ADVOCATES: Professional Misconduct
Counsel's paramount duty is to the client and accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts. When a lawyer is entrusted with a brief, he is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. In the instant case, the counsel had not only not disclosed the conflicting interests that he had in the matter but had gone a step further by betraying the trust reposed on him by the complainant. He acted in a manner unbecoming of a lawyer, who was bound by ethical conduct and failed to protect the interest of his client.
Jaipur Vikas Pradhikaran v. Sri Ashok Kumar Choudhary , C.A. No. 5099 of 2002; Decided on 15-9-2011 (SC) [Dr. Mukundakam Sharma and Anil R. Dave, JJ.]
SERVICE LAW: Deemed Confirmation
Where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed on that behalf. Unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or that there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. At the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. In the present case, in the appointment letter issued to the appellant, it was specifically mentioned that his service would be regularized only when his performance during the probation period is found to be good/satisfactory. In view of the aforesaid stipulation, so long an order is not passed holding that the service of the appellant is good and satisfactory, it could not have been held that his service could be regularized automatically by a deeming provision.
Mohd. Salman v. Committee of Management , C.A. Nos. 6601-6602 of 2008; Decided on 8-9-2011 (SC) [Dr. Mukundakam Sharma and Anil R. Dave, JJ.]
LAND ACQUISITION CLAIMS: Court-Fee
In all other States, ad valorem court- fee is payable only when an appeal is filed against the award of the reference court, seeking higher compensation and not in regard to applications for reference under section 18 of the Land Acquisition Act. Only in Maharashtra and Gujarat , the land losers are required to pay half of the ad valorem court-fee while seeking reference to the civil court. Most of the land losers are agriculturists. For many of them, the only source of livelihood is taken away by acquisition of their lands. Though, the collector is expected to award compensation based on the market value, quite often, it is seen that in actual practice, the compensation offered by the collector is far less than the actual market value, thereby forcing the land-losers to seek references to civil court. In such cases, the amount awarded by the collector being comparatively small, the requirement to pay ad valorem court-fee on the application for reference causes irreparable hardship, forcing the land loser to seek a lesser increase than what is warranted. The Supreme Court has suggested that the State Government may consider giving appropriate relief to the land losers by providing for a nominal fixed court-fee, on the application for reference, instead of ad valorem court-fee.
Shri Ambya Kalya Mhatre (D) through LRs v. State of Maharashtra , C.A. No. 7784 of 2011; Decided on 12-9-2011 (SC) [R.V. Raveendran, H.L. Gokhale and Gyan Sudha Misra, JJ.]
ELECTRICITY TARIFF: Powers of Court
The determination of tariff which has to be made by the Central Electricity Regulatory Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. Therefore, the Central Commission constituted under section 3 of the Electricity Regulatory Commissions Act, is an expert body which has been entrusted with the task of determination of tariff and as determination of tariff involves highly technical procedure, the issues with regard to determination of tariff should be left to the said expert body and ordinarily High Court and even the Supreme Court should not interfere with the determination of tariff.
Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd ., C.A. Nos. 5775-5780 of 2007 with C.A. Nos. 725-730 of 2008; Decided on 14-9-2011 (SC) [Dr. Mukundakam Sharma and Anil R. Dave, JJ.]
CONSUMER COMMISSIONS: Courts
The National Consumer Commission is a 'Court' and has jurisdiction to decide dispute raised against an International Air Carrier. The word 'Court' must be understood in the context of a body that is constituted in order to settle disputes and decide rights and liabilities of the parties before it. 'Courts' are those bodies that bring about resolutions to disputes between persons. Generally, the Tribunal, and Commissions do not fall within the definition of 'Court'. However, in some situations, the word 'Court' may be used in a wide, generic sense and not in a narrow and pedantic sense, and must, in those cases, be interpreted thus.
The use of the word 'Court' in Rule 29 of the Second Schedule of the Carriage by Air Act has been borrowed from the Warsaw Convention. The word 'Court' has been employed to mean a body that adjudicates a dispute arising under the provisions of the Consumer Protection Act. The Consumer Protection Act gives the District Forums, State Forums and National Commission the power to decide disputes of consumers. The Consumer Forums can fall within the meaning of the expression 'Court'.
Trans Mediterranean Airways v. M/s Universal Exports , C.A. No. 1909 of 2004; Decided on 15-9-2004 (SC)
CONTEMPT OF COURT
It is settled law that the law of contempt must be strictly interpreted and complied with before any person can be committed for contempt. In the instant case, the Judicial Officers were allegedly prevented by local persons from entering into the District Court. These local persons along with some lawyers were agitating outside the main gate of the District Court premises. The police force was present at the main gate of the District Court but there was no request from the Judicial Officers to the police to help them enter into the court. On various dates, i.e . from 15-12-2006 till 15-1-2007, on all working days, whenever the Judicial Officers reached the main gate of the District Court, the organisers of procession made a request with folded hands not to enter into the court premises and by their persuasion, the Judicial Officers returned to their homes. No request was ever made from the District Judge or from the Registrar General for removal of rostrum put up in front of the gate and clearing the agitators.
The Supreme Court held that no case had been made but to punish the agitators under 'Criminal Contempt'.
Anup Bhushan Vohra v. Registrar General, High Court of Calcutta, 2011 (10) SCALE 561 Decided on 16-9-2011; (SC)
RAILWAYS: Judicial Review
Railway administration is a specialized field. It has to cater to the needs of the entire country. It is for the Railway administration to decide where, how and when trains or coaches should be added or the timings should be changed. The High Courts cannot decide by giving directions to the Railways to provide additional trains, additional coaches and change timings wherever they feel that there is a shortage of trains or need for better timings. The Supreme Court has repeatedly warned that courts should resist the temptation to unsurp the power of the Executive by entering into arenas which are exclusively within the domain of the Executive. How many coaches should be attached, what types of coaches are to be attached, on what lines what trains should run, what should be their timings and frequency, are all matters to be decided by the Railway administration using technical outputs, depending upon financial, administrative, social and other considerations.
Union of India v. J.D. Suryavanshi , C.A. No. 7658 of 2011; Decided on 5-9-2011 (SC)