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1985 DIGILAW 304 (KER)

BAR COUNCIL OF KERALA v. THANKAPPAN PILLAI

1985-10-03

BALAKRISHNA MENON, BHASKARAN NAMBIAR, M.P.MENON, U.L.BHAT, V.SIVARAMAN NAIR

body1985
Judgment :- 1. This original petition under Art.226 of the Constitution of India is by the Bar Council of Kerala to quash the proceedings of the Bar Council of India evidenced by Exts. P1 to P3 and P13. 2. The Bar Council of Kerala is constituted under S.3 of the Advocates Act 1961 (hereinafter referred to as the Act). The Council has 21 members including 20 elected members and the Advocate General Ex Officio. Election to the Bar Council of Kerala was held in July, 1980. The term of Office of the elected members of the Bar Council is for a period of five years from the date of publication of the results of the election. The Ist respondent is one of the members elected to the Bar Council of Kerala. 3. The Bar Council of India is constituted under S.4 of the Act, and its members are the Attornery General of India and the Solicitor-General of India Ex Officio and one member each elected by each State Bar Council from among its members. The term of Office of a member of the Bar Council of India elected by the State Bar Council is for the period for which he holds office as a member of the State Bar Council, subject to the proviso to sub-section (3) that every such member shall continue to hold office until his successor is elected. S.5 of the Act enacts that every Bar Council shall be a body-corporate having perpetual succession and a common seal with power to acquire and hold property and may by the name by which it is known sue and be sued. The functions of the State Bar Councils are enumerated in S.6 of the Act and the functions of the Bar Council of India are enumerated in S.7. S.9 provides for the constitution of disciplinary committees of the State Bar Councils. S. IS empowers the State Bar Councils to make Rules to carry out the purposes of Chapter II of the Act. S.3 to 15 are in Chapter II and relate to the constitution, functions etc. of the Bar Councils of the States as well as the Bar Council of India. 4. The Bar Council of Kerala by its proceedings Ext. P4 dated 12-10-1980 elected the Ist respondent as a member of the Bar Council of India under S.4 (I) (c) of the Act. of the Bar Councils of the States as well as the Bar Council of India. 4. The Bar Council of Kerala by its proceedings Ext. P4 dated 12-10-1980 elected the Ist respondent as a member of the Bar Council of India under S.4 (I) (c) of the Act. His election is for the period for which he holds Office as a member of the State Bar Council as provided for in S.4 (3) (ii) of the Act. The 1st respondent continues to be an elected member of the Bar Council of India representing the Bar Council of Kerala. Long after the election, late Sri. C. J Antony, who was a member of the Bar Council of Kerala, gave a letter Ext. P6 dated 6-3-1983 to the State Bar Council disclosing the circumstances under which the 1st respondent happened to be elected as a member of the Bar Council of India. The letter discloses a secret pact among the Ist respondent and two other candidates at the election, as per which the 1st respondent is to resign and surrender his membership of the Bar Council of India with effect from 31-5-1982 to enable the other two candidates to share the rest of the term between them. Ext. P6 letter alleged that the 1st respondent had in pursuance to the secret pact handed over an undated letter resigning his membership of the Bar Council of India with effect from 31-5-1982. A copy of the letter is produced as Ext. P5. Sri. Antony had forwarded the original of Ext. 15 to the State Bar Council along with his letter Ext P6 for appropriate action to terminate the membership of the Ist respondent in the Bar Council of India. The State Bar Council by its resolution Ext. P7 dated 6-3-1983 resolved that the 1st respondent by his conduct has forfeited the confidence of the Council and the Bar Council of India was requested to take appropriate action to terminate bis membership. His letter of resignation and Ext. P6 letter by late C. J. Antony were forwarded to the Bar Council of India along with the resolution Ext. P7, for appropriate action against the 1st respondent The Secretary of the Bar Council of India by his letter Ext. His letter of resignation and Ext. P6 letter by late C. J. Antony were forwarded to the Bar Council of India along with the resolution Ext. P7, for appropriate action against the 1st respondent The Secretary of the Bar Council of India by his letter Ext. P1 dated 21-6-1983 forwarded the proceedings of the Bar Council of India dated 11th and 12th June 1983 wherein it is stated that the 1st respondent had as per his letter dated 24-4-1983 to the Bar Council of India, stated that a letter of resignation was obtained from him under threat and coercion and by way of abundant caution be is withdrawing the letter of resignation. For the reason of such withdrawal of resignation before its acceptance the State Bar Council was informed that its resolution Ext. P7 has become infructuous. On receipt of Ext PI the State Bar Council as per its resolution Ext. P8 constituted a sub-committee consisting of three of its members to consider the questions referred to therein and to submit a report to the Council. The questions referred to the sub-committee are the following: 'T Whether a vote of no-confidence motion passed by the State Bar Council will disentitle its representative in the Bar Council of India to continue as a member of the Bar Council of India. II. Whether the Bar Council of India was not bound to consider the impact of the no-confidence resolution on the right of the member to continue as a member of the Bar Council of India notwithstanding that the resignation was withdrawn before its acceptance by the Bar Council of India. III. Whether the allegation of Shri K.C. Thankappan Pillai that he was coerced and threatened to write the purported letter of resignation amount to any violation of the professional ethics as a member of such an august body and whether action if any can be taken by the Bar Council, in law." The Sub Committee submitted its report Ext. P9 answering the questions referred to it against the 1st respondent and recommending the initiation of disciplinary proceedings against him for professional misconduct. Ext. P9 report of the Sub Committee was considered by the State Bar Council on 14-8-1983 and Resolutions Nos. 92 and 93 of 1983 were passed by majority vote. Ext. P10 is a copy of the proceedings of the State Bar Council dated 14-8-1983. Resolution Nos. Ext. P9 report of the Sub Committee was considered by the State Bar Council on 14-8-1983 and Resolutions Nos. 92 and 93 of 1983 were passed by majority vote. Ext. P10 is a copy of the proceedings of the State Bar Council dated 14-8-1983. Resolution Nos. 92 and 93 of 1983 are extracted below: Resolution No. 92/1983. In view of the fact that Shri K.C. Thankappan Pillai, the representative of this Council to the Bar Council of India, has forfeited the confidence of this Council it is resolved that Shri K. C. Thankappan Pillai he recalled from the membership of the Bar Council of India with immediate effect. Resolution No. 93/1983. Resolved to take suo mote action against Shri K.C. Thankappan Pillai, member, for professional and other misconduct and call for remarks from him." 5. The State Bar Council had at its meeting held on 12-11-1983 proposed addition of R.10 to 13 in Chapter IV of the Bar Council of Kerala Rules and forwarded the same to the Bar Council of India for its approval. Ext. P12 shows the proposed amendments to the Bar Council of Kerala Rules, by the addition of R.10 to 13 extracted below: "Rule 10:- Any member of the Council may give notice of a no-confidence motion against the office bearers of the Council or the member of the Bar Council of India, to the Secretary of the Council. Rule 11: The Secretary shall fix a date of the meeting giving 15 days clear notice of the no-confidence motion. Rule 12. A vote of no-confidence can be passed only with the support of the 2/3rd members present and voting. On the passing of the vote of no-confidence motion, the office bearer concerned shall not be entitled to continue in office thereafter. Rule 13: On the passing of a vote of no-confidence in the manner aforesaid against a member elected to the Bar Council of India, such member shall cease to be a member thereafter." The State Bar Council at its meeting held on 11-12-1983 passed Resolution No. 148 of 1983 to refer the case of professional or other misconduct against the 1st respondent to the disciplinary committee of the Bar Council under S.35 of the Act. A true copy of the proceedings of the State Bar Council dated 11-12-1983 is produced as Ext. P11 in the original petition. A true copy of the proceedings of the State Bar Council dated 11-12-1983 is produced as Ext. P11 in the original petition. It would appear that the Ist respondent had filed a revision before the Bar Council of India under S.48A of the Act against the resolution of the State Bar Council to refer the case of professional or other misconduct against him to the disciplinary committee. 6. The Bar Council of India resolved as per its Resolution. No. 125 of 1983 that there is no provision in the Act to recall a member of the Bar Council of India and hence no action can be taken on Resolution No. 92 of 1983 of the State Bar Council. This resolution of the Bar Council of India was communicated by its Secretary to the State Bar Council as per his letter Ext. P2 dated 5-10-1983. The Bar Council of India entertained a revision against Ext. P11 proceedings of the State Bar Council and passed an order Ext. P3 dated 22-1-1984 staying all further proceedings in pursuance to Resolution No. 148 of 1983 of the State Bar Council referring the case of the alleged misconduct of the 1st respondent to its disciplinary committee under S.35 of the Act. Ext. P3 proceedings indicate that the Bar Council of India is of the prima facie view that no case of professional or other misconduct had been made out against the 1st respondent. The Bar Council of India by its proceedings Ext. P13 dated 16-2-1984 returned Ext. P12 proposals of the State Bar Council for amendment of its Rules with the following remarks; 1 Bar Council of Kerala:- Addition of Rules10 to 12 in Part IV of the Rules. As regards the provision in the suggested rules relating to vote of no-confidence against the member of the Bar Council of India, since the suggested amendment is in violation of the Act, it cannot be agreed to and hence it is rejected. So far as the provision regarding office bearers of the State Bar Council is concerned, appropriate amendments may be made, to provide for passing of a vote of no-confidence by atleast 2/3 of the total members present and voting. The Council was also not in agreement with the provision enabling one member proposing a vote of no-confidence. The vote of no-confidence should he proposed by atleast 1/2 of the total members. The Council was also not in agreement with the provision enabling one member proposing a vote of no-confidence. The vote of no-confidence should he proposed by atleast 1/2 of the total members. The rules framed by the State Bar Council of Kerala are sent back to the State Council to reconsider in the light of the above observations" The legality and propriety of Ext. PI proceedings of the State Bar Council referring the case of the alleged professional or other misconduct of the Ist respondent to the disciplinary committee under S.35 of the Act is pending in a statutory revision under S.48-A of the Act, before the Bar Council of India. The revisional authority's inherent jurisdiction to pass interim orders of pending revision cannot be questioned. Ext. P3 order of interim stay cannot therefore be interfered with in these proceedings under Art.226 of the Constitution, even though the order of stay has enabled the Ist respondent to continue in office until after the expiry of his term. 7. The 1st respondent was elected, to the State Bar Council in July 1980. As per S.8 of the Act the term of Office of a member elected to the State Bar Council is five years from the date of publication of the results of his election, and as per sub-section (2) an outgoing member shall continue in Office until the publication of the results of the election of his successor. A member elected by the State Bar Council to the Bar Council of India holds Office for the period for which he holds office as a member of the State Bar Council, subject to the proviso that he will be allowed to continue in Office as a member of the Bar Council of India until his successor is elected. (vide S.4(3) of the Act). 8. It is thus clear that the term of office of the Ist respondent as a member of the Bar Council of India has already expired, and his continuance in Office is only for such time as is required to elect his successor. (vide S.4(3) of the Act). 8. It is thus clear that the term of office of the Ist respondent as a member of the Bar Council of India has already expired, and his continuance in Office is only for such time as is required to elect his successor. The election to the Bar Council of Kerala was due in July, 1985 and it is for the said Bar Council to take steps for fresh election of its members and for electing one among them to the Bar Council of India Under these circumstances, we find it also unnecessary to consider the validity of Ext. P2 proceedings of the Bar Council of India. 9. The amendments to the Bar Council of Kerala Rules suggested as per Ext. PI2 cannot however be held to be in violation of the Act as stated by the Bar Council of India in its proceedings Ext. P13. Sub-section (1) of S.15 of the Act empowers the State Bar Council to make rules to carry out the purposes of Chapter II of the Act. Sub-section (2) provides for particular instances with respect to which Rules may be made without prejudice to the generality of the power vested in the Bar Council under sub-section (I). Clause (c) of sub-section (2) relates to the manner of election of the Chairman and the Vice Chairman of the Bar Council, The question whether a rule can be made by the State Bar Council for the removal of its Chairman by a vote of no-confidence came up for decision before a Division Bench of the Delhi High Court in Bar Council of Delhi v. The Bar Council of India (AIR. 1975 Delhi 200). The Division Bench stated at page 203: 11. Quite irrespective of the question whether the office of the Chairman of a State Bar Council is held at pleasure or for the same period for which the Bar Council is elected, the common law relating to the removal of the bolder of an office is that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman." It is further stated: "12. The view expressed by the majority of the Bar Council of India that a rule cannot be made under S.15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result that once elected such Chairman is irremovable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The view of the Bar Council of India is, on the other hand, based on the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an off ice remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council would be removable by a resolution of no-confidence The reason is that such power of removal is inherent in the Bar Council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other pert of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as rules can be made under S.15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not done, they would remain connected with each other even" though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council." 10. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council." 10. The decision of a Constitution Bench of the Supreme Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta (AIR. 1967 SC. 997) referred to by the Delhi High Court, in the aforesaid decision sums up the law in regard to the applicability of Common Law, at page 1007:- "21. To sum up: some of the doctrines of common law of England were administered as the law in the Presidency Towns of Calcutta, Bombay and Madras. The Common Law of England was not adopted in the rest of India. Doubtless some of its principles were embodied in the Statute Law of our country. That apart, in the Muffasil, some principles of common law were invoked by courts on the ground of justice, equity and good conscience. It is, therefore, a question of fact in each case whether any particular branch of the common Law became a part of the law of India or in any particular part thereof". 11. We are of the view that the Rules proposed to be added by amendment are incidental to the purposes of S.3 and 4 of the Advocates Act, and are within the general power conferred on the State Bar Council under S.15(1) of the Act. In this view of the matter, it is not necessary to consider the common law applicable to situations like this. Construing S.58 conferring a general power on the Central Board of Directors to make regulations for the purpose of giving effect to the provisions of the Reserve Bank of India Act, 1934, the Supreme Court in V. T. Khanzode v. Reserve Bank of India (1982(2) SCC. 7) stated at page 18: "15.........It is well-settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power. (See King-Emperor v. Sibnath Banerji and Om Parkash v. Union of India. (AIR. 1971 SC. 771, 773, 774). 7) stated at page 18: "15.........It is well-settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power. (See King-Emperor v. Sibnath Banerji and Om Parkash v. Union of India. (AIR. 1971 SC. 771, 773, 774). Therefore, the ambit of the general power conferred by sub-section (1) cannot be attenuated by limiting it to matters specified in sub-section (2) of S.58 16. S.58(1) of the Act confers power on the Central Board of Directors of the Bank to make regulations in order to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act. It seems to us clear that it is not only convenient but manifestly necessary to provide for the service conditions of the Bank's staff in order to give effect to the provisions of the Act." It is further stated at page 19: "The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood '-whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires". (See Attorney General v. Great Eastern Rly. Co.) (1880) 5 A. C. 473). The Central Board has, therefore, the power to make service regulations under S.58 (1) of the Act." The Bar Council of India was therefore wrong in its view expressed in Ext P13 that the proposed rule providing for a vote of no-confidence against a member of the Bar Council of India elected to the State Bar Council is in violation of the Act and cannot be approved by it. 12. We therefore quash Ext. P13 and direct the 2nd respondent Bar Council of India to re-consider Ext. P12 proposals for the amendment of the Kerala Bar Council Rules for approval under S.15 (3) of the Act. 13. The writ petition is allowed to the above extent. There will be no order as to costs. 12. We therefore quash Ext. P13 and direct the 2nd respondent Bar Council of India to re-consider Ext. P12 proposals for the amendment of the Kerala Bar Council Rules for approval under S.15 (3) of the Act. 13. The writ petition is allowed to the above extent. There will be no order as to costs. Before parting with the case, it is necessary to express our displeasure at the manner in which a "deal" was made between certain persons in the matter of electing the representative of the State Bar Council to the Bar Council of India. It was unfortunate that despite being notified about the deal, the Bar Council of India chose to close the matter on technical grounds. The first respondent who had admittedly gone back on his assurance, and the majority of the State Bar Council whose anxiety was only to enforce the "deal" also did not appear to have brought any honour to the profession by their conduct.