Calcutta High Court
Garden Reach Shipbuilders And ... vs Garden Reach Shipbuilders And ... on 25 June, 1990
Equivalent citations: AIR1990CAL442, 94CWN965, AIR 1990 CALCUTTA 442, (1990) 2 CAL HN 174
ORDER Desai, C.J.
1. The appeal is taken up for hearing by treating it as included in the day's cause list.
2. In a pending writ petition between the appellant-association and the respondents, an ad interim order was made on October 31, 1988 in the following terms :
"There will be an ad interim order directing the respondent Company to maintain status quo as on the date with regard to the salary ' and other benefits of the workmen until further orders".
3. On June 13, 1989 an interim order was made in the following terms :
** ** ** ** ** ** The interim order earlier passed will stand modified to this extent that such of the workmen, who are willing to enjoy benefits, if any, given pursuant to any bipartitie settlement to be arrived at, will not be bound by the same.
Let it be recorded that this order has been passed without prejudice to the rights and contentions of the parties in this writ petition as also in the other writ petition pending before this Court."
4. On December 19, 1989 the interim order passed in the aforesaid terms was clarified as follows :
"Having heard the learned Advocates appearing for the parties and considering the averments made in this application, I clarify myorderdated June 13,1989 to the effect that the provisions regarding holidays in the impugned bipartitie settlement shall be applicable to the Writ Petitioners also. The rest of the order earlier passed on June 13, 1989 shall stand."
5. Be it stated that the Court also directed that since the affidavits were complete, the writ petition should come up for hearing after the Christmas Vacation. We are informed that the writ petition has still not been heard.
6. The main grievance of the appellant-association in the present appeal is that although the order dated June 13, 1989 was clarified only on December 19, 1989, the first respondent (Employer) seeks to enforce the order, as clarified on and with effect from the date of the passing of the previous interim order. In other words, the complaint is that the clarification relating to the holidays made in the order dated December 19, 1989 is sought to be given effect to on and from June 13, 1989. As a consequence of the giving of effect as aforesaid, the first respondent is stated to have issued directions to deduct five days wages from the salary of those of the members of the Association who have not voluntarily chosen to enjoy the benefits given pursuant to the bipartite settlement.
7. The application for interim relief made on behalf of the appellant herein came up for hearing on April 3, 1990. On that date the following statement of the learned counsel for the first respondent was recorded by the Court :
"Dr. Banerjee, learned Counsel for the respondents, wants it to be recorded that pursuant to the observaton made by the Court no recovery has been effected or will be effected till the application is heard. This, however, is being done without prejudice to the rights and contentions in the appeal."
8. Now, so far as the clarification with regard to the provisions of the bipartite settlement regarding holidays being made applicable to the members of the appellant association, who have not chosen to accept the benefits conferred by the said settlement is concerned, there can be no grievance. In the first place, the direction is subject to the final result of the writ petition. In the next place, it has been expressly made subject to the rights and contentions of the parties in the pending writ petition. In the last place, the writ petition is ready for hearing and it should have been heard by this time. Parties ought to have mentioned the matter before the appropriate Bench for listing the case for hearing.
9. The other grievance with regard to the deduction of wages for five holidays, which intervened between June 13, 1989 and December 1989, appears to us to be justified. The rights of the parties, pending the adjudication of the rival claims and contentions, were governed by the interim order passed on June 13, 1989 till it was clarified by the order dated December 19, 1989. The clarification accordingly made cannot be read as applicable from June 13, 1989. It would become operative only on and with effect from December 19, 1989. No deduction of wages can, therefore, be made for the holidays which intervened between these two dates viz., June 13, 1989 and December 19, 1989. Any such action would be unwarranted and unauthorised. A party to the dispute, who regulated its conduct on the basis of the Court's order till it was clarified, has a legitimate claim to production for its action taken during the interval in accordance with the initial order.
10. Against the aforesaid background, we suggested to Dr. Banerjee that without prejudice to the rights and contentions of his clients in the pending writ petition, he may consider making a statement that no deduction of wages for the aforesaid intervening period would be made. Such a gesture on the part of the management, in our opinion, would not only promote goodwill but also generate a healthy atmosphere conducive to a better employer-employee relationship. Regrettably, however, he found himself unable to do so till be obtained instructions from his client. It surprises us that in a matter of this nature, involving a dispute as to the deduction of wages for a period of five days only, in respect of a category of workmen who were apparently covered by the Court's interim order till it was clarified, Counsel does not feel free to hold out an assurance as suggested by the Court. We do not find any fault with him, however, since Advocates appearing for Government and Public Sector Undertakings and local authorities have often expressed similar inability in view of the uninformed approach; of the bureaucratic machinery controlling the, State and its organs and agencies. It is high, time that those who engage legal practitioners to plead their case before the Court knew that the settled legal position is that Counsel (be he Barrister or Advocate) has the general power, actual though implied, to settle the suit of his client as part of his duty to protect the interests of the client.
11. The doctrine of implied authority of counsel to compromise in all matters connected with the action is recognised in English law.
11A. The following passage from the judgment of Lord Denning M. R. In Rondel v. Worsley, (1967) 1 QB 443 at p. 502 highlights the duty as well as the authority of the members of the English Bar in the context of cases which they are called upon to handle on behalf of their clients :
"As an advocate he is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts."...... "He must accept the brief and do all he honourably can on behalf of his client, I say "all he honourably can" because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouth piece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice" ......"He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline."
12. In the same strain are the luminous observations of Lord Reid in Rondel v. Worsley, (1969) 1 AC 191 :
"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But as an officer of the Court, concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what his client thinks are his personal interests."
13. The apparent authority that Counsel has in England to compromise in all matters connected with the action and its jurispruden-tial basis as a branch of the Law of Agency has been thus expressed by Lord Atkin in Sourendra Nath v. Tarubala Dasi :
"Two observations may be added. First, the implied authority of counsel is not an appendage of office, a dignity added by the Co'urts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his emloyment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client.
No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief."
14. In Sourendra Nath's case the Judicial Committee equated the Indian Advocate and his duties to his client in the conduct of the suit as in no wise different from those of his counterparts in the United Kingdom. The question in that case was with regard to an agreement to compromise a suit and the implied power of an Advocate to settle the suit on behalf of his client. The statement of the law by Lord Atkin in that case is instructive and may well be extracted :
"They are of opinion that Mr. Sircar, as an advocate of the High Court, had, when briefed on behalf of the defendant, in the court of the Subordinate Judge of Hoogly, the implied authority of his client to settle the suit. Their Lordships have already said that he must be treated as though briefed on the trial of the suit. Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India. It is a power deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
15. The advocate is to conduct the cause of his client to the utmost of his skill and understanding. He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument. to withdraw that, he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination. These powers in themselves almost amount to powers of compromise; one point is given up that another may prevail. But in addition to these duties, there is from time to time thrown upon the advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client's behalf to receive or pay something less than the full claim or the full possible liability. Often the decision must be made at once. If further evidence is called or the advocate has to address the Court the occasion for settlement will vanish. In such circumstances, if the advocate has no authority unless he consults his client, valuable opportunities are lost to the client."
16. In Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand, , the Apex Court examined a large number of cases and also the provisions of Order 3 Rule 4 of the Code of Civil Procedure and made the followng eloquent observations, if we may say so with great deference :
"A little reflection will unfold the compelling necessity of giving a comprehensive meaning to the expression 'act' and for the inclusion of all categories of legal practitioners as repositories of this ample agency, bound yet broadened by obligatory traditions, professional control and public confidence in the Bar as a massive social instrumentality of democracy. To act for the suitor involves myriad intricate actions often so legal that the client may not even under-
stand the implication, sometimes so sudden that time for taking instructions is absent. Representation in Court may be so demanding and.so transforms forensic obligation that a lawyer may have ethical difficulties in mechanically obeying all the directions of his principal. The legal skill that is hired by the client may, for its very effective exercise, need an area of autonomy and quickness of decisions that to restrict the agency to express authorisation is to ask for an unpredictable and endless enumeration of powers such as what to ask a witness and what not to, what submissions to make and what points to give up and so on. To circumscribe the power to act is to defeat the purpose of the engagement.
Those who know how Courts and counsel function will need no education on the jurisprudence of lawyer's position and powers. Of course, we hasten to enter a caveat. It is perfectly open to a party, like any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensitive matters, the choice being his, as the master. If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief. But absent speaking instructions to the contrary, the power to act takes in it wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client. This amplitude of the power to act springs from the built-in dynamism, challenge and flux of the very operation of legal representation as felicitously expressed, if we may say so with great respect, in the noble words of Lord (Atkin Sourendra Nath's case . We may supplement the grounds for giving this wider construction by the fact that the legal profession is a para-public institution which deserves the special confidence of and owes greater responsibility to the community at large than the ordinary run of agency.
17. While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or neligence, we must uphold the actual, though implied, authority of a pleader (which is a generic expression including all legal practitioners as indicated in Section 2(15), Civil P.C.) to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two overriding considerations : (i) He must act in good faith and for the benefit of his client; otherwise the power fails, (ii) It is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if thesis any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground. We need hardly emphasize that the Bar must sternly screen to extirpate the black-sheep among them, for Caesar's wife must be above suspicion, if the profession is to command the confidence of the community and the Court."
18. And then follow a few words of counsel and an observation on professional parity :
"Nevertheless, it is right to stress that counsel should not rush in with a razi where due care will make them fear to tread, that a junior should rarely consent on his own when there is senior in the brief, that a party may validly impugn an act of compromise by his pleader if he is available for consultation but is by-passed. The Sawyer must be above board, especially if he is to agree to an adverse verdict. As for classes of legal practitioners we are equally clear that the tidal swell of unification and equalisation has swept away all professional sub-castes. Anyway, that is the law. Such artificial segregations as persist are mere proof of partial survival after death and will wither away in good time. Anyway, that is our hope."
19. These weighty pronouncements and indeed the declaration of law by the Apex Court in Jamilabai's case leave no room for doubt as regards the implied authority of an Advocate (which term includes all legal practitioners as indicated in Section 2(15) of the Code of Civil Procedure) to compromise a case in which he is engaged even without specific consent of his client subject, of course, to the considerations and caution sounded in Jamilabai's case.
20. We are conscious of the fact that Order XXIII, Rule 3 of the Code of Civil Procedure, as amended, provides, inter alia, as follows :
''Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit."
21. In Gurpreet Singh v. Chatur Bhuj Goel, it was ruled that under Rule 3 as it now stands,when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agree-ment between them. It was further held as follows:
"To constitions an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing."
It is apparent that these observations apply to the first part of Order XXIII Rule 3 where-under if it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by a lawful agreement or compromise the Court has the duty to order such agree-ment or compromise to be recorded and to pass a decree in accordance therewith so far as it relates to the parties to the suit. Where, however, the Court is not called upon to record an agreement or compromise concerning the adjustment of a suit. wholly or in part, and to pass a decree in accordance therewith, for example, when pursuant to an agreement or compromise arrived at out of Court the plaintiff merely wants it to be recorded that he has abandoned his suit or appeal or part of his claim in the suit or appeal, the law does not require that such agreement or compromise should be in writing and signed by the parties before the fact of such abandonment can be judicially noticed. Besides, in a case where the defendant or respondent satisfies the plaintiff or appellant in respect of the whole or any part of the subject-matter of the suit or appeal, the law does not require that there should be an agreement in writing signed by the parties before the Court can record the satisfaction and pass a decree in accordance therewith. This is amply clear from the following observations in Gurpreet Singh's case :
"The word 'satisfies' denotes satisfaction of the claim of the plaintiff wholly or in part, and for this there need not be an agreement in writing signed by the parties. It is open to the defendant to prove such satisfaction by the production of a receipt or payment through bank or otherwise. The satisfaction of the claim could also be established by tendering of evidence. It is for the Court to decide the question upon taking evidence or by affidavits as to whether there has in fact been such satisfaction of the claim and pass a decree in accordance with O. XXIII, R. 3 of the Code."
22. Apart from the aforesaid distinction and delineation or demarcation of the spheres in which the provisions of Order XXIII, Rule 3 operate, the legal position is that the said provisions do not apply verbatim et litteratim to writ petitions. Secton 141 of the Code of Civil Procedure reads as follows :
"141. Miscellaneous proceedings. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation. In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."
It is apparent, therefore, that the implied authority of an Advocate (which term is used in a generic sense) to enter into an agreement Or compromise in a writ petition in which he is appearing, even without specific prior approval of his client, subject to the overriding considerations and conditions mentioned in Jamilabai's case is not in any manner affected by the enactment of Order XXIII, Rule 3, as amended, nor is such an agreement or compromise required to be in writing and signed by the parties before it can be reduced and acted upon by the Writ Court. It is open to the Writ Court of course, for its satisfaction to insist that the agreement or compromise, which the parties request it to record and act upon, should be in writing and signed by them.
23. In the present case, there was no question of recording a compromise. If a clarifying statement had been made as suggested by the Court, the appeal would have been withdrawn. And since the suggestion emanated from the Court and it was made during the course of hearing at a point of time when the Court's opinion arrived at after hearing both the sides had become known and the judgment was about to be delivered and the question pertained only to five days' wages being allowed to a certain category of workmen for establishing goodwill and harmony, the implied authority could well have been exercised even without taking the consent of client. Of course, the Counsel has a choice whether or not to exercise such auth-
ority and the Court cannot compel him to do so. It should not be a futile entertainment of hope, however, to expect after the law has been clarified as aforesaid that an Advocate not expressly injuncted by is cjient would not hesitate to exercise the implied authority, if a reasonable suggestion is made by the Court which, as a minister of justice equally with the Judge, his conscience finds acceptable in the best interests of his client. He will thereby be performing a public service also in that an avoidable litigation in the overflowing dockets of the Court would come to a final and expeditious end without consuming the Court's precious time in adjudicating the cause.
24. Coming back to the facts of the case, in light of the findings recorded by us here-inabove, the appellants are entitled to succeed. There will be an order restraining the first respondent and its agents and servants from making recovery of wages for five holidays intervening between June 13, 1989 and December 19, 1989 already paid to such of the employees who did not choose to enjoy the benefits granted pursuant to the bipartite settlement. If any workman of the said category has not been paid wages for those holidays, he is held entitled to and shall be paid the same along with his salary due for the month next after the delivery of a xerox copy of this judgment as per directions issued hereinbelow.
25. No separate order is required to be passed on the application for interim relief which too stands disposed of in light of the foregoing order. Interim orders, if any, stand vacated.
26. If an application for a duly authenticated xerox copy of the judgment is made to the Registrar, Appellate Side, by the learned Advocates on record for the parties or any of them, such copy shall be delivered to them/ him on the payment of requisite charges provided an application also simultaneously made form certified copy and an undertaking is given that delivery of the certified copy will be taken on deposit of requisites when availably The Court copy to be supplied as expeditiously as possible.
Mahitosh Majumdar, J.
27. I agree.
28. Appeal allowed.