The ramifications of apathy in certain sections of the district judiciary

“Does all the investment which the Judicial Academy has been making for updating and upgrading the level of legal awareness of the District Judiciary yield only less than optimum results? Or, is there an attitudinal problem with a section of our District Judiciary?”

These were questions raised by the Madras High Court recently while dealing with the attitudinal problem of the registry and judicial officers of the district judiciary, causing unnecessary difficulty for litigants and their advocates at the entry level itself.

While reading these lines, I am reminded of a recent bitter experience in which a similar apathetic, plain insensitivity, or rather disinterest, of a district court to appreciate a legal concept and the ignorance or lack of interest to acquaint with the concept, adversely affected the interests of one of our clients. Without getting into the merits of the case, which is now disposed of, I would just like to discuss the ramifications of such ignorance or insensitivity.

In writ petitions challenging an award of the labour court that directed reinstatement of employees terminated from service with a quantum of back wages, the Madras High Court issued “rule nisi” while admitting the petitions. This order was also communicated to the labour court, in which execution proceedings had been initiated by the respondents and hence the proceedings were kept in abeyance for some time. Meanwhile, the writ petitions were also coming up for final hearing before the appropriate bench. It was only at this juncture that the executing court suddenly started proceeding with the execution based on a memo filed by the respondents (decree holders before the executing court) stating that the Madras High Court Registry responded to their query under the Right to Information (RTI) Act that there was “no stay” in the writ petitions.

Thereafter, a memo through our client’s advocate before the executing court, along with the rule nisi order, was immediately filed before the executing court, stating that the award of the labour court cannot be executed in view of the rule nisi in operation. Our detailed note and precedents explaining the legal consequences of the rule nisi were also filed along with the memo.

Though the memo was taken on file, the executing court moved further and directed the arrest of the Managing Director of the judgment debtor (the institution that we were representing) on the ground that “…Decree Holder has obtained particulars regarding the writ petition under RTI Act and the Hon’ble Court has stated that in the writ petition no stay was granted…when such being so, the contention of the counsel for the Decree Holder that there is no legal impediment in proceeding the case is found to be sustainable one.”

The order did not whisper about the operation of the rule nisi issued by the Madras High Court or the consequences thereof, rendering the order ineffective.

The order was shocking because: firstly, it was nobody’s case that the Madras High Court had granted stay of operation of the award that the court was called to execute. There was no place for a stay order when rule nisi had been issued. Secondly, while relying on an RTI response that “there was no stay granted” (a ministerial function of the registry answering the specific query whether a stay order was granted), the court lost sight of the fact that there was a judicial order of the Madras High Court granting rule nisi as against the award under challenge. Thirdly, despite filing a copy of the rule nisi order along with precedents explaining the consequence of the order, the court miserably failed to even discuss the same, let alone appreciate it.

Rule nisi is a very old legal concept imported from Common Law. As early as 1951, the consequence of rule nisi issued against a decision in appeal was explained by Chief Justice PV Rajamannar, in the following words:

“It is obvious that the decision in the appeal is again set at large, as it lost its finality the moment this Court issued the rule nisi.”

In the words of Justice Veerasami:

“The Tribunal, proceeding to dispose of the revision petitions, notwithstanding the rule nisi issued by this Court in W.P. No. 59 of 1962, seems to have wholely misunderstood the effect of grant of a rule nisi by this Court in a petition for certiorari… The effect of a rule nisi in a petition for certiorari is that the order against which it is directed, is set at large…its effect is merely that the finality of the order sought to be quashed is as it were suspended and the matter is open for scrutiny by this Court…this effect points to the position that the inferior Court or Tribunal is not free, unless specifically directed or permitted by this Court, to proceed to deal with the very order to which the rule nisi relates.”

Needless to quote countless other precedents, unlike an interim stay of operation of an impugned order, when rule nisi is issued by a higher court in a proceeding challenging an order of the lower court, the impugned order loses its finality, and therefore, the same cannot be executed unless an express order of the higher court is passed to that effect. In view of this proposition, rule nisi is a larger relief than an interim stay order, in which case the impugned order does not lose its finality, but merely its operation is stayed.

Thankfully, the Madras High Court subsequently granted interim protection from arrest while hearing the writ petitions which are now disposed of.

But who is to blame for the trauma caused to the Managing Director facing imminent threat of arrest (particularly since the respondents also quickly filed process application seeking arrest) till the interim protection was granted? The impact the arrest order created on the writ court at the time of final hearing is also inexplicable.

The MD, who immediately rushed to Chennai seeking some relief from the High Court against the order of arrest, asked us,

"Why had you not got an interim stay order against the labour court award?"

For obvious reasons, I could not explain that we had obtained a larger relief than a stay order, particularly when the executing court manned by a judicial officer was not in the mood to even acknowledge the same.

It would have been an entirely different case if the rule nisi in operation was never brought to the notice of the executing court, or for sound legal reasons recorded in the order, the executing court decided to proceed despite the operation of rule nisi. Is the audacity of the respondents or their counsel while misguiding the executing court that "there was no impediment in proceeding with the case" despite having knowledge of the rule nisi in operation, not a result of an apathetic section of the district judiciary disinterested in appreciating legal concepts, doctrines or principles of law?

I reiterate the words of the Madras High Court in the judgment referred to at the start of the article.

“It requires no more than invoking the maxim ‘res ipsa loquitor’ to explain the inconvenience which the Registry or the Courts might be creating for the litigants or their counsel. Does it not then reflect an element of apathy or plain insensitivity in certain quarters of the District Judiciary?"

Nirmalkumar Mohandoss is an Advocate based in Chennai. He can be reached at nirmalkumar.m.law@gmail.com