A Judicial Performance Commission-Need of the Time

(By V.G. Govindan Nair Advocate, Trivandrum)

Recent developments of conflict and divisions in the Bench and the Bar deserves serious thought. In the present set up of Judiciary-Bench and the Bar in their independence requires protection of law and they have to be kept high in the respective fields. Judicial discipline and the independence of the Bar are to be kept up for the sustenance of rule of law.

If a Judge errs in law it can be corrected in appeal, but ultimately if there is an error it is to be reviewed by the Judges when they realise that there is an error. If a Judge acts in an in judicial manner there is often much less that an aggrieved person can do, occasionally misconduct and misbehaviour are alleged against Judges. There may be a few cases as Mr. Justice Jackson of the U.S. Supreme Court observed in 1952 that "men who make their way to the Bench sometimes exhibit vanity, irascibility, narrowness, arrogance and weakness to which human flesh is heir". It would be amazing or rather alarming, if some of the eminent legal minds that constitute the judicial system act injudiciously. Certain temperaments of the persons can be styled to be 'Judges disease' in many ways because of bad temperament and the injudicious act. A Judge may grow sometimes unfit for his office. It is pertinent to consider what sort of sanction exists now in relation to Judges who are unable to act in a judicial manner. In England the judicial performance depends on judicial self restraint and self control. In case of failure of these qualities or when litigants believe that the qualities have failed, there is need for an independent forum in which complaint about judicial performance can be considered.

For the misconduct, a Judge can be removed, but it is a difficult process of law. The nature of misconduct may be simple or complex which may spoil the whole system. Hence, it requires a serious thought to have a forum where the conduct of the Judge can be examined. In many parts of the world individuals who are dis-satisfied with judicial conduct have a right of access to Judicial Performance Commission. The majority of American States have such mechanisms. The relevant authorities have been conferred with power to investigate whether the Judge has acted in any way other than the judicial manner. Certain personal misconduct like offensive overtones and of a temperament unsuited for judicial office and refusal to listen to the arguments of lawyers and other conduct unsuited for the Judge can be considered by Judicial Performance Commission to report to proper authorities. But at the same time, it should not be misused. The legal system would be benefited by an introduction of Judicial Performance Commission to carry out such functions. The existing mechanism for considering complaints of in judicial behaviour on the Bench are plainly inadequate. Therefore, a new look out is to be made for the betterment of the legal system in the country especially when there are reports of conflicts and divisions in die Supreme Court Bar on the conduct of members of the Bench. This is the relevant time for the people to think of constituting a Judicial Performance Commission for the purpose. It is true that the judicial independence requires a large measure of judicial immunity from sanctions in injudicious conduct. The rationale in the present immunity of Judges from legal sanctions for their conduct has been explained in the leading cases. Mr. Justice Crompton dismissed a case by stating that there is no cause of action on which a claim brought against his colleagues Mr. Justice Blackburn by a dis-satisfied litigant. It is further said that it is a principle of our law that no action will lie against a Judge for the judicial act though it is alleged to have been done maliciously and corruptly. This rule exists for the benefit of the Judges and was established to secure the independence of the Judges and prevent them from being harassed by vexatious actions. But Lord Denning opined that (he judicial immunity from actions for damages exists not because the Judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

Judicial independence was not designed as and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier of examinations of complaints about injudicious conduct on political criteria. A man who has an arguable case that a Judge has acted corruptly or maliciously to his detriment should have no cause of action against the Judge is quite indefensible. Can judicial independence be a reason in principle for rejecting a Judicial Performance Commission. It would be better in the proper assessment to have a Judicial Performance Commission by experts to consider the injudicious conduct. It will be a need for the time and inevitable for the survival of the rule of law. The reputation of the judiciary can only be benefited by creation of a Judicial Performance Commission. The powers of Judicial Performance Commissionshouldbelimitedtoconsideringcomplaintsofinjudiciousconducts. Itmust be prohibited from investigating whether Judge reached the correct decision on a point of law. It is for the appellate courts to analyse the decision of the Judge. But where the Judge has clearly erred in law the Commission may be entitled to consider a complaint of judicial incompetence. In a way the Judges can be screened on their competency and incompetency can be shut out for improving the legal system and to see the justice is administered in the Country in a just manner.

'King can do no wrong' principle is no longer a law in India. The constitution of the Judicial Performance Commission would also reconcile the preservation of judicial immunity from improper interference. Out of court conduct of Judges and inside behaviour and the disposal otherwise than in a judicial manner and the conduct of unsuitability on inefficiency will be a subject of consideration of the Judicial Performance Commission. No doubt, considerable discussion is required to determine the composition of a judicial performance commission, the procedure it has to adopt and the matter with which it will be concerned. It is the need of the time or high time to have a Judicial Performance Commission for the country in view of the various conflicts and divisions cropped up among the members of the Bench and the Bar. State is liable for the wrong committed by the judicial wing of the State. In such a development in the legal system it is high time to have the mechanism for the Judicial Performance Commission and to screen the Judges on efficiency for betterment of the legal system in the country. Ultimately the findings must be reasoned, public, transparent, objective so as to make public convinced that justice is the only motto and "how high so ever you be law is above you".

Any Difference in the Defence available to the Insurers under 1939 and 1988 Act and Whether the Decision Reported in 1996 (1) 393 Requires Reconsideration

(By C.R. Kesavan, Advocate, Tirur)

1. An Insurer who is given notice of application for compensation under 1939 Act is entitled to defend the action on 3 grounds enumerated in S. 96(2) clauses (a), (b) and (c). Clause (a) pertains to a defence that the Insurance Company is not liable if the Policy is cancelled by mutual consent or by virtue of any provisions contained therein before the accident giving rise to the liability. The defence under CI. (b) is that the insurer can avoid the liability if there is any breach of certain specified condition of the Policy as enumerated therein under Sub clause (i), (ii) and (iii). The 3rd defence under clause (c) is that the insurer can avoid liability if the Policy is obtained by non-disclosure of material fact or representation of fact which was false.

2. While enacting 1988 Act, the Legislature deleted the 1st defence in cl. (a) of 1939 Act and other 2 defences available under clauses (b) and (c) of 1939 Act are retained AT IT IS in the 1988 Act. Due to the deletion of the 1st defence in cl. (a) of 1939 Act, the changes in serial numbers of the clauses is necessitated and with the result what was the 2nd defence in cl. (b) of 1939 Act is numbered as cl. (a) and similarly cl. (c) in the old Act is numbered as cl. (b) under the new Act. But it must always be borne in mind that the cl. (b) in 1939 Act pertains to the defence of breach of specified conditions of Policy and this is now cl. (a) in the new Act and the defence of suppression of material fact while obtaining the policy in cl. (c) in the old Act is cl. (b) in 1988 Act and this clause is nothing to do with any condition of the Policy and any breach thereof.

3. The driving licence as defined in S. 2(10) of the M.V. Act 1988 should not only authorise the holder to drive a motor vehicle but it should also specifically authorise him to drive a particular class, description or type of a motor vehicle. No person shall drive a motor vehicle in any public place unless he holds an effective driving licence and to drive a transport vehicle he should be specifically entitled as per the licence. As regards the definition and necessity for driving licence etc., the provisions contained in both the 1939 and 1988 Acts are similar. Driving a motor vehicle by a person not duly licenced is a breach of specified condition of a Policy and this is a defence available to the insurance company under both the 1939 and 1988 Act (vide S. 96(2) (b)(ii) and S. 149 (2) (a) (ii) of the respective Acts.

4. The consistent view of the High Courts of Punjab and Haryana, Gujarat, Karnataka and Andra Pradesh is that it is a good defence to the Insurance Company to avoid liability if the driver of a motor vehicle is not duly licenced. The latest pronouncement of the Hon'ble Supreme Court reported in 1996 AC J 253 establishes the fact that a person who is not duly licensed (even a learner's licence is not sufficient) is a good defence available to the Insurance Company and the Policy of Insurance contemplates that the Insurance Company would be liable only if the vehicle is being driven by a person holding a valid driving licence though it is the decision rendered under S. 96(2)(b)(ii) of the M.V. Act, 1939. When the insured allows the vehicle to be driven by a person not duly licensed there is a wilful breach of specified condition of the Policy and the Insurance Company is not liable at all is the law of the land as reported in 1989 AC J1078 SC while dealing the provision contained in S. 96(2)(b)(ii) of 1939 M.V. Act. The corresponding provision under 1988 Act is identical and hence to hold the Insurer liable, or to direct the company first to pay the quantum of liability which in law it is not liable and then to direct the Company to realise the amount from the actual person who is liable in law is not to give the correct legal effect of the provisions of law contained in both the Acts in case the provisions are identical in both the Acts.

5. While giving legal effect to Sub-ss. 2 and 4 of S. 149 of M.V. Act 1988, our Hon'ble High Court in a case wherein the driver is found not duly licensed has made the Insurance Company liable and directed first to discharge the liability and then to recover the amount from the insured as per the ruling reported in 1996 (1) KLT393 (The Oriental Insurance Co. Ltd., v. Usha). It appears that the decision rendered by our Hon'ble High Court is without taking into account the real legal effect of S. 149 of the Act especially sub-s. 4 therein with reference to the earlier provisions contained in 1939 Act. It can be seen from the following comparison of the provision contained both in S. 96(2) and (3) of 1939 Act and S. 149 (2)(4) of 1988 Act that the Legislature, as a matter of fact, has never intended to effect any change as regards the defence opened to the insurer in 1988 Act expecting the deletion of the 1st ground of defence that the policy is cancelled by mutual consent etc. etc. as contained in clause (a) in S. 96(2) of the old Act.

Comparative Study

6. It can be seen from the above comparative study of the provisions under both the Acts that the defences opened to the Insurance Company to avoid liability are identical and the only difference is that the first ground contained in S. 96(2) Cl. (a) (the Policy was cancelled by mutual consent or by virtue of any provisions contained in the Policy before the accident giving rise to the liability) is taken away and deleted in the new Act. This first ground of defence is not available now unlike in the old Act (Cl.(a) of the 1939 Act.)

7. The second ground of defence in 1939 Act which is the first ground in 1988 Act opened to the Insurance Company under both the Acts is the breach of certain specified conditions of the Policy and this ground is also identical under both the Acts. It may be borne in mind that this ground of defence IS THE BREACH OF SPECIFIED CONDITIONS OF THE POLICY and not a ground under the existence of certain given fact and circumstances as in the third ground of defence. (Vide Cl.(b) of 1939 Act which is corresponding to Cl.(a) of 1988 Act).

8. The third ground of defence in 1939 Act which is the 2nd ground in 1988 Act (it is not breaches of specified conditions of the policy) opened to the insurance company under both the Acts is that the company can avoid the liability if the policy is void on the ground that it is obtained by non-disclosure of material fact or by representation of facts which was false in some material particular, (vide cl. (c) of 1939 Act which is corresponding to cl. (b) of 1988 Act).

9. Thus, previously under the old Act there were 3 grounds of defences whereas under the new Act there are 2 grounds of defence. When the 1st ground of defence is deleted under the new Act, what was contained as 2nd ground of defence under the old Act (S. 96(2) Cl. (b) - breach of certain specified conditions of Policy) happened to be the 1st ground of defence under the 1988 Act (S. 149 (2) cl. (a)). In short cl. (b) of old Act is now cl. (a) under the new Act and similarly what was contained as 3rd ground of defence in S. 96 (2), cl. (c) of the old Act happened to be the 2nd ground in S. 149 (2) cl. (b). This is the only distinction between the 1939 and 1988 Acts.

10. When a ground of defence of breach of certain specified conditions of the Policy is opened to the insurance company under cl. (b) of S. 96(2) of the old Act (cl. (a) of S. 149(2) under the new Act), the Legislature wanted to make it dear that any-other condition other than those certain specified conditions in the Policy cannot be pressed into service by the Insurance Company and referred to avoid statutory liability and such conditions will be of no legal effect. Hence, sub-s. (3) of S. 96 of (lie old Act is enacted to carry out the above intention and which is corresponding to Sub-s. 4 of S. 149 of the new Act. On a reading of S. 96(3) of the old Act it is clear that the breach of specified conditions of the Policy enumerated in cl. (b) of S. 96(2) are saved and protected and the defence of breach of such certain specified conditions contained in Cl. (b) is always opened to the Insurance company to avoid liability. When a person can legally avoid a liability under certain given circumstances, the question of asking that person to discharge first the liability and then to recover the amount paid from the person actually liable does not arise at all (vide 1990 ACJ 757 Karnataka).

11. On a comparison of the provisions contained in Sub-s. (3) of S. 96 of the old Act and Sub-s. 4 of S. 149 of the new Act one can find that the legislature as it is simply copied down the provisions contained in Sub-s. 3 of S. 96 while enacting the Sub-s. 4 of S. 149. The words 'cl. (b) of Sub-s. (2)" appearing therein are also copied and referred in Sub-s. 4 of S. 149 of 1988 Act as in the old Act instead of cl. (a) by forgetting the fact that cl. (b) conditions of Policy of the Old Act is now cl. (a) under the new Act due to the deletion of cl. (a) of the old Act and re-numbering the clauses in Sub-s. (2) while enacting the new Act and also forgetting the vital fact that the cl. (b) in Sub-s. (2) of S. 149 of the new Act does not pertain at all to any conditions of Policy but totally a different ground of defence on the happening of a certain event viz., that the policy is void as it is obtained by suppression of material fact etc. etc. The reference of cl. (b) therein in Sub-s. 4 instead of cl. (a) is a clear mistake committed by the legislature. If a literal interpretation is given to the provisions contained in Sub-s. 4 of S. 149 of 1988 Act without diving deep into the matter as appears to have been done by our Hon'ble High Court while deciding the case reported in 1996 (1) KLT 393, the result would be that certain right of defence given under S. 149(2) cl. (a) is taken away under Sub-s. 4 of S. 149 and the Insurance Company cannot avoid liability under any circumstances expecting on the ground that the Policy is void due to happening of certain events. This definitely is not the real intention of the Legislature and reference to cl. (b) instead of cl. (a) in Sub-s. 4 of S. 149 is an inadvertent mistake committed by the Legislature in its hasty legislation.

12. Any contract entered into between two parties is void if it is obtained by suppression of material fact and mis-representation of fact. This is more so in the case of a contract of insurance as it is a contract wherein utmost good faith is expected from the contracting parties. This substantive defence is always opened to the Insurance Company under the old Act as well as under the new Act. Under cl. (c) in Sub-s. 2 of the old Act (cl. (b) under the 1988 Act) the Insurance Company can avoid the liability if the Policy is void if it is obtained by non-disclosure of material fact and representation of fact which was false as in cl. (b) of Act 1988. But cl. (c) is not referred in Sub-s. 3 of S. 96 of the 1939 Act but cl. (b) alone finds a place therein. If a literal interpretation of this provision is done as seen done by Their Lordships of our High Court while deciding the case reported in 1996(1) KLT393, the result would be that one can easily say that as there is no reference of cl. (c) in S. 96(3) of the old Act the defence that the policy is void due to non-disclosure of material fact is not available to the Insurance Company under the old Act. The defence under cl. (c) of the old Act is always opened to the Insurance Company under the old Act despite the fact that it does not find a place in Sub-s. 3 of S. 96 of the old Act, since it does not pertain at all to any conditions of Policy. What is saved under both sub-s. (3) of S. 96 old Act and Sub-s. 4 of S. 149 new Act are certain conditions of Policy and they are only referred therein and it is nothing to do with the other ground of defence mentioned in cl. (c) of the Old Act which is corresponding to cl. (b) of the new Act. It appears that this vital distinction was not brought to the attention of the Learned Judges and hence, the decision in 1996 (1) KLT 393 is rendered on a mere literal interpretation of Sub-s. 4 of S. 149 of the M.V. Act, 1988. The reference to cl. (b) in Sub-s. 4 of S. 149 of 1988 Act is evidently a mistake crept in due to the deletion of the 1st ground of defence contained in cl. (a) of the old Act, and in order to give the correct legal effect of the sub-s. 4 of S. 149 of 1988 Act, it is to be interpreted in a meaningful manner to avoid the anomaly. If a meaningful interpretation is given by comparison of the provision contained in both the Acts it can be seen that the Legislature never intended to take away the defence given to the Insurance company as per S. 149 (2)(a). When there is an ambiguity in a statute a clear distinction has to be drawn between the literal approach and purposive approach and the purposive approach is adopted in order to give the correct legal effect. The very purpose of enacting S, 149 of 1988 Act is to save certain conditions of Policy in order to enable the insurer to take shelter under those conditions to avoid liability. If literal interpretation is given to S. 149(4) of 1988 Act it would be meaningless and the very object of legislation would be defeated exposing the insurer to all kinds of risks. Normally war and riot risks are excluded in a contract of insurance. War risks are specifically included when war is declared between two countries. In recognition of this established principles which reigns the field, the injury caused due to war, riot and civil commotion are specially excluded as per S. 149 (2) cl. (a) (iii) of M. V. Act, 1988, and the company can always avoid the liability on these grounds with reference to conditions contained in the Policy of Insurance. By giving a literal interpretation of S. 149(4) of 1988 Act, if cl. (a) policy conditions are not brought within the ambit of the saving clauses therein, the insurance company has to pay even in a case when all occupants in several stage carriage buses parked in a bus stand are reduced into ashes due to the bombardment of an enemy plane during the time of a war. Similarly, due to the riot or civil commotion if all passengers in a stage carriage are burned alive by rioters, the insurance company has to pay compensation. This is not the scheme of the M. V. Act despite the fact that it is a social legislation to protect the innocent victims of the road accidents.

"Where the language of a statute in its ordinary meaning and gramatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of die words and even die structure of die sentence". (MAXWELL ON INTERPRETATION OF THE STATUTES).

According to Benjamin Cardozo the eminent jurist,

"There are gaps to be filled, mere are doubts and ambiguities to be cleared up". "There are hardships and wrongs to be mitigated, if not avoided" while interpretating a statute in order to give correct legal effect."

While interpreting the scope of a particular provision of law the Court must ascertain the intention of Legislature by looking at not merely to the clauses to be construed but to the entire statute as opined by our Hon'ble Supreme Court in (1979) 4 SCC 85. "A statute is not to be interepreted merely from the Lexicographer's angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment, and the language employed therein." The meaning and intent of the Legislature is to be gathered not merely from the words used by the Legislature but a variety of other relevant circumstances. "To he literal or to be blinkered by some rigid cannon or restriction may be to miss the life of law itself as opined by our Hon'ble Supreme Court in (1977) 1 SCC 155. "In order to know what is the provision contained in a particular provision of law one has to know what it has been, and what it tends to become". "We are interested with law as it is. If this leads to unjust results it is a matter for Parliament and not for us" is not the stand expected from a Judge while giving a correct legal effect to a particular portion of the provisions of the statute.

Hence, cl. (b) of Sub-s. 2 referred to in S. 149(4) is to be read as cl.(a) of Sub-S. 2 in order to give the correct legal effect, and to obviate the unintentionally  anomaly committed by the Legislature the decision reported in 1996 (1) KLT 393 requires immediate reconsideration and the Legislature is also to see that this anomaly is not allowed to be there in the statute any longer.

The Full Bench Fallacy

(By K.V. Sohan, Advocate, Ernakulam)

1. The Full Bench decision Kerala Fisheries Corporation v. P.S. John, 1996 (1) KLT 814 held that (1). The Collector exercising power under the Revenue Recovery Act is not a Court and Limitation Act being applicable only to 'Court' will not apply to proceedings for recovery of any amount by the Collector. (2) Assuming Collector is a Court, once any amount due to any institution notified to be recoverable under the Revenue Recovery Act, by fiction the amounts due to those institutions arc amounts due to Government and the period available for recovery of amounts due to those institutions under the Act would also be 30 years provided for recovery of government dues under Article 112 of the Limitation Act.

2. Hon'ble Mr. Justice Balasubramanian on behalf of the Full Bench traced the law, rather the confusion created by the Supreme Court from Athani Municipality (AIR 1969 SC 1335) to Mitkri Gopalan (AIR 1995 SC 2272) and correctly found that Limitation Act is applicable to all applications under any Act in any "Court".

3. Learned Judge quoted Birla Cements Works case (AIR 1995 SC 1111) which held that Railway Claims Tribunal is not a Civil Court and so Limitation Act is not applicable. This decision is not an authority not only due to the later decision of Mukri Gopalan which held that Limitation Act applies to all 'Courts', whether civil, criminal or special courts constituted under any enactments but also due to the apparent misconception of the Supreme Court that Limitation Act applies only to 'Civil Courts' though no where in the Limitation Act it is stated so. Birla Cements does not refer to any earlier decisions also. When I stated above that the Supreme Court decision created confusion, it is with reason. In K.S.E.B. v. T.K.K. (AIR 1977 SC 282) in the last paragraph their Lordships used the word 'Civil Courts'. On a whole reading of the decision it is clear that their lordships used the words 'Civil Court' in contra distinction with Court martial or other Courts where non civilians are dealt with. It is also to be remembered that prior to K.S.E.B. case the Supreme Court in AIR 1976 SC 105 held that Limitation Act applies to criminal Courts. So, the only correct conclusion possible is that the one laid in Mukri Gopalan and accepted as the correct law by the Full Bench.

4. It is clear that Birla Cements case (Railway Claims Tribunal case) unnecessarily narrowed the ratio probably without much application of the mind as in the case of many recent decisions of the Supreme Court. So also the decision of the Supreme Court in 'Officer on Special Duty' v. Sha Manilal Chandulal JT 1996 (2) SC 278, (1996 (9) SCC 414) which held mat the Limitation Act will not apply to Collector acting under Land Acquisition Act is to he doubted. The said decision does not examine whether the Collector discharges duty under the Act has the attributes of a "Court' contemplated under the Limitation Act, It is also to be noticed that the Supreme Court relied on Jokkim Fernandez. (1973 KLT 138) which by the time stood over ruled by Mukri Gopalan. Supreme Courts attention was not brought to the fact of over ruling of Jokkem Fernandez. On a whole reading of the decision, it is clear that the Supreme Court was carried away by the fact that 'court is defined in the Land Acquisition Act. In such circumstances, 'the Act made a distinction between Collector and the Court". It is correct that, for the purpose of Land Acquisition Act, 'Court' is defined to mean a principal Civil Court of original jurisdiction or a specially appointed judicial officer. Evidently, the court defined under the Land Acquisition Act is the Court empowered to go into the correctness of award of the Collector. But the real question was whether the Collector have the attributes of a 'court' while exercising powers under Part II of the Land Acquisition Act. S.5A contemplates an objection to the proposed acquisition and a hearing in person or by a counsel before the Collector. S.14 of the Act gives power to summon and enforce the attendance of witnesses as provided in CPC. Collector has the power to adjourn the enquiry, hear the Council, and make an award. Right to take evidence is also inherent and need not be stated that evidence Act applies to the Collector while acting under Part II of Land Acquisition Act. Supreme Court has not examined, in the light of the above provisions, whether Collector is a Court contemplated under the Limitation Act.

5. The Full Bench examined the sections of R.R. Act and held that Collector acting under R.R. Act has no attributes of a Court. This finding with great respect is incorrect. The result of the decision is that one can be arrested and detained in civil prison or his property can be attached and sold without any adjudication of his liability or recoverability of the amount. The Full Bench did not properly considered the scheme of the R.R. Act. The learned Judge has to concede "while dealing with claims to attached property or considering the arrest of the defaulter under S.65 of the Act, the power to adjudicate is specifically conferred on the Collector" (Para 14 of the Judgment). So, is not the Collector a Court, while at least adjudicating the attachability and arrest of the person? S.34(2) speaks of an objection, enquiry and recording a decision if the defaulter object to the claim of arrears wholly or in part. In S.44(3) if a transferred property is proceeded with, the Collector is to give opportunity of being heard and record reasons. In S.58 for effecting delivery of the property Collector is given all the powers of a Civil Court under CPC. So, at least while acting under S.58, the Collector is a Civil Court. Also, in S.69(3) of the R.R. Act the Collectors to satisfy that the amount is recoverable under the Act. With the aid of the subsequent section the Judges held that when payment is made under protest Collector need not enquire but only send the amount with the protest to the Officer who makes the acquisition. Evidently the protest payment occurs only after the Collector satisfies to proceed. Suppose the legal heirs of the original debtors are proceeded against, when no property devolved on them from the original debtor, or a minor or a lunatic without guardian is proceeded against, they cannot but pay under protest and Collector need not look in to the bar under any other law? Collector need only satisfy that the requisition is made by an authority notified under S.70.

6. On a whole reading of the Act it is clear that unlike the civil proceeding which bifurcates the adjudication of the liability and the executability, the R.R. Act made only a clumsy mixture of both simultaneously for speedy recovery of public revenue. This does not mean that all other laws of the land are not applicable to the Collector proceeding under the R.R. Act. Clearly the R.R. Act contemplates limited adjudication and the Collector while acting under R.R. Act is a Court though not a Civil Court. The reasons for not applying the ratio of State of Tamil Nadu v. Venkataswamy (AIR 1995 SC 21) are also not tenable.

7. As regards the second limb of the finding, it is submitted that it is a fallacy. At this juncture it is to be asked whether amounts due to Government can be recovered by R.R. Act even after the lapse of thirty years? The Full Bench has not answer edit directly. What the Full Bench held in para 18 as I understood is reproduced below as logical premise to show its inherent fallacy without any argument.

Amount due to Government is recoverable

as arrears due on land.

Amount due to institutions notified

under S. 70 are recoverable as

arrears due on land.

So institutions notified under Section 70

of R.R. Act are Government.

11 the above premise is correct, we have to accept the following premise also as correct.

All dogs are mammals

All cats are mammals

So all cats are dogs.

Legal Etiquette: Its Divine Spirit

(By R.P. Remesan, Advocate, Kannur)

Kannur Bar Association had an occasion to cogitate about an issue whether a lawyer who is appearing for the appellant is able to file vakalath for one of the defendant in the same case saying that the defendant is supporting the case of the appellant. It is learnt that the matter has been referred to the Bar Council of Kerala for their remarks for the District Judge of Alleppey and the matter is pending there. It has caused an outburst of enthusiasm.

The Bar Council of India Rules clearly explain the conduct of an Advocate while accepting a brief. The R.33 reads "An Advocate who is, at any time, advised in connection with the institution of the suit, appeal or other matter or has drawn pleadings or acted for the party shall not act appear or plead for the opposite party".

While framing the standard of professional conduct and etiquette it has preambled that "An Advocate, at all times, conduct himself in a manner befitting his status as officer of the Court, the previleged member of the community, and the gentleman, bearing in mind with 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 will be improper for an advocate". The Rules specifically describe the professional ethics in very clear terms. It further says about the duty cast upon an Advocate while he is professing as a lawyer. S. 34 of the said rules denotes the duty of the lawyer to his opponents. R. 34 reads "An Advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate".

The stand of a lawyer who appeared for the plaintiff as well as one of the defendant in the appeal is to be evaluated in the light of the above provisions.

It is impossible to describe all the situations that lead to misconduct. Of course, there are so many occasions to be avoided by an Advocate while practicing Advocacy. The basic principle is that nothing should be done by any member of the legal fraternity which might tend to lessen in any degree of confidence of the public in the fidelity, honesty and integrity of the profession. So, an act that was done by an Advocate should be measured to see whether it will decrease the integrity or raise any suspicion over the integrity of the said Advocate. If the response is positive such act should be curtailed at the outset.

R. 33 interdicts the Advocate to accept brief from the plaintiff and the defendant at the same time. The Advocate is not supposed to accept brief while retained by one party to accept the brief of the other. In a case Supreme Court held that "It is not in accordance with the professional etiquette for an Advocate while retained by one party to accept the brief of other. It is unprofessional to represent conflicting interest except by express consent given by all the concerned after the full disclosure of the fact (AIR 1983 SC 1012). The above ruling seems to justify the act of Advocate herein if he obliged to the condition stipulated in the Supreme Court decision. The Court is of the opinion that it is possible to represent for the both parties even though there is conflicting interest, providing the Advocate shall be given consent by all concerned after a full disclosure of the facts. There is no guidelines or explanations how far it can be possible for an advocate. If it is a very conflicting issue it is not possible for an Advocate to get the consent of all the parties. So we need not place much reliance on this point.

The ruling laid down by the Supreme Court in AIR 1984 SC 110 states that improper legal advice amounts to professional misconduct. Therein it is stated that "When the person consults the lawyer for his advice, he relies upon as requisite experience, skill and knowledge as a lawyer and the lawyer expected to give proper and dispassionate legal advice to the client for the protection of the latter's interest. An Advocate stands in loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches an Advocate of succour in times of need." Since it is the duty of a lawyer to give dispassionate legal advice to his client and the right of the client to receive disinterested treatment from the lawyer, it is not appreciable to accept brief from both parties in the same case. The matter in question contains an averment that the defendant is supporting the case of the appellant. At the time of filing of the case there may be a consensus between the defendant and the plaintiff. By the passage of time, some conflicting interest may arise. On such situation, the stand of the Counsel will not be justified on any ground. He may say that he will withdraw the vakalath of either party on such occasions. This will not change the situation. The Advocate knows the case of the other side and the advice given by him to other party, even though he (relinquishes his vakalath. It is worthy to see the rulings laid down by the Supreme Court In-Re. Sanjeev Datta (1995) 3 SCC 619). It is held that "some members of the profession have been adopted perceptibly casual approach to the practice of profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings many times even illegible and without personal check, verification, the non -payment of court fees ands process fees, the failure to remove of his objections, the failure to take steps to serve the parties et-al. They do not realise the seriousness of these acts and omissions. They do not amount to contempt of the court but do positive disservice of litigants."

On accepting a brief it is the bounden duty of the lawyer to appear before the Court. If he fails to appear before the Court it is a breach of his professional duty. (AIR 1984 SC 618). In the light of this ruling, the act of the Advocate herein raises suspicion. If the Advocate had an occasion to realise that the parties having conflicting interest on the issue and if he is bound to relinquish the brief of one party unilaterally, his withdrawal causes the absence of one party before the Court. On such situation the Advocate will be liable for the breach of his professional duty. The following judgments strictly speak about the necessity of preserving the dignity and purity of this profession. Judgment reported in AIR 1993 SC 1183 in which it is stated that "Legal profession must give the interospection of itself. The general impression which the profession gives today is that the client on service is disappearing and the profession is being commercialised. It is for the members of the Bar to act and take positive steps to remove this impression before it is too late".

It is wiser to see some excerpts of the decision reported in AIR 1994 SC 1654 "Legal Profession is essentially the oriented profession. The ancestor of today' s lawyer

was no more than a spokesman who rendered his services to the needy members of the society by manipulating their case before the authorities that to be. The service were rendered without record and the remuneration received or to be received. With the growth of litigation, lawyering became a full time occupation and most of the lawyers came to depend upon it as die sole source of livelihood.....The relationship between the lawyer and his client is one of trust and confidence. The client engages the lawyer for personal reasons and is at liberty to leave him also for the same reasons. He is under no obligation to give reasons for the withdrawal of brief from his lawyer. The lawyer in turn not an agent of his client and he is dignified responsible spokes man.... He is essentially an adviser to his client and is rightly called me Counsel in some jurisdictions. One acquainted with the facts of die case, it is the lawyer's discretion to choose the facts and points of law which he would advance. Being a responsible officer of the court and the important adjunct of the administration of the justice, the lawyer also owes duty to the court as well as to the opposite side. He has to be fair to ensure that the justice is done. He demeans himself if he acts merely as a mouthpiece of his client".

The decision of Kerala High Court invites assiduous consideration with regard to the dispute in question. It is held that".. .State Bar Council and die Bar Council of India has public duty to perform, namely, to ensure with the monopoly of pradice that is granted under the Act is not misused or abused by a person who is enrolled as an Advocate" (1995  (I)  KLT 311). It is further held that die Bar Council has been created at the State level or Central level not only to protect rights, interests and previliges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized". Considering the aspect that the Bar Council has a bounden duty to see that monopoly of practice granted by the Act is not misused or abused by the person who is enrolled as an Advocate, the Bar Council should submit their remarks to the District Judge that the practice of accepting vakalath of both parties is not appreciable one. In the instant case, one may argue that there will be no harm in accepting the brief from the appellant as well as one of die defendant who is supporting die case of die appellants. This may be a debatable point. But so far as the dignity of the profession is concerned it is the duty of the lawyer to show the public that he has been acting in a faithful and dispassionate manner. The phrase that "the justice not only be done but seems to have been done" also deserves attention. This phrase is applicable to the field of etiquette of a lawyer. He should show die public that he acted in such a manner. The act of die lawyer in die instant case will not show that he has been acting that way. It also invites our attention to die judgment given by Justice Krishna Iyer, in Rangadurai case (AIR 1979 SC 281) that "It is not in accordance with die professional etiquette for one Advocate to hand over his brief to another to take his place at a hearing either for the whole or part of die hearing), and conducting die case as if the latter at himself been briefed, unless the client consents to this course being taken. The counsels paramount duty to the client accordingly where he forms an opinion of conflict of interest exists, his duty is to advice the client that he should engage some other lawyer. It is unprofessional to represent conflicting interest, except by express consent given by all concerned after full disclosure of the facts". Therein it is further held that "the relationship between the lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith .... The lawyer when entrusted with brief is expected to follow the norms of professional ethics and try to protect interest of his client..... " It is better to remember the words of Justice Krishna Iyer before reaching to any conclusion. "Law is no trade, brief no merchandise and so the level that commercial competition should not vulgurise the legal profession" (AIR 1976 SC 242).

In the instant case, the Counsel is justifying his action saying that the defendant is supporting the case of the appellant. That is not a sufficient reason for his doings. As stated earlier, interest of clients may vary during the pendency of the case. Moreover R. 33 forbids the lawyer from appearing for both sides. In short it is not justifiable to accept the brief of both sides even if the interests of the parties are identical.

"Reference" An Odius Procedure

(By R.P. Remesan. Advocate, Kannur)

S.10(1) of the Industrial Dispute Act reads, "Where the appropriate Government is of opinion that any industrial dispute exists is apprehended, it may at any time, by order in writing;

a) refer the dispute to a Board for promoting a settlement thereof; or

b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the second Schedule, to a labour Court for adjudication; or

d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

This section holds an important role in the field of labour dispute. In other words it is the backbone of the I.D Act. S.10(1) denotes the method of inception of a case (dispute) before the court/Tribunal for getting it solved. Unlike other civil dispute the third party (Government) takes an important role in the scene of labour disputes. As per this section where the appropriate Govt. is of opinion that an industrial dispute exists or is apprehended the Govt., can refer the dispute for adjudication, Even though the wording is so the Govt., cannot decide the dispute by itself (1991 SCCL & S 1125). Court verdicts state that to make a reference under S.10(1) is an administrative function and the Govt. cannot go into the merit of the dispute (Western India Match Co. v. The Workmen 1970 II LLJ 256). In a case Govt., decided the matter by itself and refused to refer the mailer for adjudication. So the Supreme Court interfered (1991 SCCL & S.1125). Similar case was also reported in 1989 Lab IC 494 also. In other case the Court held that the power conferred on the Govt, by this section can be exercised only when there is an existing or apprehended industrial dispute (Shambunath Goyal v. Bank of Baroda 1978 I LLJ SC). According to Bombay High Court the Govt., can justifiably refuse to refer the dispute if the dispute is not between the employer and its workmen (A. Sunderambal v. Govt, of India 1983 II LLJ 491). On reasonable occasion the Court refuses to interfere in the matter (1995 LLJ (I) 384).

In brief the section assigned the Govt., certain discretionary powers and it is implicit that the opinion must be an honest one.

Now let us see the object of the I.D. Act 1947.

I.D. Act, 1947 is the successor of Trade Disputes Act 1929. Trade Disputes Act 1929 was enriched because it provides conciliation machinery which was absent in the Trade Dispute Act 1920. Subsequently, during the World War II Govt. of India promulgated the Defence of India Rules. R.81A of the said rules gave powers to the Govt., to intervene in industrial dispute and to provide speedy remedies for industrial dispute by referring them for conciliation. The present Act (Act No.14 of 1947) embodied the principles of Rule 81A of the Defence of India Rules and Trade Disputes Act, 1929.

L.I.C. of India v. D.V. Bahadur (1980 LIC 1218) the Apex Court held that "the Industrial Disputes Act is a benign measure which seeks to pre-empt industrial tensions, provides the mechanics of dispute-resolutions and sets up the necessary infracture so that the energies of partners in reproduction may not be dissipated in counter-productive battles and assurance of industrial justice may create climate of good will."

The I.D. Act shows that it aims at the settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation (as a speedy remedy).

It is unnecessary to explain further, to know the spirit of legislature. It was the outcome of the thought to avoid collusion and promote the tempo of production.

The above narrated analysis often brings our attention to the present state of affair prevalent in the industrial sector. In my opinion S.10(1) of the I.D. Act brought protraction of dispute and eliminated the change of quicker determination of disputes.

Whenever a dispute comes before the conciliation officer, at the outset, he shall address both parties to attend the conciliation meeting. If any one of the party is absent on that day he may sent another notice for another day. If he is absent on that day also, a further notice also be issued. Conciliation may be adjourned on application of the party. It may take a few months altogether. If both parties are present conciliation may take place. If it does not succeed further conciliation may be held and it may take another few months. We can be assumed how far the red-tape (bureaucracy) is helpful for the speedy remedy although the S. 12(6) of ID Act provides only 14 days.

Further more a failure report forwarded to the Govt., will exhaust further span of time. As it was held the procedure before the Govt., in view of the section 10(1) of ID Act is only administrative in character. The other side of the coin denotes bureaucratic exposition. Consumption of time will grace the entire procedure.

The story does not end up here. In the way of industrial adjudication pre-conceived notions or tyranny of dogmas may preponderate. As a result it will be a death i n the womb. The dispute will not come up for adjudication. The case reported in 1991 SCC (L&S) 1125 is a case for example;

Normally an adjudication procedure (from conciliation officer to the Labour Court/Tribunal) may take 6 months to 1 year. A bewildered workman cannot bear such ostensible length of time for a decision from the Court. That is why they are after counterproductive battles.

The delay caused on the way to the reference procedure is unwanted, unwarranted and avoidable. The role of the third party (Govt.) in the arena of industrial dispute will bring skepticism. If a crime is committed the role of the Govt., is very clear since the maintenance of law and order is on their shoulder. In a civil matter even if it is connected with the landed property, Govt., will not interfere on any stage of the case. Govt., shows no interest in these matters. To be precise, the role taken by the Govt., in the scene of industrial adjudication is quite unnecessary.

The Section 17 is corollary to S.10(1). As per the S.17 the award should be published in such manner as the Govt., thinks fit. So the awards need to be forwarded to the Govt. without pronouncing it in the open court. This kind of procedure is also unknown to other branches of law. The award comes into effect on the expiry of 30 days from the date of publication. It may take another span of time up to 6 months to get it published even though the Act allows 30 days only. In a very recent case Govt., had taken 7 years to refer the matter for adjudication. It is reported in 1995 LLJ 958 P&H.

Let us see what will happen if the S.10(1) is substituted with equal provision of order IV Rule I of CP Code. In such a situation an employer or an employee can file a petition or statement as the case may be before the proper forum and the Court or Tribunal upon receiving the said petition or statement may proceed further in accordance with the provisions of the ID Act.

The purpose of publication of award in the Gazettes by abusing precious time and public revenue is also susceptible to incredibility over the interest of the Govt. In short it is a time-worn procedure about hence it demands legislative interference by inserting a provision enabling direct filing of disputes by the employees and employers. In such a situation it is immaterial whether S.10(1) of ID Act is still in force or not.