RAJINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Before referring to the question which cropped up for our adjudication, at this stage we consider it appropriate to comment on the conduct of the counsel for the petitioner Sh. Ram Sarup Saini, who had filed this writ petition. The petitioner is the father of Satya Bir Singh Kaushik, who was convicted by Court Martial and is lodged in District Jail, Bareilly (Uttar Pradesh). The challenge in this writ petition is to the order of conviction passed by the Court Martial, Rajinder Singh petitioner claims to be resident of village Budha Khera Tehsil and District Jind. On that account, he filed the present writ petition in this Court, otherwise, the incident which resulted in the conviction of Satya Bir Singh Kaushik or his trial by the Court Martial and the order of conviction took place beyond the territorial jurisdiction of this Court.

(2.) The case having been adjourned on two dates of hearing, when the counsel for the petitioner was unable to satisfy about the jurisdiction of this Court to entertain the writ petition, we requested the standing Counsel of Union of India to assist us in this matter. He succeeded in securing the help of Major V. C. Chitravanshi, from the Legal Cell of the Army at Chandimandir. Major V. C. Chitravanshi appeared before us on 9/02/1993 and he was posed the question which was incorporated in our order dated 9/02/1993. Today he has again appeared and has addressed. However, Shri R. S. Saini, Advocate, though appeared unofficially, did not address arguments. He submitted list of books. We have taken out those books and have studied the same and we are preparing the judgment accordingly. Shri Saini did not address the Court on account of lawyers being on strike. When an Advocate accepts brief of a litigant on acceptance of fees, he is duty bound to conduct the case in Court. He becomes a privileged person who can address the Court under the provisions of the Advocates Act, 1961. Under Ss. 29 and 30 of the Advocates Act such an Advocate engaged by the litigant has a right of audience in the Court in the cause. Lawyers engaged in the cases by intentionally and deliberately absenting from the Court when cases are called are not serving the cause of the litigants, their paymasters. Appearing in Court and not getting presence recorded and further not arguing the case is still worse and is unprofessional and unethical. Present is such a case where though Shri Saini has come to the Court, but does not want to address the Court or to get his presence recorded. What legal sanction the Association of Lawyers has to give call to the Lawyers to go on strike is beyond our comprehension. The fear in the lawyers as is being projected by Mr. Saini, not to argue the case of being punished by the Association for his appearance in Court on account of the call given by the Association to go on strike or in other words to abstain from appearing in Court, has no legal basis. The functioning of the Courts in the matter of administration of justice is not to be regulated or controlled by the Association of lawyers, in the manner of giving calls to its members to go on strike and not to appear in Courts in their cases which is not legal. When such association of lawyers have no arrangement for providing work (judicial work) to its members for their livelihood, how such calls are given for strike by such associations. Further comments can only be given as and when action of any Association in imposing penalty on a lawyer is challenged in any Court. If the position is examined from a different angle, the result would be alarming. The primary function of the Court is to administer justice to and between the parties approaching Courts. The Courts would be filing in their duties in not performing such a function merely on the ground that lawyers choose to abstain from appearing in Courts. The Judges are supposed to train themselves to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel. There is no legal impediment in the way of the Court not to administer justice when lawyers abstain from appearing in Courts or they appear but refuse to assist the Court in the administration of justice. Code of Civil Procedure contains provisions for proceeding with cases where parties fail to appear. What is more unfortunate is that the taw officers of the offices of the Advocate General, Punjab, and Haryana are also not putting in appearance on behalf of the States they represent in the cases despite the fact that they are paid government employees. It is unfortunate that the States have not taken any steps to protect their interest by causing appearance of their Law Officers or other officers from the concerned departments on the days their law officers are not appearing.

(3.) It cannot be assumed that the Judges can have paid holidays without working on a day when the members of the Bar choose to abstain from work or refuse to appear in the Courts to protect the interest of their clients. In our opinion the Judges cannot treat a day of strike as a paid holiday. They are supposed to work and dispose of the cases themselves, even when unaided by lawyers of the parties by going through the records of the cases. They cannot shirk their responsibility and duty of administration of justice by simply showing helplessness. As is said the show must go on, the work in the Courts must go on. Present is such a ease where we have gone through the books mentioned in the list provided by Mr. Saini, Advocate, and the case law submitted by Major V. C. Chaturvanshi, from the Legal Cell of the Army. In a way, we are thankful to Mr. Chaturvanshi, for assisting us in the performing of our function.