Ashok Kuma R Ghurayya vs The State Of Madhya Pradesh
2021 Latest Caselaw 8962 MP

                                          1

                      The High Court of Madhya Pradesh
                         W.P. No.9854 of 2018
     (Ashok Kumar Ghurayya Vs. The State of Madhya Pradesh and others)

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.) vs. Union of India
reported in (2003) 2 SCC 45 opined that despite strike of the Advocates, the Courts
must 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 it
              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 law that if a resolution is
              passed by Bar Associations expressing want of
              confidence in judicial officers it would amount to
                            2

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 (supra) 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, 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 arm
bands, 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 not attend Courts in
pursuance to 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
                                          3

              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 Advocate 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 privy to strikes or calls for boycotts.
              It is held that if a lawyer, holding a Vakalat of a client,
              abstains from attending Court due to a strike call, he
              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.
     The ratio decidendi of this judgment is consistently followed by Supreme
Court.
     In view of aforesaid legal position, I deem it proper to decide the matter
upon perusal of the record.
                                          4

      The petitioner has called in question the legality, validity and propriety of
order dated 20.04.2018 Annexure P-8 whereby he is placed under suspension by
the commissioner, Revenue Division. It is mainly challenged on the ground that
as per judgment of this court in Primal Singh Prajapati Vs State of M.P. (W.P.
No.4764/2010 Annexure P-11) the commissioner is not competent to place him
under suspension.
      The stand of petitioner is that pay scale of petitioner is (Rs.6500-10500)
make same a Gazetted Officer and therefore the State Government alone can
place him under suspension.
      The respondents have filed sketchy reply and along with said reply filed a

representation of petitioner wherein he expressed his desire to withdraw the present matter.

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 eroded and arbitrariness will come into play 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."

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 statutory appeal under the rules. Hence, interference is declined. The may avail the remedy of appeal.

Petition is disposed of accordingly.

(SUJOY PAUL) JUDGE

AHD/PK

Digitally signed by MOHD AHMAD Date: 2021.12.22 11:25:22 +05'30'