Musings At Law- XXI
The legal profession is a noble one. Lawyers are in the business of serving those in distress. It is not a business or commerce. All these are platitudes. They are very easy to mouth and advise others. It is like castor oil – easy to recommend to others. There are decisions galore from the Supreme Court downwards, on the precipitous fall in the standards of the profession. Tomes have been written on Ethics in the profession and the need for Seniors in the Bar to show the way and lead by example. Every now and then, the Bar Associations invites leaders in the profession, to address the juniors, on career advancement without compromising on principles.
It was a Wednesday afternoon session in the Bar Lecture Series. The topic of lecture was “Ethics In the Legal Profession- My Experience” from a very well respected Senior Advocate. A soft, suave practitioner, with a roaring clientele. The hall was full. The speaker talked of Mahatma Gandhi the lawyer, and the sacrifices made by freedom fighters who were from the legal fraternity. He got anecdotal with his experiences and how he felt proud to be trained by a Senior who was the epitome of integrity. He said, “I would urge the junior members of the Bar to practice ethics in the profession to their strategic advantage. It would enhance your image and reputation in the Bar, and you can peg your career advancement, on sure foundations of laudable principles”. There was loud applause and the speaker basked in glory.
Come the next day, Thursday. I am sitting at home, in the evening tucking into my Cardus in the Covers for the nth time. An elderly, pious, Brahmin gentleman in orthodox attire sought my name. I introduced myself. I am giving his name out- Rajagopal. He handed over a case bundle with the docket in the name of the Senior Advocate’s office as A & Co, the speaker, the day before. There were tears in his eyes as he revealed his status, as on that date. He said, the Senior Advocate called him on the morning of that very Thursday: “Rajagopal, your writ petition is listed before the High Court coming Monday. I am unable to appear for you, as I have become the retainer counsel for your employer against whom the writ petition has been filed. In fact, since this client has retained us for all their litigations, I may be appearing against you itself, in this case as I am not personally on vakalat for you. You may kindly engage some other advocate to pursue your cause. Good Luck. ”
I promised to help Rajagopal, as well as I could. I filed change of vakalat and the matter was listed before a very tough judge. I found that the Senior Advocate’s firm A&Co had filed the petition before the labour court originally under Shops & Establishment Act, against the removal from service of Rajagopal for misappropriation of Rs.750/-, which Rajagopal swore, he was not guilty of. The employer defended the petition contending that they were a joint sector company, and as such vide a Government Order (G.O.) , such joint sector entities were exempted from Shop Act proceedings. The labour court dismissed the petition as not maintainable.
Our Senior Advocate’s firm advised a writ petition, challenging the dismissal. It was obvious that the writ petition was not the proper remedy. But it was now pending for 8 years when it got listed for final hearing. To withdraw the writ petition and go the proper route, would kill Rajagopal and his family of wife and 6 children, four of them minors. I hit upon an innovative idea. I filed a petition to amend the prayer in the writ petition. Instead of challenging the order of the Shop Act authority, I sought permission to impugn the order of dismissal passed by the joint sector company. Since it was a joint sector entity, Art.12 of Constitution would enable it to be an Authority to sustain the writ petition.
Come Monday, it was listed as Item 1 before the 14th Court. This Judge was notorious for his irritability and dislike for juniors, who argued with confidence. He was a terror those days and even went to Supreme Court, Judge: “What is this ridiculous petition after 8 years of the writ petition being pending. And 15 years, after you were removed from service. Why now? You could have waited to file it at the writ appeal stage, after I deservedly dismiss this writ petition. Who gave you such a advice? What do they teach junior advocates these days?”
Judge bemoaned to Senior Advocate/Speaker who was now defending the employee. I felt like exposing the role of the Speaker, but I decided it would be wasteful, before this Judge who was already fuming for my novel attempt. Before I could muster courage to say anything, Judge: “I think such petitions deserve to be treated with utter contempt. If you don’t want this Court to hear this case, you could have said so. Why come up with this subterfuge.”
A glorious opportunity I did not want to miss. “If your lordships has made up your mind even before I have begun my submissions, I am ready to take my chances before another Judge…..” Judge: “This Court is not inclined to hear this case considering the haughty attempt of the Petitioner to change the entire complexion of the case, after 15 years of its commencement and 8 years of its pendency before this Court. The counsel has angrily expressed his willingness to take his chances before another Court. So be it. Post the matter before Hon’ble Chief Justice for appropriate orders”. I thought it was God’s will that the fate of Rajagopal, was taking a critical turn for the good.
The writ petition got listed before Justice Prabha Shankar Mishra. A Judge who was famously notorious for ‘assumption of jurisdiction under Art.226 of Constitution of India than abdication’. Judge: “I do not understand the conduct of the employer, a joint sector firm. Before the Shop Act authority, you got the poor employee thrown out on the ground that G.O. exempted the employer. Fine. And when the Petitioner now files an application to amend the prayer to challenge the original order of dismissal by the employer, you are saying Art.226 is inapplicable. I deprecate this blow hot blow cold conduct. It is downright reprehensible. I find from my home work that the State Government has two nominees on the Board of the employer. There is one nominee from a public financial institution also. Such control is more than sufficient to bring the employer within the meaning of Art.12, to make it amenable to writ jurisdiction. Who has filed this counter affidavit denying sustainability of the writ petition? I am directing notice to all the Directors of the company to appear before this Court at 14.15 hrs tomorrow. Proceedings adjourned.”
What a sudden turn of events! And who calls my Senior that evening? The Speaker. “Brother, two government nominees and the public financial institution nominee have made it clear that they will not appear before the Court. They have made it clear that they have nothing to do with this and it is for the other Directors and company to sort it out. Only you can help me at this stage. I have advised the employer to settle all the terminal dues of your client, as he has gone beyond retirement age, including permissible increments. The employer is ready for this compromise. Rs.7.5 lakhs and I have asked them to make the Demand Draft ready. Please come to court tomorrow and ensure that the order directing the Directors to appear, be rescinded”.
Next day morning. 10.30 am. My Senior, “Milord, my client has entered into a compromise. The employer has realised their folly and agreed to produce Rs.7.5 lakhs in full quit. The writ petition is getting allowed with back wages plus increments etc. Thanks to the stern message from your Lordship, in no uncertain terms, the employer has come beseeching to us. The majesty of this Court stands vindicated and I bow to it.”
Judge: “Counsel, I do not agree with your submission. Let the employer settle the claim. That is your concern and theirs. Not mine. The employer cannot play with the Court. Taking one stand before the court below and another here. They are playing with fire and they need to burn and pay the price. They cannot take the court for granted. I am surprised that you are urging this when the employer’s counsel is hiding beyond you. My order stays. We will hear at 14.15 hrs”.
My Senior: “I am sorry. The entire exercise I am engaged in and your lordship sees merit in, is for what? Just so that my client gets the relief. The majesty of this Court is in no way slighted if the Directors do not appear, when the matter is getting compromised. The employer has erred. They have realised the wrong ways. And most importantly, my concern is not so much for the majesty of this Court, as it is for my clients’ family of wife and 6 children. I have asked them to come today knowing fully well the way this Court would react. Please see them so that you will take mercy. If your lordship insists on the appearance of the Directors and they are not obliging, for any reason, the sufferer would be my client and his family. The matter may be escalated to the top court. The majesty of this Court may be vindicated even better. But my clients’ cause may still be hanging fire, with no certain closure. My submission is selfish. I agree. But, I feel your lordship can record what has transpired in these proceedings and how the employer came on bended knees, to settle the claim, and the majesty of the Court was vindicated and compromise came about. The inclination of your lordship to pass such an order, I can see. Please go ahead and pass it. It will shine as a beacon and as a beautiful precedent warning employers from playing truant with a constitutional court. My client can also go home with the relief he is so desperately in need of….“
Judge: “Counsel, I appreciate your candid confession that your submissions were selfish. I feel my anger dissipated that very moment. Ultimately, vindication of the majesty of the Court would mean little, if the litigant goes away empty handed. Closure is there only when there is relief at the end of the tunnel. Go ahead and compromise the case. I will deliver my verdict at 14.15.”
As he promised, Justice P S Mishra delivered a verdict at 14.15 hrs, which is a reported one, for those who may care. Incidentally, our client Rajagopalan got the cheque for Rs.7.5 lakhs from the Speaker, who went lyrical on Ethics in the Legal Profession. Hypocrisy masquerading, got morphed into poetic justice.
(Author is practising advocate in the Madras High Court)