Musings At Law-VII
It is not as if I have been Musing in any particular or chronological sequence. Only the first few, I had put together in my mind, and shared it, in print. Thereafter, it has taken its own shape. I have been inundated with mails and responses. I am aware that the reason is primarily because, those at the end of the mailing list, have far too much time to spare, and are ready and compelled to read almost anything and everything. But, some responses have been triggering anecdotes, which have suddenly surfaced in my memory card, to be shared, as you may notice. One such is this one, when a friend shared with me his experiences with many senior advocates and it included the late M R Narayanaswami (MRN) , a doyen of the Madras High Court Bar.
He was often portrayed as a tough cookie. He did his homework well. His prepared notes in the mind, were legendary, as he reeled of the facts in a torrential downpour and law was his obedient slave. He never gave a cause a miss, and never gave a quarter and sought any too. He was noted for his appearances for Managements and was perceived as ‘ruthless and heartless for he never conceded an inch ’. I recall once, before Justice S Mohan, sitting in the 3rd Court Hall, who too is no more with us (and therefore easy, ready and available for naming), when he was arguing on behalf of the management and stood his ground, refusing to concede any benefit , at a difficult time for the labour force, in near Covid19 times for the industrial unit, despite the Judge’s repeated requests, the lady advocate on the other side, shed tears, unable to argue further. MRN disdainfully alluded to it as ‘crocodile tears of little consequence’. Even the Judge was annoyed, and asked MRN to hold his tongue. That was MRN in a nutsheel. Just as a contrast, to the man and advocate, I had occasion to interact with, as in these Musings.
It was a writ petition which was filed by an association of workers’ against a Circular issued by a nationalised bank. The writ petition came up before Justice K S Bhakthavatsalam ( who too is no more, as you may have guessed already). My Senior appeared for the bank. Typically, he chose to send me as his Super Senior Advocate, to derfend the interest of the bank.It was a cause of high stakes, having Pan India implications. But, I had little hesitation, as my Senior always believed in this crude dictum- Even when I go to the barber I am always glad to be served by the juniormost. I was always trained so, by my Englishman Senior Mr.Small. These are professions in practice and training ( Small believed lawyers and barbers were no different, in providing service) . Unless you willingly offered your head to the junior professional, how would he ever grow to become a senior pro.).So, it was no big shakes for me, to appear on behalf of the bank.
Both sides argued. I put up a stiff defence. But, my understanding was that it was a losing cause. The bank’s circular was indefensible, even to me, as a beginner in the profession. It was easy pickings for the other side practitioner, an experienced hand, who went on to become a Judge himself, to go hammer and tongs against the impugned order. The Judge was very apologetic to me.
He said, “ You did a good job. You could not have done better. Chattiyil Irunthalthane Aapayil Varum- Without cooked rice in the pot, how would it come out in the ladle for serving”. As Nani Palkhivala always said 90% of the cases win or lose by themselves. 5% of the cases are for the lawyers to make a difference. The rest 5% is for Judges’ to exhibit their stupidity. .This case is in the first 90%. So, you have nothing to feel bad about.”
I rushed near the Bench and urged the Judge to print the name of my Senior, as it was a losing cause. I openly said that the PSU bank would not appreciate a raw junior defending their interest, when it was my Senior who was individually in their panel. Judge refused to oblige and printed my name, as the one who argued the case, for the bank, for and on behalf of my senior. My Senior was not a worried man. He told that his training under his Senior Small had made him an advocate of sterner stuff, and he told me , “ Not to worry even if the Bank removed me from the panel”.
As events unfolded, the bank did not remove my Senior from the panel. Instead, they took away the ‘brief’ from us. They engaged Mr.MRN to argue the appeal. On seeing my senior’s name in the order, MRN asked him, “ Why are you not filing the appeal for the bank?”, Naturally, my senior updated MRN on what had transpired, in the proceedings before the learned single judge. MRN asked my senior to send me to his residence by 06.00 am the next day.
I went to his residence at No. 1, St. Marys Road, Chennai-600 028 promptly and well in time, and MRN was seated on a jhoola in the portico, having his morning cuppa. I introduced myself and he immediately plunged into the case. He said, “ Do you remember the case. Can you now briefly explain the contents of the impugned order and submissions on either side and the orders of the learned judge”. I took it as a glorious opportunity, as if trainee singer had a chance to sing before M S Subbulakshmi. No mean occurrence. Once in a life time chance. I sang my very best. It took me less than 10 minutes to oblige MRN. He said, “ Do me a small favour. Today is Thursday. The appeal is to be listed coming Monday, before the First Bench comprising Officiating Chief Justice S Mohan. Please be present at 10.30 a.m. without fail. Well done. I will take care.” I apprised my senior of these developments, and he said I better keep the appointment.
I surely did not know what was in store. Why was I requested to be present at the time of the hearing? Surely, not to assist MRN, a giant. But, nevertheless, with anticipation, I was seated alongside MRN, come Monday, in the First Court. When the appeal was called up, the caveator was also on call. MRN got up. OCJ said, “ MRN, we are admitting the appeal and as for stay, we would like to dispose of the appeal itself next week, so no interim orders.” MRN: “ I do not know, what is it the bench saw in this appeal to admit it? May I be enlightened?” Mohan; “ What? We saw you. That is enough. There must be something there to warrant an admission. We will see what it is later” MRN: “ Sorry, I am here on a different mission .” MRN then apprised the First bench on what all had taken place , leading to the ‘shifting’ of the brief from my senior to MRN et al. MRN then said, “Mi Lords, it is time clients’ learn some decency and decorum. They cannot assume every case deserves to be won. And if the lawyers fail , for no fault of theirs , they dare not shift allegiances mechanically. And that too, a PSU bank, in a case which impacts Pan India, cannot behave like an ordinary litigant. That too insulting a junior member of the Bar, who had done as well as he could do, in the given circumstances. I would like your Lordships to call upon the bank managers, who I have insisted were present, to convince this Court on the ‘why’ for the change of lawyer and ‘what’ was in the Circular that was even remotely defensible or the ‘grounds’ for challenge of the single judge’s order, which is perfectly fine”. MRN sat down. I was beaming.
Mohan : “ We would like the Bank officials to step forward. Did you understand what ‘your own counsel’, the one and only MRN said. Please enlighten us as to ‘why’ you took away the brief from your previous counsel and what are your ‘grounds’ for appeal? Bank Officials: Mum and glum. Mohan, “ Have some respect for the legal fraternity. Do you expect your panel advocate to be present in all courts at the same time. Is it humanly or practically possible? Have you read the vakalat form you have solemnly signed? Please read it now. You have sworn to enage your panel advocate not only by name, but given him the right and responsibility to engage some other representative counsel also, of his choice. Did you sign the vakalat without reading, or knowing its implication? May we take the liberty of being rude . Even when you go to a barbers’ shop, you cannot and do not expect to be served by the Senior barber alone. He will have his deputies and there may be few other chairs available. Can’t you or won’t you sit in any one of the chairs to be served by others, than the senior. That too, when you were in a hurry. Is the legal profession worse than that ? Even in marriages, when chefs or cooks are arranged, you will engage only a ‘team’, not the individual. Not possible to seek a different construct. So, your taking offence to the appearance of the junior is unacceptable. It is an insult to the entire Judiciary. Bar and Bench together make the Judiciary, for your kind information. Advocates are in ‘practice’. On a daily basis. There is no difference between the juniormost and the seniormost. That is the beauty of this profession. A 16 year old Tendulkar can bat against a 40 year old spinner and perform great. Can you object to it or admire it? We are deeply disappointed at the conduct of a PSU Bank, as a litigant. We would like to refer this matter to your Corporate office, and also write to the Finance Ministry to instruct the institutions not to indulge in such unseemly conduct.”
The bank officials were literally shivering. They were looking to MRN to rescue them from extreme distress. They did not know what hit them, as the judges were conversing among themselves animatedly. Mohan: “Don’t assume we have no business to intervene in your prerogative to engage the lawyer of your choice. Please understand that it was your lawyer MRN who had magnanimously, in a brilliant exhibition of upholding the propriety of this profession, who brought it to our notice. Therefore, we have every right to intervene, unless MRN intervenes again to stop us in our tracks.” MRN, “ Mi Lords, I am grateful to this Court to have taken note of what I brought to your notice. I did so because 40 years ago to the day, I had a similar experience at the hands of a client . But there was no mentor to guide me then, on what was correct. I got my chance only today. I think the clients need to understand that they were engaging not the individual advocate, as if tied to apron strings. The vakalat is clear. Engagement of a designated Senior Advocate may be different. But not engaging an advocate on vakalat. I was convinced that this junior advocate had done what was possible. He did not lose the case. The bank did not lose the case because the senior had sent a junior. Bank lost the case because the circular was bad. Now that the bank officials would and should have understood what they had done was unpardonable, that may be sufficient lesson for the institution itself. I would request your Lordships to direct the bank to file an affidavit apologising for the change of vakalat insisted on by them, and agree to withdraw the appeal , as not pressed, as it does not deserve an admission. And I understand even the Central Government is not comfortable with this Circular either. That may be poetic justice.” To let it hang tantalisingly, Mohan: “The Bank has insulted the junior advocate’s competence. Why not order costs to be paid by the bank for their unjust conduct?”. It is a shame that they don’t make Advocates and Judges of this genre anymore.
(Disclaimer: Justice Mohan, as Officiating Chief Justice, had penned the Foreword for my first book during this period)
(Author is practising advocate in the Madras High Court).