Allahabad High Court
Mrs. Madhuri Saxena (Since Deceased) ... vs Sahkari Awas Evam Vitt Nigam Ltd Sarojni ... on 14 August, 2020
Equivalent citations: AIR 2020 (NOC) 894 (ALL.), AIRONLINE 2020 ALL 1894
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- MATTERS UNDER ARTICLE 227 No. - 237 of 2020 Petitioner :- Mrs. Madhuri Saxena (since deceased) Through L.R. Respondent :- Sahkari Awas Evam Vitt Nigam Ltd Sarojni Marg Lucknow Up Counsel for Petitioner :- Shrish Chandra Hon'ble Ajay Bhanot,J.
1. This petition has been filed with the following prayer:
"A. To issue an appropriate order or direction to the learned District Judge, Ghaziabad (Prescribed Authority), to forthwith decide and conclude the proceedings of Arbitration Case No.903 of 2017 (Sahkari Awas Nirman Evam Vitt Nigam Ltd. Vs. Paresh Saxena) as expeditiously as possible and within the time stipulated by this Hon'ble Court without granting any unnecessary adjournments.
B. To issue an appropriate order or direction to the learned District Judge, Ghaziabad to forthwith decide the execution application in furtherance of the arbitral award filed in Execution Case No.59 of 2017 (Paresh Saxena Vs. Sahkari Awas Nirman Evam Vitt Nigam Ltd.) as expeditiously as possible and within the time stipulated by this Hon'ble Court without granting any unnecessary adjournments."
2. Proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 taken out by the petitioner against the arbitral award dated 29.05.2017, rendered by the learned sole Arbitrator, came to be registered as Arbitration Case No.903 of 2017 (Sahkari Awas Nirman Evam Vitt Nigam Ltd. Vs. Paresh Saxena) before the learned District Judge, Ghaziabad.
3. After institution of the proceedings, the matter was first placed before the learned Presiding Officer on 24.08.2017 but no one was present and the case was posted for 04.09.2017. On 04.09.2017 no effective hearing could happen because the counsels abstained from work in pursuance of a strike call. On 12.09.2017, the counsels again abstained from work on account of strike call and the learned Presiding Officer did not proceed with the case. The case was thereafter posted before the learned Presiding Officer on 18.09.2017. Notices were issued to the petitioner on 18.09.2017. The order-sheet of the proceedings on 21.12.2017, 19.01.2018 and 21.03.2018, records that notices had not been served upon the petitioner. The order-sheet of 30.04.2018 and 29.05.2018 reveals that the petitioner had not been served with the notice. Consequently the respondent-Sahkari Awas Nirman Evam Vitt Nigam Ltd. was required to take fresh steps for service. The petitioner subsequently entered appearance, and tendered its objections to the application instituting the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 on 23.08.2018.
4. No hearing could take place on 23.08.2018 since the lawyers were abstaining from work on account of strike calls. The matter was again posted on 31.08.2018 and 07.09.2018 on which dates counsels were present. But the matter could not be taken up due to pre-occupation of the learned Presiding Officer. On 27.09.2018, again the counsels abstained from work due to strike call.
5. On 12.11.2018, 14.12.2018, 10.01.2019 and 20.12.2019, the learned Presiding Officer could not hold the court due to various reasons like being on training or on leave.
6. A perusal of the order-sheet on subsequent dates reveals these facts. The counsel for the respondent-Sahkari Awas Nirman Evam Vitt Nigam Ltd. was present on 01.02.2019, however, the petitioner was not present. On 04.04.2019 the respondent's pairokar was present, however, the petitioner was not present. On 30.08.2019, the respondent-Sahkari Avas Evam Vitt Nigam Ltd. was not present, however, petitioner's pairokar was present to prosecute the case.
7. An application registered as application 16-C submitted by the counsel for the respondent (Sahkari Avas Evam Vitt Nigam Ltd.), before the learned Presiding Officer for summoning of the records of the arbitration proceedings, was served upon the petitioner before the court below on 28.11.2018. Application registered as paper no.17-C was submitted by the petitioner in the court below on 21.02.2019, while the copies of the same were supplied to the learned counsel for the Sahkari Awas Nirman Evam Vitt Nigam Limited on 12.03.2019. Due to pre-occupation of the learned Presiding Officer in other matters, the aforesaid applications could not be heard on various dates including 03.05.2019 and 01.11.2019.
8. No one was present on 04.09.2017, 12.09.2017, 30.05.2019 and 06.02.2020, as lawyers were on strike. The court proceedings were completely stalled by the striking lawyers on the aforesaid dates. The matter thus remains pending before the learned court below.
9. The constitutional courts are cognizant of the problem of delays in our judicial system. They have consistently attempted to purge the legal system of this menace. Various judgments have identified some of the causes of delays, & appropriate judicial directions have been issued to address the problem.
10. The following question was posed for determination before the Hon'ble Supreme Court in M/s Shiv Cotex Versus Tirgum Auto Plast P. Ltd. and others, reported at 2011 (89) ALR 232 :
"14.....Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?"
11. Thereafter, the Hon'ble Supreme Court while emphasizing the imperative of expeditious disposal of suits to preserve the faith in the judicial system held thus:
"15...It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit."
16....No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system."
17....."A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit -- whether the plaintiff or the defendant -- must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril."
12. Interminable delays caused by unnecessary adjournments sought for and granted to parties in a routine manner, and the collective responsibility of all the stake holders in the judicial system arose for determination before the Hon'ble Supreme Court in Noor Mohammed Vs. Jethanand and another, reported at (2013) 5 SCC 202.
13. Dispensing justice is the fundamental raison d'etre of the judicial system. Timely delivery of justice is indispensable to retaining the faith of the common man in the justice dispensation system.
14. Reiterating the importance of timely delivery of justice, and after setting its face against indifference of the judicial system to the plight of the litigants, the Hon'ble Supreme Court in Noor Mohammed (supra) defined the problem and issued directions for its resolution :
"27. The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell "Creeping snails have the weakest force". Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis[16] had put thus: -
"I consider it a lawyer's task to bring calm and confidence to the distressed client. Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client's inner resources to withstand the pressure."
A few lines from illustrious Frankfurter is fruitful to recapitulate:
"I think a person who throughout his life is nothing but a practicing lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand and the satisfaction on the other, to be a lawyer in the true sense."
28. In a democratic set up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.
33. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality. Long back, Francis Bacon, in his aphoristic style, had said, "Hope is good breakfast, but it is bad supper". We say no more on this score."
15. In Gayathri Vs. M.Girish, reported at (2016) 14 SCC 142, the Hon'ble Supreme Court exhorted the trial courts to address themselves to the malady of long delays in our judicial system:
"9. In the case at hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The Defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the Defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the Defendant-Petitioner shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the Plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law.
12. In the case at hand, it can indubitably be stated that the Defendant-Petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts."
16. This Court in Siddhartha Kumar and others etc. Vs. Upper Civil Judge, Senior Division, Ghazipur and others, reported at AIR 1998 All 265 made a searching enquiry into the causes of delay in the disposal of matters pending in the trial courts. Thereafter, comprehensive directions were issued in this regard. Some of the directions were to be implemented by this court on the administrative side.
17. The calling of law envisages highest standards of professionalism and ethical conduct on part of lawyers, while assisting the process of law. In the same breath law has set its face firmly against the lawyers abstaining from work in pursuance of strike calls. Good and high authorities in point have entrenched these propositions in our legal blood stream. Speaking to the obligations of the legal fraternity in-general, and the imperative of maintaining highest standards of professional conduct and morality among the lawyers in particular, the Hon'ble Supreme Court in Indian Council of Legal Aid and Advice Vs Bar Council of India reported at (1995) 1 SCC 732 stated:
"It is generally believed that members of the legal profession have certain social obligations, e.g., to render 'pro bono publico' service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the code of conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."
18. Adherence to high standards of ethical and noble conduct in the personal and private lives of lawyers as members of the legal fraternity was reiterated by the Hon'ble Supreme Court in Sanjeev Datta, In re, reported 1995 (3) SCC 619:
"20. 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 civilized 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."
19. In Mahabir Prasad Singh Vs Jacks Aviation (P) Ltd. reported at 1998 (1) SCC 201 the Hon'ble Supreme Court dwelt on the obligations of courts when faced with strike calls by an Association of Advocates, and required the courts to proceed with the judicial business and not yield to strike calls or any pressure tactics:
"If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating."
20. Mahabir Prasad Singh (supra) was also followed by Hon'ble Supreme Court in Ramson Services (P) Ltd. Vs Subhash Kapoor reported at 2001 (1) SCC 118, wherein the Hon'ble Supreme Court penalised the erring advocates by observing:
"15. Therefore, we permit the appellant to realise half of the said amount of Rs 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.
16. In all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate.
17. We may also observe that it is open to the court as an alternative course to permit the party (while setting aside the ex parte order or decree earlier passed in his favour) to realise the cost fixed by the court for that purpose, from the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike."
21. The Hon'ble Delhi High Court in B.L. Wadehra (Dr) Vs State (NCT of Delhi) reported at AIR 2000 Del 266 held that a lawyers strike would infringe the fundamental rights of litigants for speedy trial, and that such strikes interfere with the administration of justice. The observations of the Hon'ble Delhi High Court which were cited with approval by the Hon'ble Supreme Court in Ex-Capt. Harish Uppal Vs Union of India and another reported at (2003) 2 SCC 45 are reproduced herein to support this narrative:
"30. In the light of the abovementioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23 : AIR 1979 SC 1360] is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. Strike by lawyers will infringe the abovementioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, we are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant's fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour. According to the Bar Council of India Rules, 1975 'an advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an advocate'. It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.
31. Every court has a solemn duty to proceed with the judicial business during court hours and the court is not obliged to adjourn a case because of a strike call. The court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in Common Cause case [(1995) 1 Scale 6] the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.
32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in court. If anyone does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of court and he is liable to be proceeded against on all these counts."
22. The Hon'ble Supreme Court in Ex-Capt. Harish Uppal (supra) noticed the consequences of strikes/boycott calls. The Constitution Bench of Hon'ble Supreme Court found that such actions hold the judicial system to ransom and threaten the administration of justice :
"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 them 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 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 case [(1999) 1 SCC 37] 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 Ramon Services case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] 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.
21. It must also be remembered that an advocate is an officer of the court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the court. They owe a duty to their clients. Strikes interfere with administration of justice. They cannot thus disrupt court proceedings and put interest of their clients in jeopardy. In the words of Mr H.M. Seervai, a distinguished jurist:
"Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyse the working of the courts. ''In my submission', he said that ''it is high time that the Supreme Court and the High Courts make it clear beyond doubt that they will not tolerate any interference from any body or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Courts maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill will."
22. It was expected that having known the well-settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self-regulation. The abovementioned interim order was passed in the hope that with self-restraint and self-regulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified. Unfortunately strikes and boycott calls are becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming conduct are becoming a frequent spectacle. On the slightest pretence strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined."
23. Further the Constitution Bench in Ex-Capt. Harish Uppal (supra) relied on the law laid down in Supreme Court Bar Association Vs Union of India reported at 1998 (4) SCC 409 that every advocate should boldly ignore call for strike/boycott:
"25. In the case of Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] it has been held that professional misconduct may also amount to contempt of court (para 21). It has further been held as follows: (SCC pp. 444-46, paras 79-80) "79. An advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor-General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for ''professional misconduct', on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution ''all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court'. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act ''in aid of the Supreme Court'. It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar Council, even after receiving ''reference' from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.
80. In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practise as an advocate in other courts or tribunals."
Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and even Bar Associations can never consider or take seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott. Such requisitions should be consigned to the place where they belong viz. the waste-paper basket. In case any Association calls for a strike or a call for boycott the State Bar Council concerned and on their failure the Bar Council of India must immediately take disciplinary action against the advocates who give a call for strike and if the Committee members permit calling of a meeting for such purpose, against the Committee members. Further, it is the duty of every advocate to boldly ignore a call for strike or boycott."
24. The Hon'ble Supreme Court in Ex-Capt. Harish Uppal (supra) unequivocally asserted that courts are not helpless in this matter:
"26. It must also be noted that courts are not powerless or helpless. Section 38 of the Advocates Act provides that even in disciplinary matters the final appellate authority is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152] every court now should and must mulct advocates who hold vakalatsbut still refrain from attending courts in pursuance of a strike call with costs. Such costs would be in addition to the damages which the advocate may have to pay for the loss suffered by his client by reason of his non-appearance."
25. After declining to accept the reasons given to justify a strike or call for boycott, the Hon'ble Supreme Court in Ex-Capt. Harish Uppal (supra) held that lawyers do not have the right to go on strike :
"32. Now let us consider whether any of the reasons set out in the affidavit of the Bar Council of India justify a strike or call for boycott. The reasons given are:
(1) Local issues.--A dispute between a lawyer/lawyers and police or other authorities can never be a reason for going on even a token strike. It can never justify giving a call for boycott. In such cases an adequate legal remedy is available and it must be resorted to. The other reasons given under the item "local issues" and even Items (IV) and (V) are all matters which are exclusive within the domain of courts and/or legislatures. Of course the Bar may be concerned about such things but there can be no justification to paralyse the administration of justice. In such cases representations can and should be made. It will be for the appropriate authority to consider those representations. We are sure that a representation by the Bar will always be seriously considered. However, the ultimate decision in such matters has to be that of the authority concerned. Beyond making representations no illegal method can be adopted. At the most, provided it is permissible or feasible to do so, recourse can be had by way of legal remedy. So far as problems concerning courts are concerned, we see no harm in setting up Grievance Redressal Committees as suggested. However, it must be clear that the purpose of such Committees would only be to set up a forum where grievance can be ventilated. It must be clearly understood that recommendations or suggestions of such Committees can never be binding. The deliberations and/or suggestions and/or recommendations of such Committees will necessarily have to be placed before the appropriate authority viz. the Chief Justice or the District Judge concerned. The final decision can only be of the Chief Justice concerned or the District Judge concerned. Such final decision, whatever it be, would then have to be accepted by all and no question then arises of any further agitation. Lawyers must also accept the fact that one cannot have everything to be the way that one wants it to be. Realities of life are such that, in certain situations, after one has made all legal efforts to cure what one perceives as an ill, one has to accept the situation. So far as legislation, national and regional issues are concerned, the Bar always has recourse to legal remedies. Either the demand of the Bar on such issues is legally valid or it is not. If it is legally valid, of all the persons in society, the Bar is the most competent and capable of getting it enforced in a court of law. If the demand is not legally valid and cannot be enforced in a court of law or is not upheld by a court of law, then such a demand cannot be pursued any further.
33. The only exception to the general rule set out above appears to be Item (III). We accept that in such cases a strong protest must be lodged. We remain of the view that strikes are illegal and that courts must now take a very serious view of strikes and calls for boycott. However, as stated above, lawyers are part and parcel of the system of administration of justice. A protest on an issue involving dignity, integrity and independence of the Bar and the judiciary, provided it does not exceed one day, may be overlooked by courts, who may turn a blind eye for that one day."
26. Finally the Hon'ble Supreme Court in Ex-Capt. Harish Uppal (supra) laid down nature of right to practise law and the powers of courts by holding thus:
"34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practise in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.
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 armbands, peaceful protest 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 refuse to attend courts in pursuance of 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 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 advocates 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 in addition to damages which he might have to pay his client for loss suffered by him."
27. The issue of lawyers going on strike repeatedly and thereby bringing the wheels of the administration of justice to a standstill, once again evoked the concern of the Hon'ble Supreme Court in Krishnakant Tamrakar Vs State of Madhya Pradesh reported at AIR 2018 SC 3635. The Hon'ble Supreme Court therein after adverting to other causes of delays in the judicial system, also called for structural changes to meet the challenge:
"50. Since the strikes are in violation of law laid down by this Court, the same amount to contempt and at least the office-bearers of the associations who give call for the strikes cannot disown their liability for contempt. Every resolution to go on strike and abstain from work is per se contempt. Even if proceedings are not initiated individually against such contemnors by the court concerned or by the Bar Council concerned for the misconduct, it is necessary to provide for some mechanism to enforce the law laid down by this Court, pending a legislation to remedy the situation.
51. Accordingly, we consider it necessary, with a view to enforce fundamental right of speedy access to justice under Articles 14 and 21 and law laid by this Court, to direct the Ministry of Law and Justice to present at least a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in its contempt or inherent jurisdiction of this Court. The Court may, having regard to the fact situation, hold that the office-bearers of the Bar Association/Bar Council who passed the resolution for strike or abstaining from work, are liable to be restrained from appearing before any court for a specified period or until such time as they purge themselves of contempt to the satisfaction of the Chief Justice of the High Court concerned based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office-bearers of the Bar Association forthwith until the Chief Justice of the High Court concerned so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. The matter may also be considered by this Court on receipt of a report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants.
52. We may now sum up our conclusions:
(i) In the light of 124th and 272nd Reports of the Law Commission of India, judgment of this Court in Gujarat Urja [Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2016) 9 SCC 103] , the Minutes of the Arrears Committee of Supreme Court dated 8-4-2017 and all other relevant considerations, the authorities concerned may examine whether there is need for any changes in the judicial structure by creating appropriate fora to decongest the constitutional courts so as to realistically achieve the constitutional goal of speedy justice.
(ii) In view of 14th Report of the Law Commission of India, judgment of this Court inAll India Judges Assn. v. Union of India [All India Judges Assn. v. Union of India, (1992) 1 SCC 119, para 12 : 1992 SCC (L&S) 9] , the Minutes of the Arrears Committee of this Court dated 8-4-2017, and the experience on the subject, pending consideration of issue of All-India Judicial Service, there is need to consider the proposal for Central Selection Mechanism for filling up vacancies in courts other than the constitutional courts and also to consider as to how to supplement inadequacies in the present system of appointment of Judges to the constitutional courts at all levels.
(iii) There is need to consider in the light of observations hereinabove and all other relevant considerations whether there should be a body of full-time experts without affecting independence of judiciary, to assist in identifying, scrutinising and evaluating candidates at pre-appointment stage and to evaluate performance post appointment. The Government may also consider what changes are required in the process of evaluation of candidates at its level so that no wrong candidate is appointed. What steps are required for ensuring righteous conduct of Judges at later stage is also an issue for consideration.
(iv) Pending legislative measures to check the malady of frequent uncalled for strikes obstructing access to justice, the Ministry of Law and Justice may compile information and present a quarterly report on strikes/abstaining from work, loss caused and action proposed. The matter can thereafter be considered in the contempt or inherent jurisdiction of this Court. The Court may direct having regard to a fact situation, that the office-bearers of the Bar Association/Bar Council who passed the resolution for strikes or abstaining from work or took other steps in that direction are liable to be restrained from appearing before any court for a specified period or till they purge themselves of contempt to the satisfaction of the Chief Justice of the High Court concerned based on an appropriate undertaking/conditions. They may also be liable to be removed from the position of office-bearers of the Bar Association forthwith until the Chief Justice of the High Court concerned so permits on an appropriate undertaking being filed by them. This may be in addition to any other action that may be taken for the said illegal acts of obstructing access to justice. The matter may also be considered by this Court on receipt of a report from the High Courts in this regard. This does not debar report/petition from any other source even before the end of a quarter, if situation so warrants.
53. Accordingly, we dispose of this appeal in above terms. We direct the Union of India to file an affidavit in the light of the above observations within three months. First report in terms of para 52.4 may be filed by 30-6-2018. The matter may be listed for consideration of the above affidavit on Wednesday, 4-7-2018 before the appropriate Bench."
28. The courts cannot be held to ransom by the conduct of the parties or the strikes of the counsels. Striking lawyers are accountable to law. The process of law has to run its course unimpeded by any such obstructions. The courts have to pass appropriate orders in accordance with law when the parties or counsels are not cooperating with the judicial process. Court proceedings cannot be brought to a halt by striking lawyers or lethargic litigants. No party or matter can have an unlimited draught on the time of the court.
29. The foremost goal set out in the Preamble of the Constitution, is to secure to all citizens: Justice, social, economic and political.
Justice to be meaningful has to be delivered in a relevant time frame. Delay invariably defeats justice. Indefinite delays are the bane of our judicial system. Interminable legal proceedings reflect the apathy of an impersonal system to the plight of helpless litigants. So long as timely justice is denied, so long the constitutional promise of justice will not be redeemed, and the constitutional mandate of the judicial system will not be implemented.
30. The constitutional courts are seized with, and the legislatures have taken cognizance of the malaise of delays in the judicial process. Delays in the judicial process have earned the displeasure of constitutional courts, and have evoked the concern of the legislatures. Law will not countenance delays in the judicial process. This is evident from the imperative directions issued by the constitutional courts to purge the judicial system of delays. This will also be apparent from the timelines set by the legislature to cure the mischief of delays in the judicial process. The judicial system will have to evolve an ethos to be alert to, and endeavour to respect timelines created by the legislature.
31. The impact of globalisation was acutely felt in the field of law. India's unwavering commitment to its international obligations contained in the UNCITRAL Model on International Commercial Arbitration, was manifested in the promulgation of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'The Act of 1996'). India's international obligations to UNCITRAL, are implemented by the most fundamental instruments of national sovereignty, namely, the legislatures and the courts. The Arbitration and Conciliation Act, 1996 has to be interpreted and implemented by the courts in a manner which is in accord with the intendment of the Indian Parliament, and consistent with the international obligations of India to the UNCITRAL Model.
32. The UNCITRAL Model and the Arbitration and Conciliation Act, 1996, reflect an evolving trend in international jurisprudence. Together both instruments reflect a global consensus of judicial values, and a unification of the system of international jurisprudence in the field of arbitration. The courts in India implement the Arbitration and Conciliation Act, 1996, as instruments of national sovereignty, and also members of the international comity of courts.
33. Meeting the international obligations of India to the UNCITRAL Model was the avowed legislative intent of the Arbitration and Conciliation Act, 1996. Expeditious disposal of proceedings under the Arbitration and Conciliation Act, 1996 is the congruent objective of the twin instruments of international law and the domestic law.
34. Section 34(5) and (6) of the Act, 1996 are relevant to the instant controversy and the provisions are extracted hereunder:
"34. Application for setting aside arbitral award.--(1)-(4) * * * (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party."
35. Delay in disposal of the proceedings under the Act of 1996, topped the concerns and lay at the heart of 246th Law Commission Report, when it introduced the said provisions. The relevant extracts of the 246th Law Commissioner Report are set out hereunder:
"3. The Arbitration and Conciliation Act, 1996 (hereinafter "the Act") is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980. The Act has now been in force for almost two decades, and in this period of time, although arbitration has fast emerged as a frequently chosen alternative to litigation, it has come to be afflicted with various problems including those of high costs and delays, making it no better than either the earlier regime which it was intended to replace; or to litigation, to which it intends to provide an alternative. Delays are inherent in the arbitration process, and costs of arbitration can be tremendous. Even though courts play a pivotal role in giving finality to certain issues which arise before, after and even during an arbitration, there exists a serious threat of arbitration related litigation getting caught up in the huge list of pending cases before the courts. After the award, a challenge under section 34 makes the award inexecutable and such petitions remain pending for several years. The object of quick alternative disputes resolution frequently stands frustrated.
4. There is, therefore, an urgent need to revise certain provisions of the Act to deal with these problems that frequently arise in the arbitral process. The purpose of this Chapter is to lay down the foundation for the changes suggested in the report of the Commission. The suggested amendments address a variety of issues that plague the present regime of arbitration in India and, therefore, before setting out the amendments, it would be useful to identify the problems that the suggested amendments are intended to remedy and the context in which the said problems arise and hence the context in which their solutions must be seen.
* * *
25. Similarly, the Commission has found that challenges to arbitration awards under sections 34 and 48are similarly kept pending for many years. In this context, the Commission proposes the addition of sections 34(5) and 48(4) which would require that an application under those sections shall be disposed of expeditiously and in any event within a period of one year from the date of service of notice. In the case of applications under section 48 of the Act, the Commission has further provided a time limit under section 48(3), which mirrors the time limits set out in section 34(3), and is aimed at ensuring that parties take their remedies under this section seriously and approach a judicial forum expeditiously, and not by way of an afterthought ............"
36. The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in State of Bihar and others Vs. Bihar Rajya Bhumi Vikas Bank Samiti, reported at (2018) 9 SCC 472. The Hon'ble Supreme Court held Section 34(5) and (6) of the Act, 1996 to be directory in nature on the foot of the following reasons:
"22. However, according to Shri Tripathi, an application filed under Section 34 is a condition precedent, and if no prior notice is issued to the other party, without being accompanied by an affidavit by the applicant endorsing compliance with the said requirement, such application, being a non-starter, would have to be dismissed at the end of the 120 days' period mentioned in Section 34(3). Apart from what has been stated by us hereinabove, even otherwise, on a plain reading of Section 34, this does not follow. Section 34(1) reads as under:
"34. Application for setting aside arbitral award.--(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3)." What is conspicuous by its absence is any reference to sub-section (5).
The only requirement in Section 34(1) is that an application for setting aside an award be in accordance with sub-sections (2) and (3). This, again, is an important pointer to the fact that even legislatively, sub- section (5) is not a condition precedent, but a procedural provision which seeks to reduce the delay in deciding applications under Section 34. One other interesting thing needs to the noted - the same Amendment Act brought in a new Section 29A. This provision states as follows:
"29A. Time limit for arbitral award.-- (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Explanation.-- For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub- section, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay."
23. It will be seen from this provision that, unlike Section 34(5) and (6), if an Award is made beyond the stipulated or extended period contained in the Section, the consequence of the mandate of the Arbitrator being terminated is expressly provided. This provision is in stark contrast to Section 34(5)and (6) where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.
24. Shri Tripathi then argued that Section 34(5) is independent of Section 34(6) and is a mandatory requirement of law by itself. There are two answers to this. The first is that sub-section (6) refers to the date on which the notice referred to in sub-section (5) is served upon the other party. This is for the reason that an anterior date to that of filing the application is to be the starting point of the period of one year referred to in Section 34(6). The express language of Section 34(6), therefore, militates against this submission of Shri Tripathi. Secondly, even if sub- section (5) be construed to be a provision independent of sub-section (6), the same consequence in law is the result - namely, that there is no consequence provided if such prior notice is not issued. This submission must therefore fail.
25. We come now to some of the High Court judgments. The High Courts of Patna,2 Kerala,3 Himachal Pradesh,4 Delhi,5 and Gauhati6 have all taken the view that Section 34(5) is mandatory in nature. What is strongly relied upon is the object sought to be achieved by the provision together with the mandatory nature of the language used in Section 34(5). Equally, analogies with Section 80, CPC have been drawn to reach the same result. On the other hand, in Global Aviation Services Private Limited v. Airport Authorities of India,7 the Bombay High Court, in answering question 4 posed by it, held, following some of our judgments, that the provision is directory, largely because no consequence has been provided for breach of the time limit specified. When faced with the argument that the object of the provision would be rendered otiose if it were to be construed as directory, the learned Single Judge of the Bombay High Court held as under: (SCC OnLine Bom para 133) "133. Insofar as the submission of the learned counsel for the respondent that if section 34(5) is considered as directory, the entire purpose of the amendments would be rendered otiose is concerned, in my view, there is no merit in this submission made by the learned counsel for the respondent. Since there is no consequence provided in the said provision in case of non-compliance thereof, the said provision cannot be considered as mandatory. The purpose of avoiding any delay in proceeding with the matter expeditiously is already served by insertion of appropriate rule in Bombay High Court (Original Side) Rules. The Court can always direct the petitioner to issue notice along with papers and proceedings upon other party before the matter is heard by the Court for admission as well as for final hearing. The vested rights of a party to challenge an award under section 34 cannot be taken away for non-compliance of issuance of prior notice before filing of the arbitration petition."
The aforesaid judgment has been followed by recent judgments of the High Courts of Bombay8 and Calcutta.
26. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act.
27. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed. As the present appeal has succeeded on Section 34(5) being held to be directory, we have not found it necessary to decide Shri Rai's alternative plea of maintainability of the Letters Patent Appeal before the Division Bench."
37. I had the occasion to consider the nature of the legislative mandate to the courts, where directory provisions in a statute require the courts to render a final decision in a specified time frame in Tribhuwan Prasad Vs. Uttar Pradesh Sarkar and others, reported at 2018 (9) ADJ 466. In Tribhuwan Prasad (supra) the time frame provided in the statute for deciding the appeal was two months.
38. In Tribhuwan Prasad (supra) it was found that the provision containing a time frame to decide the appeal was directory, and then the consequences of the said holding were construed on the foot of good authority. The directory nature of the provision may not require strict adherence but insists on substantial compliance. Most pertinently it does not permit indefinite enlargement of the time fixed by the statute:
"21. Statutes fixing time-lines to accomplish an action, as discussed above, were held to be directory in nature. The legislative intent was sought to be defeated by a highly delayed compliance on the pretext of the provision being directory in nature. The action of the authorities was invalidated and such interpretation was negatived by the Hon'ble Supreme Court. Inordinate delay does not satisfy the requirement of substantial compliance of a directory provision. The Hon'ble Supreme Court in the case of State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and another, reported at (1987) 2 SCC 602, while laying down the law, dispelled all such doubts. The relevant parts of the judgement are being extracted for ease of reference:
"14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."
39. Thereafter, the duties of the court and the manner of implementation of the law were laid down :
"23. In case the appeal is decided within two months, the letter and spirit of the statute is implemented. However, mere failure to decide the appeal within two months does not violate the statutory mandate. In the latter case, the statutory obligation will be defined by the quality of the efforts made to decide the appeal with promptitude and dispatch. The obligation will be met if the appeal is decided within a reasonable time, after the expiry of two months from its institution.
24. Statutes of limitation are statutes of repose. Statutes with time lines for decision making are statutes of endeavour. Statutory duty is discharged not only when the act is done but also when effort is made. However, the leeway to the authority is not unlimited and the time to accomplish the act is not indefinite. The statutory duty of the appellate authority, in the event the appeal is not decided within two months is to be seen.
25. The appellate authority shall have discharged its statutory duties initially, if it makes efforts commensurate to decide the appeal expeditiously, and finally when it enters a judgement, in a reasonable time after the expiry of two months. In such circumstances, the appellate authority can implement the law, by making honest endeavours and serious efforts to decide the appeal with dispatch and expedition. This is the statutory duty of the appellate authority. While the statutory duty of the appellate authority is to make earnest efforts to decide expeditiously, the proof of its performance is in the order-sheet of the court. The order-sheet of the appellate court is the most reliable evidence of the sincerity or earnestness of the efforts made by the appellate authority. The order-sheet of the appellate court is true testimony to the accomplishment of the statutory duty or the failure of the authority to perform its statutory duty. In the latter case the authority is liable to be mandamused."
40. A composite reading of Section 34 (5) and (6) of the Arbitration and Conciliation Act, 1996, the law laid by the Hon'ble Supreme Court in State of Bihar and others (supra) and this Court in Tribhuwan Prasad (supra) yields these results. Section 34(5) and (6) of the Arbitration and Conciliation Act, 1996 being directory in nature, prevent the courts from being rushed into decisions by breaching fundamental norms of fairness and justice. The timeline set by the statute, cannot stampede the courts into passing orders which cause miscarriage of justice. However, the courts cannot extend the statutory time frame indefinitely or unreasonably. Neither can the courts be purblind to the timeframe provided in the statute on the pretext that provision is directory. Substantial compliance of the said provisions is sufficient to satisfy the legislative mandate. What substantial compliance entails in regard to these provisions needs to be understood clearly to enable the courts to implement the law faithfully. The duties of the court while deciding an application under Section 34 of the Arbitration and Conciliation Act, 1996 are distilled hereinunder.
41. The courts always have to be alert to the statutory time period of one year to decide the application, and make sincere efforts to adhere to the stipulated time line. In case the application is not decided within the statutory time limit of one year, the court should make all out endeavours to decide it within a reasonable time frame thereafter. At all times, the mandate of law requires the court to proceed with full diligence, and make earnest endeavours to decide the application under Section 34 of the Arbitration and Conciliation Act, 1996, within the time prescribed by the statute or in proximity to it. An unreasonable delay in deciding the matter represents a failure to implement the law. If serious efforts to decide matter within the statutory time frame is the requirement of the law, the order-sheet of the court is the most reliable evidence of the implementation of the law.
42. From the facts of the case prised out at the very inception, and the law discussed in the preceding paragraphs these facts are established. The proceedings under Section 34 of the Arbitration and Conciliation Act, 1996, registered as Arbitration Case No.903 of 2017 (Sahkari Awas Nirman Evam Vitt Nigam Ltd. Vs. Paresh Saxena), could not be concluded within the prescribed statutory time limit, or in a time frame proximate to it. No end to the proceedings is in sight. And if the order-sheet of the court below is a guide, the proceedings could well linger indefinitely. The delay in deciding the case is unreasonable and unacceptable. Long identified and familiar reasons have caused the delay in this case. Unnecessary time taken in service of notices, absence of the presiding officer, adjournment of counsels, and abstention from work by counsels on account of repeated strike calls, have prevented the proceedings from being concluded by a final judgment.
43. The compliance of directions of the Hon'ble Supreme Court and adherence to the law laid down by this Court in various authorities discussed earlier is not in evidence. The legislative mandate of Section 34 (5) and (6) of the Arbitration and Conciliation Act, 1996 has not been implemented. The stakeholders have shown apathy towards the litigant, and indifference to the noble charter of the legal profession. Honest endeavours and earnest efforts to conclude the proceedings with diligence and dispatch are not disclosed from the order-sheet. The order-sheet of the case is equally a reflection and an indictment of the judicial process. The court has ample powers to ensure that the process of law is not stalled by the dilatory tactics of any party. The courts are not helpless and cannot be seen to be helpless.
44. The rule of law cannot be flouted or permitted to fail. It is the obligation of this Court to ensure that the rule of law is upheld under all circumstances.
45. In light of these facts and the authorities at hand, I am of the opinion that this is a fit case to exercise the supervisory jurisdiction under Article 227 of the Constitution of India by issuing strict directions to decide the matter finally within a stipulated period of time.
46. The supervening event of the COVID 19 pandemic, and its impact on the judicial process has to be noticed before issuing final directions. It is true that COVID 19 pandemic has disrupted the regular functioning of the courts. Admittedly, certain latitude has to be given to the courts and the counsels in view of the prevalence of the COVID 19 pandemic.
47. But it is equally true that compliance of law laid down by the Hon'ble Supreme Court and this Court cannot be neglected on the pretext of the pandemic. The law cannot be held in suspended animation for the same reason.
48. If the rule of constitutional order is to exist at all times, the rule of law has to prevail under all circumstances. Laws cannot stand still and courts cannot fall silent, even in the face of mortal peril to humanity. Laws will evolve and the courts will adapt, but their existence is constant and their reckoning is inevitable.
49. The courts in the State have adapted their functioning to the new realities of the day. Detailed guidelines have been issued by the High Court on the administrative side, regarding functioning of the courts in the district judgeships of the State of Uttar Pradesh during the COVID 19 pandemic. The proceedings of this case shall be conducted in adherence to the said guidelines, and this case shall be treated as "most urgent" at all times.
50. The following measures shall facilitate the learned court below / the learned District Judge, Ghaziabad, to dispose of the said proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 in the time stipulated in the succeeding paragraphs:
(I) The learned court below / the learned District Judge, Ghaziabad, is directed to decide the Arbitration Case No.903 of 2017 (Sahkari Awas Nirman Evam Vitt Nigam Ltd. Vs. Paresh Saxena), within a period of six months from the date of receipt of a certified copy of this order.
(II) The learned court below / the learned District Judge, Ghaziabad, shall not grant any unnecessary adjournment to the parties.
(III) In case any adjournment is granted in the paramount interest of justice, the learned court below / the learned District Judge, Ghaziabad, shall record the reasons for adjournment and impose costs not below Rs.10,000/- for each adjournment upon the party seeking such adjournment.
(IV) In case the counsels abstain from work on account of strike calls, the learned court below / the learned District Judge, Ghaziabad, shall proceed in the absence of such counsels and pass appropriate orders. The parties shall be permitted to appear in person if they so desire.
(V) In case the counsel for any party does not appear before the learned court below / the learned District Judge, Ghaziabad, on any date on account of strike of advocates, the learned court below / the learned District Judge, Ghaziabad, shall not permit such counsel (of either party) to appear in this case on all future dates.
(VI). In this case, if the functioning of the court is brought to a stand still because of strike call, the learned court below / the learned District Judge, Ghaziabad, shall take out appropriate proceedings in law against the erring counsels for flouting the directions of the Hon'ble Supreme Court in the cases of Ex-Capt. Harish Uppal (supra) and Krishnakant Tamrakar (supra).
(VII) The learned court below / the learned District Judge, Ghaziabad shall fix at least two dates every week in the matter. If required, the learned court below / the learned District Judge, Ghaziabad shall proceed with the matter on a day to day basis, and even in the absence of counsels, to ensure that the above stipulated time period of six months for concluding the proceedings is strictly adhered to.
(VIII) If the Presiding Officer is not available for any reason, the matter may be transferred to another competent court which is available, if required in the interest of justice and permissible by law.
51. This order shall be held in abeyance in case the court is shut down due to any emergency created by COVID-19 pandemic. However, the order shall become operative immediately after the reopening of the court. The time-line in this order shall be adjusted accordingly by the learned Presiding Officer.
52. The petition is finally disposed of.
Order Date :- 14.08.2020 Ashish Tripathi