Calcutta High Court (Appellete Side)
Ar vs Mousumi Fulmani on 12 September, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 29 12.9.2019
CO 2735 of 2019 Ct-25 Subhankar Ghosh ar Vs. Mousumi Fulmani Mr. Subhankar Ghosh (in person) ... For the Petitioner Mr. Partha Pratim Ray Ms. Shabana Hasim Mr. Anisur Rahman ... For the Office Bearers of Jangipur Bar Association By an order dated 22nd August, 2019 the instant revision was admitted for hearing. The petitioner was directed to serve notice of the instant proceeding under Section 24 of the Code of Civil Procedure.
Today, the petitioner has filed affidavit of service, on perusal of which I find that the notice was duly served upon the opposite party. However, the opposite party is found absent and not represented by any advocate.
Since notice was duly served upon the opposite party the application under Section 24 of the C.P.C is taken up for hearing and disposal.
The petitioner herein instituted Matrimonial Suit 38 of 2017 in the Court of the learned Additional District Judge, Jangipur, Murshidabad, against his wife, opposite party herein praying for a decree of nullity of marriage solemnised by and between them under the Special Marriage Act on 16th January, 2017.
In the instant proceeding it is contended by the petitioner that the petitioner was not able to conduct the proceeding in the said Matrimonial 2 Suit as he was obstructed, refrained and resisted from appearing before the learned trial Court due to a resolution of cease work adopted by the Jangipur Bar Association. It was alleged that the Jangipur Bar Association adopted the resolution of cease work of the court of the learned Additional District Judge, 1st Court, Jangipur since March 2019 and for last six months no judicial function is being performed in the Court of the learned Additional District Judge, 1st Court, Jangipur.
This Court duly considered the allegation made by the petitioner in his application under Section 24 of the C.P.C and issued notice upon the President, the Secretary and the office bearers of the Bar Association, Jangipur Sub- Divisional Court through the learned Registrar General, High Court, Calcutta directing them to appear before this Court to show cause as to why necessary orders will not be passed in the judicial side to bring an end of the stalemate continued in the court of the learned Additional District Judge, 1st Court, Jangipur.
The President, the Secretary and the office bearers of the Jangipur Bar Association are personally present in Court. They are represented by Mr. Partha Pratim Ray and Ms. Shabana Hasim, learned advocates.
Ms. Shabana Hasim, learned advocate has prayed for leave to file Vokalatnama on behalf of the office bearers of the Jangipur Bar Association.
Leave is granted.
Vokalatnama be accepted. Learned advocate 3 for the office bearers of the Jangipur Bar Association is at liberty to file Vokalatnama in the department.
It is submitted by Mr. Ray, learned advocate duly assisted by Ms. Hasim, learned advocate, that the Jangipur Bar Association has withdrawn cease work of the Court of the learned Additional District Judge, 1st Court, Jangipur by adopting a subsequent resolution dated 22nd August, 2019 and normal judicial work is being performed in the said Court.
In view of such circumstances, the petitioner should not have any inconvenience right now in conducting his suit pending before the learned Additional District Judge, 1st Court, Jangipur. However, the petitioner has filed a supplementary affidavit stating, inter alia, that he attended the Court of the learned Additional District Judge, 1st Court at Jangipur personally on 20th July, 2019 wearing a black coat. The members of local Bar Association resisted him, disallowed him to file "hazira" and also physically assaulted him. It is submitted by him that he is afraid of appearing before the learned trial Judge due to such threat perception and he now apprehends that he may be manhandled in future if he attends the learned trial Court to represent his suit.
This Court is not powerless to give adequate protection to the petitioner to see that administration of justice should not be affected by some illegal overt act or omission, not permissible by any person attached with the process of judicial system. Therefore, the Superintendent of Police, Murshidabad, Sub- Divisional Police Officer of Jangipur Sub-Division and the Officer-in-Charge of Jangipur P.S are 4 directed to give all protection enumerated with Witness Protection Scheme 2018 to the petitioner, if asked for.
At the same time, I record my observation that good sense will prevail upon the learned advocates, law clerks including all stake holders attached to the Jangipur Sub-Divisional Court so that not a single litigant should be retrained or resisted from taking the recourse of law for redressal of his/her grievances.
The instant revisional application is accordingly disposed of with the above observation.
Let a copy of this order be sent to the learned District Judge, Murshidabad and the learned Additional District Judge, 1st Court at Jangipur for information and compliance through the department of this Court.
However, with the disposal of CO 2735 of 2019 the issue does not come to an end.
Mr. Partha Pratim Ray, learned advocate for the office bearers of the Jangipur Bar Association clearly admits that the said Association adopted a resolution in the month of March 2019 to observe cease work of the Court of the learned Additional District Judge, 1st Court at Jangipur. From the date of adopting such resolution, no judicial work was performed till 22nd August, 2019 in the Court of the learned Additional District Judge, 1st Court at Jangipur. It is submitted by Mr. Ray that though the Hon'ble Supreme Court in different cases held in unequivocal terms that the advocates cannot go on strike, observe cease work or boycott en mass judicial proceeding of any court, different Bar 5 Associations, even the Bar Council of India and Bar Council of West Bengal do observe strike, cease work or boycott of Courts to protect the sanctity and independence of the judiciary.
In Ex-Capt. Harish Uppal Vs. Union of India and Anr. reported in (2003)2 SCC 45, the Hon'ble Supreme Court held that the lawyers have no right to go on strike or give a call for boycott, not even on a token strike.
In the case of Ramon Service Pvt. Ltd. Vs. Subhas Kapur reported in (2001)1 SCC 118 the Hon'ble Supreme Court had clearly stated that the lawyers' strike and suspension of the Court is illegal and it is right time that legal fraternity realises its duty to the society, which is foremost.
Section 4 of the Advocates Act 1961 read with Section 7 of the Advocates Act confers power to the Bar Council of India to lay standards of professional conduct and etiquette of the Advocates in general. The Bar Council of India and in the instant case the Bar Council of State of West Bengal should ensure that lawyers should not involve in strike, boycott, cease work of Courts. However, there are instances where both the Central and State Bar Council itself call for lawyers' strike for protection of lawyers' interest, though not touching upon the interest of the judiciary in the form of protection of independence of judiciary and administration of justice at large.
In Common Cause, a Registered Society Vs. Union of India & Ors. reported in AIR 2005 SC 4442 the Hon'ble Supreme Court held that if any Association of advocates call for a strike then the State Bar Council or the Bar Council of India must take action against those persons who 6 called for strike.
The fundamental duty of judiciary is to serve people, who are seeking justice for themselves and in order to do so, it is very important that every branch of it must coordinate or cooperate with each other. If a litigant is prevented from access to justice due to cease work called by a Bar Association or Bar Council, such act prima facie amounts to gross violation of fundamental rights under Article 21 of the Constitution of India.
Under such circumstances, this issue should be looked into with proper perspective to protect rule of law and also to ensure that no litigant should be prevented from access to justice due to such strike, cease work, boycott etc. In order to solve the issue before hand, I am of the view that all stakeholders should be heard at length before passing any final order on the subject.
Therefore, notice be issued to the learned Registrar General, High Court, Calcutta requesting him to offer the views of the High Court, Calcutta with special reference to the cease work observed by Jangipur Bar Association and the steps taken by this Court in administrative side to resolve such dispute.
Notice be also issued to the State through the learned Advocate General to offer the view of the State of West Bengal on the issue of observing cease work by different Bar Associations in State of West Bengal.
Notice be also issued to the Bar Council of West Bengal requesting them to offer their views on the subject in hand.
7Learned Registrar General, High Court, Calcutta is requested to send notice along with a copy of this order to the learned Advocate General and the President and Secretary, Bar Council of West Bengal by Special Messenger and to submit a service report within a fortnight.
The above named stakeholders are at liberty to file affidavits stating their views on the issue by 14th November, 2019.
Mr. Laxmi Gupta, learned Senior Advocate, is requested by the Court to assist the Court as a amicus curiae in the matter to which he has kindly consented.
Let a copy of this order be also sent to Mr. Gupta for his kind information through the learned Registrar General, High Court, Calcutta.
Personal appearance of the President, the Secretary and other office bearers of the Jangipur Bar Association is waived. However, they will appear before this Court on notice as and when required.
Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Bibek Chaudhuri, J.) 8