Kerala High Court
Vijayaraghavan vs Travancore Devaswom Board on 22 May, 2006
Equivalent citations: 2006(3)KLT1
Author: K.T. Sankaran
Bench: K.T. Sankaran
JUDGMENT R. Bhaskaran, J.
1. The petitioner in this Writ Petition is an Advocate practicing in the High Court. His grievance is that while discharging his duties as a Standing Counsel for the Travancore Devaswom Board and in the midst of a case, he was relieved of his duties on extraneous consideration. While making it clear that the petitioner does not want to continue in the panel of Advocates appearing for the Travancore Devaswom Board, he has filed this Writ Petition only to make sure that his removal from the panel and taking away the case from him was not on account of any want of professional integrity in him and such removal should not remain as a stigma on his reputation as a lawyer. Ext.P2 is the communication directing the petitioner to handover the file relating to Audit Report of Accounts for 1167 ME Sabarimala Festival pending before the High Court and Ext. P3 is the proceedings of the Travancore Devaswom Board informing the petitioner that he is relived of his duties as Standing Counsel of the Board with immediate effect. Petitioner has challenged Ext.P3 order and also sought for a declaration that Ext.P3 is punitive and amounts to imposition of punishment without affording an opportunity to show cause and is liable to be declared as bad in law.
2. In the course of the duties of the High Court under Section 32 of the Travancore-Cochin Hindu Religious Institutions Act, it came to the notice of this Court that there was a practice prevalent in the Travancore Devaswom Board of giving advances to the Administrative Officer for future expenses mainly in connection with the Sabarimala Festival. The advances were given of several lakhs of rupees and were entered in a register called "advance register". For the purpose of audit, the question arose whether the amounts received as per entries in the advance register were really spent and how much remained with the concerned officer. It was noted that the advance register itself was missing and it was difficult to verify the same. This Court had ordered a high-level enquiry by the Inspector General of Police and he has filed a report to this Court, Subsequently, when the audit for the year 1167 ME came up for consideration this Court made enquiries about the stopping of the advance system. Since it was found that by the time the enquiry and audit was over the officer concerned would retire from service and it was difficult to recoup the amounts from him, this Court suggested to stop the advance system which was not prevalent in any other Devaswoms in the State like Cochin Devaswom Board and Guruvayoor Devaswom. The Travancore Devaswom Board took a decision to stop the advance system and filed an affidavit before this Court that the advance system will be stopped. Later, it appears that there was a re-thinking on the part of the Devaswom Board. According to the petitioner, when this Court enquired about stopping that practice he had suggested alternate methods. It was not liked by the higher-ups in the Board. According to the petitioner, the stopping of the advance system was apprehended to adversely affect the unlimited opportunities for self aggrandisement of the some of the higher ups in the Board. It is for that reason that the case which was handled by the petitioner was taken away from him. The petitioner alleges that the order is tainted with mala fides and amounts to casting a stigma on the petitioner,
3. When the Writ Petition came up for admission, the learned Standing Counsel for the Travancore Devaswom Board took notice and submitted that he would file a statement controverting the allegations in the Writ Petition. In fact, he had got instructions in the matter and he submitted that the reasons for the removal of the petitioner would be disclosed. In the counter affidavit filed, certain allegations are levelled against the petitioner. It is stated that the tenure of the Standing Counsel is not stated in the order of appointment and no Writ Petition is maintainable against termination of such service. It is also stated that the respondent is not liable to state reasons for changing the advocate. Since the petitioner has pleaded no other reasons, the reasons are disclosed in the counter-affidavit. In the reply affidavit filed by the petitioner, each and every reason pointed out is effectively answered and it is shown that they were not the real reasons. At the time of arguments, the Standing Counsel for the respondents did not elaborate on the reasons for relieving the petitioner and only contended that no Writ Petition was maintainable. It is argued that since none of the petitioner's statutory right or other right is violated, it is unnecessary to consider the validity of the reasons put forward for relieving the petitioner of his duties as Standing Counsel.
4. In view of the pleadings in the counter-affidavit and in the reply affidavit, it may not be proper for this Court not to advert to the same while disposing of the case. The learned Counsel for the petitioner also relied on the decision of this Court in Prince George v. Government of Kerala 1992 (2) KLT 849. In that case, this Court had held that the termination of the services of the Public Prosecutors though the appointment stems from a contract has to satisfy the test of Article 14. In that case, Ext.P3 order was issued on the basis of R.17 which enabled the Government to terminate the appointment of any Government Officer at any time before the expiry of the term without assigning any reason. It was only in the counter-affidavit that it was disclosed that the petitioner was the 2nd accused in Crime No. 199 of 1992 before the Thrissur Town Police Station. As a Government Pleader was expected to keep up his integrity, reliability and reputation, his services was terminated. It was found that mere inclusion of the name in the F.I.R. by itself was insufficient to terminate the services of the District Government Pleader even without a show cause notice to him. Suffice it to note that the termination of the petitioner from the panel of Standing Counsel for the Travancore Devaswom Board, according to the respondents, was not simple termination for no reason but for valid reasons and in respect of which no notice or hearing was given to the petitioner to explain his position. In the light of the fact that the Standing Counsel for the respondents did not seriously argue about such complaints against the petitioner it can be concluded that for those reasons the petitioner could not have been relieved from the panel of Standing Counsel for the Travancore Devaswom Board. Before dealing with the allegations against the petitioner made for the first time in the counter affidavit it has to be made clear that it was not on "direction" by this Court; but it was a case where the counsel took notice and submitted that if the petitioner wanted to know the reasons the same could be given by filing a counter affidavit. That is clear from the order dated 27-1-2006 which reads as follows: "Adv. Sri. Anjal C. Vijayan, Standing Counsel for Travancore Devaswom Board takes notice on behalf of first respondent. Issue notice to the second respondent. Standing Counsel for the first respondent submits that he will file a statement within one week."
5. The first allegation against the petitioner is that there was undue delay in furnishing copies of further remarks of Audit to the Board officials. As rightly argued by Advocate Sri. Ramakumar it is the duty of the Board officials to collect the copy of the remarks from the counsel and the counsel is not expected to take the copy to the Board officials. The petitioner has produced Exts. P4 to P9 (a) to show that the laches were all on the part of the officials of the Board. In fact in Ext.P5 order this Court wanted the presence of the President and Commissioner of the Board before the Court as the counsel expressed his helplessness for not filing the replies in time. Therefore there is no merit in this contention of the Travancore Devaswom Board.
6. The second objection is with regard to the claim of fees for certain cases in July and September 2005. The hollowness of this charge can be understood when it is seen that as the basis of the order dated 25-1-2006 (Ext.P3) the correspondence of the Deputy Director of Audit dated 6-2-2006 is relied on. The only contention against the petitioner is that the cases though posted on the respective dates were not really considered by the Court. It is denied by the petitioner in the reply affidavit. It is also strange that instead of seeking clarification from the counsel the clarification is sought from the Audit. In fact we have ourselves disposed of another Writ Petition filed by the same petitioner claiming his Advocate fees and expenses for cases on behalf of the 1st respondent and the submission of the counsel for the Board that for certain period the payment would be made within two weeks and for the remaining period within six weeks after scrutiny was recorded and Writ Petition was disposed of. Therefore even if there was any claim which was not allowable the same could be rejected. According to the petitioner his claims were approved by the Audit Wing and the Law Department.
7. The third allegation is with regard to the filing of two applications as DBA. 148/2005 and DBA. 149/2005 for permission to conduct stalls in two Devaswoms of Kulathupuzha and Aryankavu when there was already permission granted in a joint application on DBA. 121/2005. According to the petitioner these two applications were filed as instructed by the Board officials and were withdrawn as they were found to be unnecessary. Whether the petitioner is entitled to claim the fees for the cases filed on instruction and later dismissed as not pressed is a matter to be decided on scrutiny. The applications were filed by the 1st respondent. If they were not necessary the counsel need not have been instructed to file it. Therefore this ground also is effectively replied by the petitioner.
8. The 4th complaint is that the petitioner acted against the interest of a Temple Advisory Committee in a Writ Petition filed before this Court and the Secretary of the committee had filed Ext.R1(h) complaint stating that the petitioner did not produce the relevant documents in time before this Court in that Writ Petition. It is also stated in Ext.R1(h) that the petitioner in that Writ Petition had promised to give a bribe of Rs.20,000/- to the petitioner in this Writ Petition. The petitioner has replied stating that this complaint is created after the filing of the Writ Petition to justify Ext.P3 and that the author of Ext.R1(h) is a close friend of the President of the Board. According to the petitioner, if the Board is to believe such averments in the letter and act on the basis of such letters without seeking explanation from the petitioner, then what will be the situation of the Board members where several allegations are made against them in the media and even complaints are pending before this Court on the judicial side apart from the vigilance enquiry ordered by the Lok Ayukth. If termination of the engagement as counsel was on the basis of such letters raising charges against the petitioner, then the petitioner was entitled to be given an opportunity to reply to such charges as otherwise there will be violation of principles of natural justice.
9. The last complaint is that there were mistakes in the figures in the reply filed in this Court in the case in connection with the mess conducted at Sabarimala and Pampa. This also is not a tenable reason as the Secretary herself has filed the affidavit admitting the mistake and this Court has already passed orders stating that the mistake was not very material. Therefore we are of opinion that the allegations against the petitioner are not at all substantiated.
10. The more important Question is whether this Writ Petition is maintainable at all for the reason that the petitioner is not appointed for any term and there is no . service rules which is violated and like any other litigant 1st respondent has also the liberty to change the counsel if the 1st respondent feels that the service of a particular counsel is not required. Though several decisions have been brought to our notice, no direct decision on the point is available. The 1st respondent, being a statutory authority constituted under the Travancore-Cochin Devaswom Act, is amenable to the writ jurisdiction of this Court. Any arbitrary decision by the 1st respondent is liable to be challenged under Article 226 of the Constitution of India. Any order which is in violation of the principles of natural justice is an order which is liable to be questioned being violative of Article 14 of the Constitution of India. Since the petitioner has made it clear that he does not want to continue in the panel and this Writ Petition is filed only to remove the stigma, it is unnecessary to consider this aspect at greater length. But at the same time, since various decisions of the Apex Court have been brought to our notice, it is only appropriate that those decisions are referred to in this judgment.
11. The learned Counsel for the petitioner has mainly relied on the decision in Shrilekha Vidyarthi v. State of U.P. , a case where all District Government Counsel in the State of U.P. were removed en bloc. Though the Allahabad High Court did not accept the plea with regard to violation of Article 14 of the Constitution of India, the Supreme Court found that it would be alien to the Constitutional Scheme to accept the argument of the exclusion of Article 14 in contractual matters. It was also found that non-application of mind to individual cases before issuing a general circular terminating all such appointments throughout the State of U.P. was itself eloquent on the face of the circular though issuance of the circular was not governed by any rule. In that case, it was further found that there was clear provision in the Legal Remembrancer's Manual laying down detailed procedure for appointment, termination and renewal of tenure and to take steps for a fresh appointment if the existing incumbent was not found suitable. Apart from the fact that no such rule is available in the present case, Shrilekha Vidyarthi's case is distinguished in subsequent decision of the Supreme Court in State of U.P. v. U.P. State Officers Association . That was also a case of Law Officers engaged by the State of U.P. They were Law Officers working in the High Court of Allahabad. Out of 64 Law Officers, 26 were removed by the State Government. This time, the High Court accepted the contentions of the Law Officers and quashed the orders of termination. The Supreme Court found that the period of contract of all the 26 officers had expired apart from the fact that the contract itself provided that their contract would be terminated without assigning any reason. It was therefore found that the reliance placed on Shrilekha Vidyarthi's case was misplaced. The Supreme Court therefore set aside the judgment of the High Court and declared that the termination of the appointment was valid and proper. But at the same time, the Supreme Court noted the relationship between the lawyer and client and the status of the advocate in paragraph 15 of the judgment which is worth reproducing in this judgment and it reads as follows:
15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer's discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.
According to the petitioner, he has been victimised since he stood upto the expectations of a lawyer as enunciated by the Supreme Court in this judgment.
12. The question as to how far the High Court can interfere with the non renewal of appointment of District Government Pleaders in U.P. State again came up before the Supreme Court in State of U.P. v. John Mal . It was held that the High Court was not justified in interfering with the orders. In the course of the discussion various judicial precedents and text books were referred to. In para 28 it was held as follows:
The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court.
In para 40 it is stated as follows:
The courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a Public Prosecutor or a District Counsel. The jurisdiction of the courts in a case of this nature would be to invoke the doctrine of "Wednesbury unreasonableness" as developed in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 (2) All ER 680.
Para 45 states, "However, malice in law can also be a ground for judicial review.
13. Justice Sethi in a concurring judgment in Ramon Services Pvt. Ltd. v. Subhash Kapoor 2001 (1) KLT 34 (SC) : (2001) 1 SCC 118 lamented the prevailing socio economic political system and stressed the need for urgent surgical treatment and held that" such a surgery is impossible to be performed unless the Bench and the Bar make concerted effort. The role of the Members of the Bar has thus assumed great importance in the post-independence era in the country". The question considered was how far the lawyers could strike work and whether it was a ground for setting aside ex. parte order. In R.D. Saxena v. Balram Prasad Sharma the Supreme Court held that the Advocate had no lien on the files of the client for the balance fees due from the client.
14. What the society expects from the legal profession is succinctly stated by the Apex Court in In Re: Sanjiv Datta (1995) 3 SCC 619 : 1995 (1) KLT (SC) (SN) 48 P.36 and it reads as follows:
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practice the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the courts the unpleasant duty. We say no more.
15. According to the petitioner he had suggested the alternate methods to "advance system" to avoid chances of corruption and it was for that reason that he was removed from the panel. Since the reasons for removal as stated in the counter affidavit are not at all correct in the light of the reply affidavit and there is no other reason suggested we cannot find fault with the petitioner if he entertained the feeling that he was removed from the panel for the reasons stated in para 3 of the Writ Petition. But we do not want to enter into a definite finding on this issue as we find that this Writ Petition is otherwise liable to be dismissed.
16. According to us, this Writ Petition must fail for two reasons. The petitioner himself has stated that he did not want to continue in the panel and no prayer is there for such relief. Since no adverse remarks are made in Ext. P3 order it is unnecessary to question Ext.P3 proceedings. The indirect result of quashing Ext.P3 will be to allow the petitioner to continue as Standing Counsel of the Board. It may not be open for this Court in the exercise of powers of judicial review to direct that the 1st respondent must continue to engage the petitioner as his appointment is not to any civil post and is not governed by any statutory rule which enables him to continue in service for a term. Even if any such term is given in the rule, in the nature of relationship between the client and the lawyer where utmost faith in each other is required no client can be asked to continue the appointment of the Advocate where allegations are made by each against the other. The post of Government Pleader cannot be treated on an equal par as that of the Standing Counsel for Travahcore Devaswom Board. We also do not think that removal from the panel will in any way amount to a stigma on the counsel and we make it clear that the apprehension is without any basis.
For the reasons stated above and subject to the observations made in this judgment, we dismiss the Writ Petition.