JOSE KUTTIYANI Vs. HIGH COURT

JUDGEMENT

(1.) THE petitioner is a practising Advocate of this Court and is also a member of the Kerala High Court Advocates' Association, hereinafter called the "association". A resolution moved by some of the members condemning the conduct of the Hon'ble Chief Justice of the High court in the constitution of a Full Bench which passed an interim order in a case by majority and a request to the Chief Justice to avoid repetition of such incidents was passed by the General Body of the Association on 8. 10. 2003. THE full text of the resolution produced as Ext. P2 in the W. P. is extracted hereunder for easy reference: "we the members of the Kerala High Court Advocates' association express our grave concern over the manner in which a case which ordinarily ought to have been heard by a single judge having jurisdiction over the subject, was listed before the Division Bench presided by the Hon'ble Chief justice, at the request of the counsel for the petitioner without an express order stating reason for the same, and when the brother judge disagreed on the order to be passed in the case, instead of delivering separate orders and referring the matter to another judge for opinion, on the same day passed an order in the chamber referring the matter to a Full Bench apparently on questions of fact, constituted a Full Bench of three judges presided by the hon'ble Chief Justice, placed the matter before the Full Bench in the afternoon of the same day before the reference order was made known to the parties to the litigation and an interim order was passed in favour of the petitioner; And further resolve to request the Hon'ble Chief Justice to ensure that such incidents do not take place in future in the better interest of judiciary and credibility of the institution". THE resolution when moved was stated to be objected to only by eight members including the petitioner, and the petitioner appears to have maintained the view that the resolution amounts to criminal contempt of court. THErefore after passing of the resolution, the petitioner filed Ext. P5 application dated 14. 10. 2003 before the Advocate General under S. 15 (1) (b) of the Contempt of Courts Act, 1971 for permission for initiating contempt of court proceedings against one of members who moved the resolution and the president of the Association. Consequent upon filing of the application by the petitioner before the Advocate General, the Executive Committee of the Association in their meeting held on 17. 10. 2003 decided to suspend the petitioner from the primary membership of the Association pending enquiry with effect from 18. 10. 2003 and the same was communicated to the petitioner by the Secretary of the Association vide Ext. P6. THE reason for the petitioner's suspension is given in the show cause notice produced as Ext. P7 which is as follows: On 18. 10. 2003 the General body of the Association passed a resolution in which you also spoke and participated in the voting. Now it has come to the notice of the Executive Committee that you have filed a sanction petition before the Advocate General to initiate criminal proceedings against adv. Babu Varghese our President and Adv. M. K. Damodaran who moved the resolution stating that the resolution would amount to contempt of court. THErefore you have acted against the decision and the very best interest of the association. Hence you are called upon to show cause why disciplinary action should not be initiated against you for acting against the Association. If you have any reply to offer it may be done within 15 days from the date of receipt of this notice. If you fail to reply to the show cause notice, it will be presumed that you have no reply to offer. THE copy of the minutes of the meeting of the Executive committee held on 17. 10. 2003 is produced as Ext. P8. THE petitioner is challenging Exts. P6 to P8 proceedings of the Executive Committee of the association suspending him from the primary membership of the Association and initiating disciplinary proceedings on the ground that the Executive Committee does not have the authority to suspend him and even if they have the power, the filing of an Application under S. 15 (1) (b) of the Contempt of Courts Act before the Advocate General against one of the members who moved the resolution and president of the Association alleging contempt in the resolution passed does not amount to any indiscipline warranting suspension. THE relief sought is for quashing Exts. P6 to P8 proceedings and for an order prohibiting the association from proceeding with the enquiry instituted against the petitioner alleging indiscipline and misconduct for challenging the resolution as one amounting to criminal contempt of Court under S. 2 (c) of the Contempt of Courts act. THE respondents filed counter affidavit denying the allegations and praying for dismissal of the Writ Petition as, according to them, the Writ petition is neither maintainable nor is there any justification for this Court to interfere with the disciplinary proceedings initiated by the Association against one of it's members.

(2.) I have heard counsel appearing for the petitioner, sri. George Poonthottam, senior Counsel Sri. Mathai M. Paikadey, sri. G. Janardhana Kurup and Sri. K. T. Sankaran appearing for the respondents.

(3.) AFTER going through the writ petition, counter affidavit and after hearing counsel for the petitioner and also counsel for the respondents, I feel there is no need for this Court to decide for the purposes of this case as to whether the resolution amounts to criminal contempt of Court under S. 2 (c) of the Contempt of Courts Act as alleged by the petitioner, because the matter is pending before the Advocate General for his decision and this court need not preemptly decide that issue. However, this Court has no escape from deciding the question whether a Writ Petition will lie against the association, and if so, whether the petitioner is entitled to the relief prayed for that is cancellation of the suspension and disciplinary proceedings initiated.