Even as the Bar has been raising concerns on the conduct of a sitting judge, the Uttarakhand High Court has reined in one of its own..A Division Bench of the Uttarakhand High Court has set aside adverse observations made in a number of orders passed by Justice Lok Pal Singh against a law officer. In one of the orders, the Division Bench noted that the attitude of Justice Singh smacks of malice..“…we feel when the learned Single Judge consistently passes an order recurringly in all proceedings directing the client, who has engaged the services of a professional for taking an action against his counsel, it does smacks malice.”.The issue pertains to four orders passed by Justice Singh over the course of April and May this year. In the orders, the judge repeatedly made adverse observations against Chief Standing Counsel for the State of Uttarakhand, Paresh Tripathi..The orders – passed on April 26, May 8, May 24 and May 29 – follow a common blueprint. The judge has observed that Tripathi is not serving the interests of the state government, is not allocating cases to law officers efficiently, and is deliberately refusing to appear before him. Hence, in each of the orders, Justice Singh has directed the State Law Department to take action against Tripathi..An aggrieved Tripathi filed a Special Appeal against each of these four orders, and the Division Bench of Justices Rajiv Sharma and Sharad Kumar Sharma found it appropriate to set aside the observations made by Justice Singh against the Chief Standing Counsel..Order dated April 26.In a case related to equal pay for equal work for lab assistants in schools, the State was required to file a counter affidavit by April 19. On finding that the same was not filed, the Court came to the conclusion that it was deliberate dereliction on the part of the State..The Director, School Education had taken the defence that the order was not served on him promptly. Justice Singh noted in his order that the office of the Chief Standing Counsel, and not the Director was at fault for the same. It was noted that Tripathi is not taking due care to assist the Court in prompt disposal of litigation..The judge further stated in his order that Tripathi had engaged three juniors in private practice, and that this was getting in the way of his duties as CSC. Moreover, the judge alleged that having been engaged as a counsel for a number of corporations, Tripathi was unable to function efficiently as CSC. Thus, a copy of the order was directed to be sent to the Principal Secretary, Law of the state government to take appropriate action..The Division Bench noted that the procedural delay in this case was not so alarming as to prompt the Court to pass such an order, especially since the writ petition was only admitted a month before. It was also held that the CSC could not be held responsible for the delayed communication. Further, the observations made by the Court as to the CSC’s private practice were based on “assumption and presumption of the learned Single Judge”, the Division Bench held..Moreover, the Court held that which lawyer the state employs to represent it was not a matter of concern for the courts..“…the choice of counsel by the litigant cannot be an issue which is to be dealt with by the Courts, as it does not constitute to be the concern of the learned Single Judge as to the manner in which the administration of justice has to be catered by the Courts…If the State its employer feels that the appellant can function as Chief Standing Counsel while continuing to be as the counsel with the University or the other Corporations, it would be an exclusive choice of the State, for which the learned Single Judge, atleast, has got nothing to do to sit in advisory capacity to State…”.Therefore, the adverse remarks made against Tripathi in the order were set aside..Order dated May 8.In another matter, the Additional Chief Standing Counsel had sought permission to withdraw a delay condonation application and also s counter affidavit as they contained defects. After permitting the same, Justice Singh proceeded once again to adversely comment on the functioning of the office of the Chief Standing Counsel..“This Court on several occasions noticed that working of the State Law Officer is not proper and many times this Court suggested learned Advocate General and learned Chief Standing Counsel of the State to improve in the working of the State Law Officers, but there is no improvement in the working of the State Law Officers. It appears to this Court that State Law Officers are not safeguarding the interest of the State properly….…But, instead of sincerely implementing the suggestion of this Court, he has decided not to appear before this Court. He only used to appear before me along with the Advocate General when I sit in Division Bench. Act of Mr. Paresh Tripathi, C.S.C. is not only derogatory but against the interest of the State Government…”.Represented by Advocate CK Sharma, the appeal filed by Tripathi contends that the order is a consequence of a personal annoyance of Justice Singh against him. The Division Bench stated in its order,.“It should not be a concern of the Court as to how the office of the Chief Standing Counsel allocates the case, how he regulates the functioning of the State Law Officers, and as to how the responsibilities could be fixed on them in their functioning….…we are of the view that the responsibility of preparation of the counter affidavit is not personally discharged by the Chief Standing Counsel in each and every case, its rather the Law Officers entrusted with the work, who drafts the counter affidavit based on the instructions of the authorities and particulars supplied by them….…We are of the view that at least court cannot force a counsel to mandatorily appear before it, when the party who is to be represented has been presented by other State Law Officer…”.Order dated May 29.In this case, the Additional Director of Secondary Education in a district made a statement before Justice Singh that the draft of a counter affidavit was prepared by Tripathi, and that the same was not sworn on the basis of a record in support thereto..This prompted the judge to rule that the swearing was in violation of Order 19 Rule 6 of the Code of Civil Procedure, 1908. In response to this, the Division Bench held,.“We are of the view that the Court of learned Single Judge had lost sight of the fact that he was sitting over in a writ jurisdiction under Article 226 of the Constitution of India dealing with the service matter, in which strict principles/provisions of Code of Civil Procedure, 1908, have not been made applicable; only the wider principles of the same would apply…in the writ jurisdiction, there is no specified recognized format of pleading and verification, which is required to be strictly and mandatorily adhered to by the parties to the proceedings…”.The Court further noted that the counsel who drafted the affidavit cannot be held responsible for its contents. Even if Order 19 were to apply, the deponent would be responsible for lacunae in the affidavit. The Division Bench went on to note,.“There is a practical aspect of the controversy also, which the learned Single Judge should have thought of as he also hails from same fraternity of advocates, prior to His elevation to Bench, which the Advocates, as a professional of the Courts also face and he has to acknowledge the fact that normally in profession these types of minor errors do creep in…Yet again, we are constrained to observe that such type of an inference as had been drawn by learned Single Judge has had to be made cautiously and not by preponderance as it effects a counsel’s integrity and prestige, effecting his career…”.The Bench also noted that judges are not experts to decide the competence of advocates..“We also think that having pondered a lot that even we as Judges are not expected to act as an expert to assess the individual competence of an Advocate in the absence of any expertise, as it may at times such assessment be influenced by personal bias of a Judge towards an individual, as reflected herein, which has chanced recurringly in number of cases against the appellant….…Hence, we hold that at least the Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and that too reflecting the same in his judicial verdicts / orders and obviously when it will mar and tarnish his professional career.”.Order dated May 24.In this case, Justice Singh took the prima facie view that the state education department was adopting a pick and choose policy in transferring Assistant Teachers. The judge also observed that the Additional Director was withholding some statements on instructions from superior officers, and was, therefore, trying to mislead the Court by making false statements..Then, somehow, the blame was shifted to the CSC, with the following observations being made,.“This Court, despite the several requests made to the Advocate General and C.S.C. that a particular case be pointed out to a particular lawyer being on behalf of the State may take responsibility of the case, but despite the request of this Court no steps have been taken in this regard..This court has also noticed that Mr. Paresh Tripathi, C.S.C., who appears to use in other Courts is deliberately avoiding this Court even in those cases who has filed the counter affidavit. This Court has also noticed that Mr. Paresh Tripathi, C.S.C. is not working to save the interest of State Government.”.Once again, attributing similar reasons enumerated in previous orders, the Court was of the view that these observations were uncalled for, and set aside the same..Justice Singh has rubbed the Bar the wrong way on a number of occasions now. Over the course of this year, he has issued a contempt notice against Tripathi, stopped short of doing the same to the Advocate General, called for the designation of Senior Advocate to be stripped from him, and imposed costs on lawyers appearing before him..Read the orders:
Even as the Bar has been raising concerns on the conduct of a sitting judge, the Uttarakhand High Court has reined in one of its own..A Division Bench of the Uttarakhand High Court has set aside adverse observations made in a number of orders passed by Justice Lok Pal Singh against a law officer. In one of the orders, the Division Bench noted that the attitude of Justice Singh smacks of malice..“…we feel when the learned Single Judge consistently passes an order recurringly in all proceedings directing the client, who has engaged the services of a professional for taking an action against his counsel, it does smacks malice.”.The issue pertains to four orders passed by Justice Singh over the course of April and May this year. In the orders, the judge repeatedly made adverse observations against Chief Standing Counsel for the State of Uttarakhand, Paresh Tripathi..The orders – passed on April 26, May 8, May 24 and May 29 – follow a common blueprint. The judge has observed that Tripathi is not serving the interests of the state government, is not allocating cases to law officers efficiently, and is deliberately refusing to appear before him. Hence, in each of the orders, Justice Singh has directed the State Law Department to take action against Tripathi..An aggrieved Tripathi filed a Special Appeal against each of these four orders, and the Division Bench of Justices Rajiv Sharma and Sharad Kumar Sharma found it appropriate to set aside the observations made by Justice Singh against the Chief Standing Counsel..Order dated April 26.In a case related to equal pay for equal work for lab assistants in schools, the State was required to file a counter affidavit by April 19. On finding that the same was not filed, the Court came to the conclusion that it was deliberate dereliction on the part of the State..The Director, School Education had taken the defence that the order was not served on him promptly. Justice Singh noted in his order that the office of the Chief Standing Counsel, and not the Director was at fault for the same. It was noted that Tripathi is not taking due care to assist the Court in prompt disposal of litigation..The judge further stated in his order that Tripathi had engaged three juniors in private practice, and that this was getting in the way of his duties as CSC. Moreover, the judge alleged that having been engaged as a counsel for a number of corporations, Tripathi was unable to function efficiently as CSC. Thus, a copy of the order was directed to be sent to the Principal Secretary, Law of the state government to take appropriate action..The Division Bench noted that the procedural delay in this case was not so alarming as to prompt the Court to pass such an order, especially since the writ petition was only admitted a month before. It was also held that the CSC could not be held responsible for the delayed communication. Further, the observations made by the Court as to the CSC’s private practice were based on “assumption and presumption of the learned Single Judge”, the Division Bench held..Moreover, the Court held that which lawyer the state employs to represent it was not a matter of concern for the courts..“…the choice of counsel by the litigant cannot be an issue which is to be dealt with by the Courts, as it does not constitute to be the concern of the learned Single Judge as to the manner in which the administration of justice has to be catered by the Courts…If the State its employer feels that the appellant can function as Chief Standing Counsel while continuing to be as the counsel with the University or the other Corporations, it would be an exclusive choice of the State, for which the learned Single Judge, atleast, has got nothing to do to sit in advisory capacity to State…”.Therefore, the adverse remarks made against Tripathi in the order were set aside..Order dated May 8.In another matter, the Additional Chief Standing Counsel had sought permission to withdraw a delay condonation application and also s counter affidavit as they contained defects. After permitting the same, Justice Singh proceeded once again to adversely comment on the functioning of the office of the Chief Standing Counsel..“This Court on several occasions noticed that working of the State Law Officer is not proper and many times this Court suggested learned Advocate General and learned Chief Standing Counsel of the State to improve in the working of the State Law Officers, but there is no improvement in the working of the State Law Officers. It appears to this Court that State Law Officers are not safeguarding the interest of the State properly….…But, instead of sincerely implementing the suggestion of this Court, he has decided not to appear before this Court. He only used to appear before me along with the Advocate General when I sit in Division Bench. Act of Mr. Paresh Tripathi, C.S.C. is not only derogatory but against the interest of the State Government…”.Represented by Advocate CK Sharma, the appeal filed by Tripathi contends that the order is a consequence of a personal annoyance of Justice Singh against him. The Division Bench stated in its order,.“It should not be a concern of the Court as to how the office of the Chief Standing Counsel allocates the case, how he regulates the functioning of the State Law Officers, and as to how the responsibilities could be fixed on them in their functioning….…we are of the view that the responsibility of preparation of the counter affidavit is not personally discharged by the Chief Standing Counsel in each and every case, its rather the Law Officers entrusted with the work, who drafts the counter affidavit based on the instructions of the authorities and particulars supplied by them….…We are of the view that at least court cannot force a counsel to mandatorily appear before it, when the party who is to be represented has been presented by other State Law Officer…”.Order dated May 29.In this case, the Additional Director of Secondary Education in a district made a statement before Justice Singh that the draft of a counter affidavit was prepared by Tripathi, and that the same was not sworn on the basis of a record in support thereto..This prompted the judge to rule that the swearing was in violation of Order 19 Rule 6 of the Code of Civil Procedure, 1908. In response to this, the Division Bench held,.“We are of the view that the Court of learned Single Judge had lost sight of the fact that he was sitting over in a writ jurisdiction under Article 226 of the Constitution of India dealing with the service matter, in which strict principles/provisions of Code of Civil Procedure, 1908, have not been made applicable; only the wider principles of the same would apply…in the writ jurisdiction, there is no specified recognized format of pleading and verification, which is required to be strictly and mandatorily adhered to by the parties to the proceedings…”.The Court further noted that the counsel who drafted the affidavit cannot be held responsible for its contents. Even if Order 19 were to apply, the deponent would be responsible for lacunae in the affidavit. The Division Bench went on to note,.“There is a practical aspect of the controversy also, which the learned Single Judge should have thought of as he also hails from same fraternity of advocates, prior to His elevation to Bench, which the Advocates, as a professional of the Courts also face and he has to acknowledge the fact that normally in profession these types of minor errors do creep in…Yet again, we are constrained to observe that such type of an inference as had been drawn by learned Single Judge has had to be made cautiously and not by preponderance as it effects a counsel’s integrity and prestige, effecting his career…”.The Bench also noted that judges are not experts to decide the competence of advocates..“We also think that having pondered a lot that even we as Judges are not expected to act as an expert to assess the individual competence of an Advocate in the absence of any expertise, as it may at times such assessment be influenced by personal bias of a Judge towards an individual, as reflected herein, which has chanced recurringly in number of cases against the appellant….…Hence, we hold that at least the Courts should refrain and exercise self restraint in assessing the competence of individual Advocate and that too reflecting the same in his judicial verdicts / orders and obviously when it will mar and tarnish his professional career.”.Order dated May 24.In this case, Justice Singh took the prima facie view that the state education department was adopting a pick and choose policy in transferring Assistant Teachers. The judge also observed that the Additional Director was withholding some statements on instructions from superior officers, and was, therefore, trying to mislead the Court by making false statements..Then, somehow, the blame was shifted to the CSC, with the following observations being made,.“This Court, despite the several requests made to the Advocate General and C.S.C. that a particular case be pointed out to a particular lawyer being on behalf of the State may take responsibility of the case, but despite the request of this Court no steps have been taken in this regard..This court has also noticed that Mr. Paresh Tripathi, C.S.C., who appears to use in other Courts is deliberately avoiding this Court even in those cases who has filed the counter affidavit. This Court has also noticed that Mr. Paresh Tripathi, C.S.C. is not working to save the interest of State Government.”.Once again, attributing similar reasons enumerated in previous orders, the Court was of the view that these observations were uncalled for, and set aside the same..Justice Singh has rubbed the Bar the wrong way on a number of occasions now. Over the course of this year, he has issued a contempt notice against Tripathi, stopped short of doing the same to the Advocate General, called for the designation of Senior Advocate to be stripped from him, and imposed costs on lawyers appearing before him..Read the orders:
