Andhra HC (Pre-Telangana)
K. Ramkrishna Reddy vs Principal Secretary To Govt., ... on 21 April, 2005
Equivalent citations: AIR2005AP342, 2005(4)ALD210, AIR 2005 ANDHRA PRADESH 342
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Petitioner is a designated Senior Advocate. The Government of A.P., issued G.O. Ms. No. 128, Irrigation and Command Area Development, (IRR.X) Department, dated 27-7-2001, appointing the team of 7 Advocates, including the then Additional Advocate General, of Government of A.P., and the writ petitioner as its Counsel, to represent and put forward its case before the Supreme Court in I.A. No. 1 of 2001 in O.S. No. 1 of 1997, filed by the State of Karnataka. The fee payable to different Counsel, engaged through the said G.O., was stipulated by another order, being G.O. Ms. No. 198, dated 20-9-2001. Except that the quantum varied to different heads, viz., a) appearance, b) settling the pleadings, affidavits, applications etc., c) conferences, d) conferences outside Delhi, and e) expenses on account of visits to places outside Delhi. The case before the Supreme Court was ultimately closed on 3-9-2002.
2. The petitioner submitted 3 separate bills on 17-11-2001, 17-1-2002 and 30-12-2002. The fee was mostly payable on the basis of hours of conferences, appearance etc. There did not exist any dispute as to the payment of fee for appearances. The petitioner claimed for about 250 hours. The respondent allowed the claim and paid for about 116 hours. In terms of money, the petitioner claimed Rs. 30,25,000/-, and as against this, the respondents paid a sum of Rs. 15,51,000/-. As regards the balance, the correspondence ensued between the petitioner and the respondents. Alleging that the representations dated 26-2-2004 and 5-6-2004, submitted by him, as regards the settlement of fee, were not considered, he filed WP No. 12102 of 2004. An order was passed on 15-7-2004, in that writ petition, directing the respondents to dispose of the representations of the petitioner, within a period of six months. Enclosing a copy of the order of this Court, the petitioner submitted another representation on 19-8-2004. On a consideration of the same, the 1st respondent passed an order dated 20-10-2004, stating inter alia that the entire fee, has already been paid in terms of G.O. Ms. No. 198, dated 20-9-2001. The present writ petition is filed challenging the order dated 20-10-2004. A declaration is sought, to the effect that the action of the respondents in not paying the remaining fee, for the conferences, as against the three bills referred to above, is illegal, arbitrary, discriminatory and contrary to G.O. Ms. No. 198, dated 20-9-2001. A consequential direction is also sought to the respondents for immediate payment of the bills.
3. On behalf of the respondents, a counter-affidavit is filed. It is admitted that the petitioner was appointed as one of their Counsel, to represent the State, before the Supreme Court. They contend that the petitioner was made the payments for the hours of participation, in the conferences. It is alleged that some of the meetings were held by the Counsel with the Departmental Officers, for the purpose of settling of affidavits, counter-affidavits, and petitions, and that the same cannot be treated as conferences, in the context of payment of fees. It is also claimed that, whenever the petitioner attended the conferences, with the other senior Counsel and Additional Advocates General, the corresponding fee was paid. A factual dispute is raised, as to the exact number of hours of participation, in conferences, by the petitioner.
4. The petitioner made elaborate submissions, touching on facts and law; appearing as party-in-person. He submits that the respondents have treated some of the conferences, attended by him, as those for settlement of pleadings, and that he was accorded a differential treatment from other senior Counsel, in the matter of payment of fee. He contends that the respondents themselves were not clear, as to the definition or connotation of 'conference', and that they denied a substantial part of fee, to him, on the basis of misinterpretation.
5. Learned Advocate-General has raised an objection as to the very maintainability of the writ petition. He submits that there are serious disputed questions of fact, be it, as regards the number of hours of participation in the conferences, or the nature of participation of the petitioner, in the conferences, as the case may be. He contends that such disputed questions of fact cannot be resolved in a writ petition, and the petitioner has to work out his remedies by filing a civil suit. He further submits that pursuant to the directions issued by this Court in WP No. 12102 of 2004, the matter has been examined meticulously, and it was ultimately found that the petitioner was extended the payment, which he was entitled to.
6. The dispute in this writ petition relates to the payment of fee to the petitioner. As observed in the preceding paragraphs, the petitioner submitted three separate bills, dated 17-11-2001, 17-1-2002 and 30-12-2002, covering a sum of Rs. 30,25,000/-. As against this, the respondents paid a sum of Rs. 15,51,000/-.
7. Before undertaking any discussion, the settled and broad principles, in relation to such matters, need to be taken note of. If it is a simple case of a party engaging an Advocate, and if there exists any dispute, as to payment of fee, they have to work out the remedies in a properly constituted suit. Where, however, the engagement of an Advocate is by the State, that too, by issuing an Executive Order, the matter partakes a different character. Since exercise of administrative power comes in to play, such issues can be examined in exercise of jurisdiction under Article 226 of the Constitution of India, to the extent permissible in law. If the controversy does not relate to the nature or method of exercise of executive power, or if there do not exist any parameters laid down in the Executive Orders, for payment of fee, it would be difficult to decide the same in writ petitions. In New India Assurance Co. Ltd. v. A.K. Saxena, , the Supreme Court held that such disputed questions of fact cannot be decided in writ petitions. In that case, the High Court dealt with a situation, where an Advocate, engaged by the New India Assurance Company Limited, was required to return the files. While holding that the Advocate is under obligation to return the files, the High Court imposed a condition, that such return shall be only on payment of full fee by the Company. The Supreme Court disapproved such a direction.
8. Instances are not lacking, where the Supreme Court dealt with the matters, relating to payment of fee, to Advocates, who are engaged by the State, and where the dispute was not so serious, as to the terms. For instance, in Government of Tamil Nadu v. R. Thillaivillalan, , the Supreme Court directed payment of a sum of Rs. 1,00,000/-, to the respondent therein, in full and final settlement of his claim, towards fee. In Joginder Singh Wasu v. State of Punjab, , the Supreme Court fixed a time frame and laid down the guidelines, for determination of fee payable to an Ex. Advocate-General.
9. Complaining that his claim was not considered at all, the petitioner approached this Court by filing WP No. 12102 of 2004. This Court disposed of the same on 15-7-2004, directing the respondents to pass appropriate orders, within a period of six months. In pursuance of the directions issued in that writ petition, the 1st respondent passed an order dated 20-10-2004. After referring to the Government orders, under which the petitioner was appointed, and which prescribed the fee structure, the 1st respondent took the view, that nothing more is payable to the petitioner.
10. A perusal of the impugned order discloses that, much controversy is revolved around the interpretation to be placed on the expression "conference". The matter appears to have been examined, at various levels, in the Government. The 1st respondent stated in the impugned order, that a conference is a meeting, for discussion or exchange of view. He further elaborated it, by stating as under:
"The Counsel will hold conferences with the client and other legal Counsels for appraising him of the facts of the case for the purpose of presentation before the Court at the time of hearing. Therefore, the fees will be paid for such conference. The meetings held by the Counsels for the purpose of settlement of affidavits and counters, petitions, etc., with the departmental officers cannot be considered as conferences for the purpose of payment of fees. You are, therefore, eligible for an amount of Rs. 10,000/- per hour as "conference Fee" for the meetings held with the departmental officers and other Senior Counsels for the purpose of presentation of the case before the Hon'ble Supreme Court at the time of hearing".
11. To this extent, there does not appear to be any difference of opinion, as to the interpretation placed by the petitioner, on the one hand, and by the respondents, on the other hand, on the term "conference". However, this understanding of the term "conference", and the entitlement of the petitioner, does not appear to have been reflected in the implementation. This is evident from the observation, in Para 4 of the impugned order. The 1st respondent was not clear as to whether the "conference" or "meeting", as one, may choose to call it, attended to, by the petitioner, was treated as the one, for discussion or exchange of views, or for preparation and settlement of the pleadings, affidavits, and applications etc. In the impugned order, it was stated as under:
"The meeting with you with the departmental officers for the purpose of study/preparation of the case has been paid under the Head fees for settling, pleadings, affidavits, applications, etc. But, you are claiming fees under the Head conference for all the meetings held by you with the departmental officers in connection with the above case".
12. With a view to get closer to the controversy, this Court required the respondents to submit the statistics of attendance of the petitioner in various conferences and meetings. In the statements filed by the respondents, only some of the meetings, attended to, by the petitioner, were treated as conferences. Under a separate column, the hours, for which the fee was disallowed, were indicated. The hours so disallowed are: 2, 77 and 55, for Bill Nos. 1, 2 and 3, respectively.
13. From a reading of the G.O. Ms. No. 198, dated 20-9-2001, it is evident that the fee, payable for conferences, is to be calculated on hourly-basis; whereas the fee for settling the pleadings, affidavits and applications, is payable: per pleading, per affidavit, per application etc., as the case may be. The impugned order or the statements filed by the respondents, subsequently, do not indicate the break-up, as between the two. If fee was paid for settling the pleadings, the particulars thereof need to be furnished. It is rather difficult to reckon or reconcile the duration of a meeting, with the settling the pleadings. These two are separate categories, by themselves, and there exists a clear-cut distinction between them. There hardly exists any scope for taking the one, for the other.
14. It is true, as contended by the learned Advocate-General, that the disputed questions of fact cannot be adjudicated in writ petitions. However, the State can certainly be required to be more specific and objective in their view and decision, while dealing with the claim of the petitioner. Once such clarity is ensured; any disputes thereafter, cannot be within the realm of the writ jurisdiction. The parties have to work out the remedies in Civil Courts.
15. For the foregoing reasons:
(a) the impugned order dated 20-10-2004, passed by the 1st respondent is set aside.
(b) The 1st respondent shall pass appropriate orders on the claim of the petitioner, within a period of six weeks from today, clearly indicating:
(i) the amount of fee, paid for conferences, duly indicating the duration thereof;
(ii) the fee paid for settling the pleadings etc., furnishing the particulars thereof.
(c) If the exercise indicated above results in the entitlement of the petitioner to receive any additional amount, the same shall be paid to him. If the petitioner feels aggrieved by the outcome of such exercise, it shall be open to him, to work out his remedies in accordance with law.
16. The writ petition is accordingly allowed. There shall be no order as to costs.