India, pending in this Court against lawyers proceeding on strike was in force whereunder the Bar Associations were precluded from dismembering any member of the Bar who appeared in Court despite the strike call. Under the circumstances the fear of being debarred from membership also did not exist. We are, therefore, of the opinion that despite the same if Counsel did not appear, they are only to blame. The Court in the circumstances did the right thing to proceed to hear the case."
Even the Division Bench of the Delhi High Court has very strongly expressed itself on the subject in the case of B.L. Wadehra (Dr.) v. State (NCT of Delhi), MANU/DE/0296/2000 : AIR 2000 Delhi 266, clearly holding that lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. The Court has viewed that so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association. A lawyer, says the Court, commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust if he abstains from work and is liable for all consequences arising therefrom. It is also observed that the lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. As held by the Court, members of legal profession have certain social legal obligations also that the practice of law has a public utility flavour. The Court has made reference to the Bar Council Rules which requires an advocate to comport himself in a manner befitting his status as' an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an advocate. As per the Court, it is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. This is termed as unprofessional and unethical as well. The strike is held to interfere with the administration of justice which goes to infringe the fundamental right of a litigant for speedy trial of his case. It is, therefore, held that strike by lawyers cannot be approved as an acceptable mode of protest irrespective of the gravity of the provocation and the genuineness of the cause.
The Hon'ble Division Bench has not remained rest content by recording the above noted observation. The Court has gone on to hold that if a lawyer, either in the name of strike or otherwise, obstruct or prevent another lawyer from discharging his professional duty of appearing in Court, he commits criminal offence and interferes with the administration of justice, commits contempt of Court for which he shall be liable to be proceeded against. The Courts have been reminded of their solemn duty in proceeding with the judicial business during Court hours and that they are not obliged to adjourn cases because of strike called. In this regard, it is held that if the Counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. Obviously, the Court should not or ought not become a privy to strike by adjourning the cases because the lawyers are on strike.
These observations of the Division Bench of the Delhi High Court were considered and termed as absolutely correct and approved by the Supreme Court in the case of Ex. Copt. Harish Uppal (supra). The relevant part of the order reads as under:
"In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved."
The view expressed by the High Court in B.L. Wadehra 's case reads as under:
"30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our views, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon v. Home Secretary State of Bihar, MANU/SC/0119/1979 : (1980) 1 SCC 81 : AIR. 1979 SC 1360, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strikes in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, we are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(a) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant's fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation and cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also the practice of law has a public utility flavour. According to the Bar Council of India Rules, 1975 "An Advocate shall, at all times, comport himself in the manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the Court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the case. Lawyers should adopt other modes of protest which will not interrupt or disrupt Court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.
Every Court has solemn duty to proceed with the judicial business during 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 consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.
Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. If anyone does it, he commits a criminal offence and interference with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these Courts.
In the light of the above discussion we are of the view that the present strike by lawyers is illegal and unethical. Whatever might have been the compelling circumstances earlier, now there is absolutely no justification for the continuance of the strike in view of the appointment of the Commission of Inquiry and the direction being issued in this case."
Let us now have a look on what legal luminaries have to say in this regard.
Warvelle's Legal Ethics says:
"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 time pay deferential, respect to the Judge, and scrupulously observe the decorum of the Court room."
Undoubtedly, the Courts also have a reciprocal duty 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. This, however, does not mean, as observed by the Supreme Court, that any advocate or group of them can boycott the Courts or any particular Court and ask the Court to desist from discharging judicial functions.
A distinguished jurist Mr. H.N. Seervai has spoken about lawyers' strike and duty of the Supreme Court in the following words:
"Lawyers ought to know that at least as long as lawful redress is available to ' aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of Court, thereby striking at the heart of the Liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a Court of justice are protected by the law and are shielded by the law to discharge those duties, the Advocates in return have duty to protect the Courts. For, once conceded that lawyers are above the law and the Law Court, there can be no limit to lawyers taking the law into their hands to paralyse the working to the Courts. "In my submission", he said that "it is high time that the Supreme Court and the High Court make it clear beyond doubt that they will not tolerate any interference from anybody or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Court maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill-will."
In an article titled "Legal Profession at the Turn of the Century", the leading Senior Advocate Mr. K.K. Venugopal has opined that the boycott amounts to contempt of Court and the advocates participating in the strike keep their clients as hostages and their interests in jeopardy.
Mr. P.P. Rao, a former President of Supreme Court Bar Association has also expressed that strike by professionals amount to professional misconduct in his article "Strike by Professionals".
The consistent view of all concerned with the justice delivery system, thus, is that the strike is an illegal and unethical mode of protest for which there is no justification whatever may be the compelling circumstances. The legal profession is a solemn and serious occupation. 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. The Supreme Court spoke thus in Re: Sanjiv Datta, MANU/SC/0697/1995 : 1995 (SLT Soft) 1170 : (1995) 3 SCC 619. As per the Court, both as leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and his private and public life. The Court has very aptly said that 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 society has a right to expect of him such ideal behaviour. So much so, the Court has observed that if the profession is to survive, the judicial system has to be vitalised and no service will be too small in making the system efficient, effective and credible. 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. It will be of an advantage to revisit the observations made by the Court in Re: Sanjiv Datta (supra):
"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 the its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in 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 tiredness 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 so(sic) 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 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."
The Court in the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor, MANU/SC/3014/2000 : VIII (2000) SLT 125 : 1 (2001) CLT 145 (SC) : (2001) 1 SCC 118, has clearly held that defaulting Courts may also be contributing to the contempt of the Supreme Court The Court in this case has observed that no leniency can be shown to a defaulting party if the circumstances warrant to put such party back in the position as it existed before the strike. The adversary, in that event, is entitled to be paid exemplary costs. The litigant suffering costs has right to be compensated by his defaulting Counsel. The Court itself can pass effective orders for dispensing justice. The Hon'ble Supreme Court has also to an extent deprecated the practice on the part of the some Courts showing sympathy with the Bar by not agreeing to dismiss the case for default of appearance of the striking advocates. The Court has, therefore, given a word of caution to say that 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 the Court in Mahabir Singh's case (supra). The Court has further said that inaction will certainly contribute to the erosion of ethics and values in the legal profession.
Certainly this Tribunal cannot be seen as defaulting and thus contributing to the contempt of the Apex Court. The impugned order dismissing the Appeals in default for non-appearance of the Counsel who came otherwise to seek recall of the same pleading that he did not appear because of the strike call, cannot be recalled. The Counsel has failed to follow the mandate of law laid down by the Apex Court. Would not participating in the strike give an impression of expression of want of confidence in the judicial Forum? Action of the Bar may amount to scandalising the Court undermining its authority and thereby committing contempt of the Court. In this regard, the view expressed in Brahma Prakash Sharma v. State of U.P., MANU/SC/0020/1953 : 1953 (SLT Soft) 6 : AIR 1954 SC 10, may be relevant.
In Tarini Mohan v. Pleaders, AIR 1923 Cal. 212, the petitioner's pleaders had refused to appear in the Court pursuant to the resolution passed by the Bar Association to boycott subordinate Court as protest against Courts for alleged ill-treatment of the pleaders. The Full Bench of the High Court held that pleaders deliberately abstaining from attending the Court and taking part in the concerted movement to boycott the Court was a course of conduct not justified. The ratio of law laid down in Tarini Mohan's case (supra) was followed in the matter of a Pleader, AIR. 1924 Rangoon 320, which was also a case of boycott of a Court pursuant to a resolution. The pleader in this case was held guilty of unprofessional conduct.
In view of law laid down above, any indulgence shown by recalling the order would convey an impression that this Tribunal is contributory to the contempt of the Hon'ble Supreme Court, This Tribunal dare not do so. The binding precedent of law laid down by the Hon'ble Delhi High Court, which was whole-heartedly approved by the Supreme Court would also directly stare at this Tribunal to have any guts to recall the order dismissing the Appeals in default when concededly the Counsel had not put in appearance pursuant to the strike call given by a non-functional Bar Association.
Despite clear legal position, the Counsel is given hearing with full forbearance. It goes without saying that the lawyers' profession ordains a high level of ethics. This is a case where the lawyers not only gave an illegal call for boycott and strike, which is contemptuous in nature, but also arrogated to themselves to bolt the door of the Court room effectively preventing even litigants to enter. This is a case of serious affront to a judicial system. Attempt was made to scuttle administration of justice. Functioning of the Court was kept on despite this aggressive attitude exhibited by some of the advocates before whom others succumbed to stand up. This is the position despite the command of the Hon'ble Supreme Court in the case Ex. Capt. Harish Uppal (supra). A stage was reached when request for Police help had to be made. This communication addressed by this Tribunal did not receive any response or any action from the Police. It is believed that the firm attitude adopted by this Tribunal in dealing with the cases and disposing them as per the requirement of law as per command of the Hon'ble Supreme Court, that advocates who are behind the call withdrew the strike call and voluntarily started appearing before this Tribunal. Any soft-handling would have led to constitutional crisis as the administration of justice would have come to standstill seriously eroding the very existence of the institution as such. These may appear to be strong words, but the factual position as existed on ground may be much more alarming of being put on record for want of words at my command.
Accordingly, I am of the considered view that no case for recall of the order is made out.
Only solace, I can offer to the appellants is to make a claim for the loss she has suffered, if any, from the advocates who are responsible for this illegal action. For the reference can be found in the law laid down in the case of Ex. Copt. Harish Uppal (supra).
The applications are accordingly dismissed.
In view of the above, no case for recall of the order dated 3rd July, 2015 is made out. The application is accordingly dismissed.