Madhya Pradesh High Court
Kastoorchand Choudhary vs The State Of Madhya Pradesh on 20 December, 2021
Author: Sujoy Paul
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The High Court Of Madhya Pradesh
WP No. 9873 of 2018
(KASTOORCHAND CHOUDHARY Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 20-12-2021
None for the parties.
The advocates are abstaining from work today.
The Apex Court in the case of Harish Uppal (Ex-Capt.) v. Union of
India and Anr.; (2003) 2 SCC 45 has opined that despite strike of the
Advocates, the Courts may decide the matters on merits. The relevant portion
of the aforesaid judgment reads as under :-
"20. Thus the law is already well settled. It is the
duty of every Advocate who has accepted a brief to
attend trial, even though it may go on day to day
and for a prolonged period. It is also settled law
that a lawyer who has accepted a brief cannot
refuse to attend Court because a boycott call is
given by the Bar Association. It is settled law that
it is unprofessional as well as unbecoming for a
lawyer who has accepted a brief to refuse to attend
Court even in pursuance of a call for strike or
boycott by the Bar Association or the Bar Council.
It is settled law that Courts are under an
obligation to hear and decide cases brought
before them and cannot adjourn matters merely
because lawyers are on strike. The law is that it
is the duty and obligation of Courts to go on with
matters or otherwise it would tantamount to
becoming a privy to the strike. It is also settled
l a w that if a resolution is passed by Bar
Associations expressing want of confidence in
judicial officers it would amount to scandalising
the Courts to undermine its authority and thereby
the Advocates will have committed contempt of
Court. Lawyers have known, at least since
Mahabir Singh's case [(1999) 1 SCC 37] that if
they participate in a boycott or a strike, their action
is ex-facie bad in view of the declaration of law by
this Court. A lawyer's duty is to boldly ignore a
call for strike or boycott of Court/s. Lawyers have
also known, at least since Roman Services' case
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SCC (L & S) 152] that the Advocates would be
answerable for the consequences suffered by their
clients if the non-appearance was solely on
grounds of a strike call.
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,
TV interviews, carrying out of Court premises
banners and/or placards, wearing black or white
or any colour armbands, peaceful protect
marches outside and away from Court premises,
going on dharnas or relay fasts etc. It is held
that lawyers holding vakalats on behalf of their
clients cannot refuse to attend Courts in
pursuance of 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 Advocates 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
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privy to strikes or calls for boycotts. It is held
that if a lawyer, holding a vakalat of a client,
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abstains from attending Court due to a strike call,
h e 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."
The same principle can be gathered in Mahabir Prasad Singh v.
Jacks Aviation (P) Ltd., (1999) 1 SCC 37; Ramon Services (P) Ltd. v.
Subhash Kapoor, (2001) 1 SCC 118; Krishnakant Tamrakar v. State of
M.P., (2018) 17 SCC 27; PLR Projects (P) Ltd. v. Mahanadi Coalfields
Ltd., (2019) 10 SCC 306; District Bar Association Dehradun v. Ishwar
Shandilya, 2021 SCC OnLine SC 1071.
In view of the aforesaid legal position, I deem it proper to decide the
matter upon perusal of the record.
In the connected matter W.P. No.9854/2018, this Court has passed the
following order :-
"The main ground of challenge to the suspension order
is that petitioner is a Gazetted Officer because pay scale
of Gazetted Officer was given to him. Hence, State
Government alone can place him under suspension. The
question cropped up before the Division Bench of this
Court in the case of Arun Prakash Yadav vs. State of
M.P. and others reported in 2013(3) MPLJ 508
whether upon grant of such pay scale equivalent to the
pay scale of Gazetted Officer will make the Officer as
Gazetted Officer. This Court rejected the said
contention. The relevant paragraphs reads as under :-
“14. The contention of the learned counsel for
petitioner that mere declaration of the post of
Inspector as Gazetted Class-II inducts the post of
Inspector into the Gazetted service constituted
under the Gazetted Rules, deserves outright
rejection for the reason that the Gazetted Rules
categorically prescribe three kinds of persons
forming the Gazetted cadre under Rule 4 which
does not contemplate a fourth kind (i.e. Inspector)
who claims his existence in the Gazetted service
merely by implication based upon declaration of
Inspector as gazetted. If such a course of action of
induction by implication is permitted, then the
sanctity of the Recruitment Rules shall stand
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eroded and arbitrariness will come into play
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bestowing unbridled power to the executive of
making recruitment by a mode foreign to the
recruitment rules by merely getting an executive
order passed in favour of a select few without
amending the Recruitment Rules. Moreover, it is
further to be seen that the post of Inspector of
Police continues till date to be the feeder post for
filling up the Gazetted cadre comprising of the
posts of various nomenclature falling broadly
under three categories of SP, Additional SP and
Dy.SP comprised under the Gazetted Rules.
Accordingly, this Court is of the considered view
that the first contention of the learned counsel for
petitioner of seeking induction of the post of
Inspector of Police by implication into the
Gazetted cadre constituted under the Gazetted
Rules deserves to be and is, therefore rejected.
15. Coming to the next contention of the learned
counsel for petitioner about the contents of the
Schedule to the Rules of 1966, it is noticed that the
posts falling under Class-III (Non-Ministerial)
Cadre in the Department of Police are provided by
the said Schedule to be governed by the Police
Regulations and not by the Rules of 1966. The
said remark made in the sub-heading of 'Home
Department (Police)' in the Schedule appended to
the Rules of 1966 is in fact against the petitioner.
Once this Court has held that induction into the
Gazetted Cadre of the posts of Inspector of Police
cannot take place by implication, the post of
Inspector of Police, which as per the Schedule-II
of Rules of 1966 belongs to Class-III (Non-
Ministerial) category, shall necessarily be governed
by the Police Regulations and, therefore the
contention of the petitioner that the competence of
an authority to initiate disciplinary proceedings
against an Inspector of Police ought to be tested
on the anvil of Rules of 1966, is unsustainable.â€
In the instant case also no statutory rule is filed to show that
rules are amended and petitioner is given Gazetted status
pursuant to said rules. Thus, I am unable to hold that
petitioner got status of Gazetted employee. In the light of
this Division Bench order, the order of Single Bench does
not help the petitioner. The petitioner has a remedy to
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statutory appeal under the rules. Hence, interference is
declined. The may avail the remedy of appeal.
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Petition is disposed of accordingly."
In light of the aforesaid order and in view of the availability of statutory
alternative remedy, this petition cannot be entertained.
Accordingly, the petition is disposed of by issuing same directions
which were issued in the connected matter.
(SUJOY PAUL)
JUDGE
Priya.P
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