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2014 DIGILAW 1569 (PNJ)

Harjot Singh v. Bar Council of Punjab & Haryana

2014-11-17

K.KANNAN

body2014
JUDGMENT Mr. K. Kannan, J.: - Petitioner who is a member of District Bar Association, Ludhiana has a grievance that he was expelled by the alleged expulsion of the District Bar Association in a meeting held on 16.4.2014. Expulsion spelt out that he will not exercise any right as a member of the District Bar Association for a period of one year commencing from 16.4.2014 and that would also debar him from any voting right or right to seek election to any office of District Bar Association, Ludhiana for a period of five years commencing from 16.4.2014. 2. The precipitate action of the association came at a situation when the petitioner was filing his nomination before the Returning Officer for contesting the post of President through his application on 10.4.2014. The Returning Officer served a letter to the President on 12.4.2014 referring to the District Bar Association (Constitution and Registration) Rules 2009 (for short ‘the Rules 2009’) that disqualifies a person from contesting election to the post of office bearer of the Administration if he had not fulfilled 5 years of practice. The Returning Officer exhorted the President to secure the concurrence of the Bar Council to inform whether the Rules 2009 were applicable or not. The Bar Council, it appears, informed that Provision 9 of the Rules 2009, required atleast 5 years experience for the post of President of regular and active practice and atleast three years experience for the Secretary. There is a contention that Rules 2009 are not applicable to the petitioner and the petitioner would refer to the Constitution of the District Bar Association, Ludhiana which is a written instrument as governing the mutual rights of the members of the Association. 3. I may not find that the question whether the petitioner could contest in the election to the post of a President or not is relevant issue in the present petition. It was merely an incident that culminated in the reference to his expulsion that gives a cause for filing the writ petition and to our benefit will be relevant notice regarding an urgent general meeting, the resolution passed and the procedures adopted for expulsion. 4. The notice of meeting was said to have been issued on 16.4.2014 at the Bar conference hall and was said to be pasted at the hall. 4. The notice of meeting was said to have been issued on 16.4.2014 at the Bar conference hall and was said to be pasted at the hall. Meeting was held at 3.00 p.m. and the same was presided over by the President. The relevant extract reads as under: - 1. Through voice note that Sh. Harjot Singh s/o Sham Singh enrolment No. P/785/2010 has been debarred from the Membership of District Bar Association, Ludhiana for the period of one year from today i.e. 16.4.2014 consequently. He shall not be able to exercise any right as Member of District Bar Association Ludhiana for the said period. 2. Resolved further that the above named Sh. Harjot Singh is debarred from any voting right or right to seek election to any office or District Bar Association, Ludhiana for a period of five years from today i.e. 16.4.2014. 5. The petitioner states that this resolution was illegal and against the tenor of the procedure laid down in the Constitution of District Bar Association, Ludhiana. The Returning Officer is also cited as the 3rd respondent. 6. The ground taken by the respondents in that writ petition is not maintainable since the Bar Association is neither State nor its instrumentality. Further contention is that the petitioner conducted himself in a manner unbecoming of member of the Association and entered into an ugly physical fight by assaulting the Returning Officer. The photographs which are clipped from the video footage and CD containing the depiction of the petitioner are filed as annexures along with the reply. The President of the District Bar Association would therefore, state that the decision to expel the petitioner was on a voice vote and more than two thousand members were present and the expulsion made shall not be taken lightly. 7. On the issue of jurisdiction, counsel would refer me a judgment of Kerala High Court in V. Abdul Azeez and others vs. The Alapuzha Bar Association and another reported as AIR 1993 Kerala 201. The petitioners in that writ petition had challenged the expulsion orders issued by the Bar Association. They had been enrolled as members but expelled on the ground that they were all retired personnel and they could not continue to be members with right to practice. The petitioners in that writ petition had challenged the expulsion orders issued by the Bar Association. They had been enrolled as members but expelled on the ground that they were all retired personnel and they could not continue to be members with right to practice. The Court was considering the applicability of the Article 226 of the Constitution of India to the relief framed and its reason that members who could not participate in the Advocates Welfare Scheme would lose the right to affix the necessary stamps on vakaltnama and consequently will also lose the right to practice. The Court held the expulsion to be violative of the fundamental rights of the Constitution of India namely of the freedom of carrying on with profession of one’s choice. While adverting to the contention that the District Bar Association is not a State instrumentality, the Court held that it was entrusted with certain duties of having to recognize the person who could practice and who could be members of the District Bar Association. The Court was examining the decision of the Hon’ble Supreme Court in Shri Anadi Mukta Sadguru S.M.V.S.J.N.S Trust vs. V.R. Rudani, AIR 1989 SC 1607 , where the Supreme Court rejected the plea of maintainability of a writ petition for granting the relief against the management which was a private body. The Court held that on the principle of master and servant there was a duty of common law to reward the services of a person who is employed and if there was a breach of that principle, the intervention through the writ petition would become possible. 8. The Counsel appearing on behalf of the respondents would state that by removing him from membership it was never the intention to thwart his practice and his enrollment in the Bar Council governs the right to practice which has not been in any way scuttled by the Administration of the District Bar Association. As I record the contention of the respondents that they have no objection to the petitioner practicing in the District Court at Ludhiana nor any other place even if not being a member I suspect that such a course cannot be merely settled at a point whether respondents have no objection in that regard. As I record the contention of the respondents that they have no objection to the petitioner practicing in the District Court at Ludhiana nor any other place even if not being a member I suspect that such a course cannot be merely settled at a point whether respondents have no objection in that regard. By any conduct of the respondents, the petitioner cannot be exposed to an indignity or a prospect of being called any way as not competent to practice. The Bar Council of India Advocates Welfare Scheme of 1998 was brought through a resolution of the Bar Council of India and the subscription is required to be paid by every member of the Bar who is enrolled as an Advocate with the State Bar Council. The membership to the Scheme and the benefits that flows from it become complete and enable a person to make a subscription only after a certificate of the Bar Association is issued that the applicant is a member of the Association. 9. Para 1 (iii) of the 1998 Scheme requires that an application shall be submitted in Form ‘A’. Form ‘A’ prescribes the certificate and the seal and signature of the President of the Association that the person who makes a subscription is a member of the District Bar Association. The conjoint reading of the Rules in the Scheme and the Form is that a person who is not a member of the District Bar Association cannot obtain right to subscribe for the welfare fund and consequently will lose the right to practice and also the benefit under the Scheme. The same Scheme makes compulsory that every member of the District Bar Association who files a vakaltnama shall affix a stamp issued by the State Bar Council. The member who cannot contribute to the fund cannot affix the stamp on the vakaltnama and to that extent they would surely involve the aspect of disqualification. 10. Counsel for respondent submits that the welfare fund stamps can be picked up any where from any Bar Association and details of membership of any Bar Association is never asked. The member who cannot contribute to the fund cannot affix the stamp on the vakaltnama and to that extent they would surely involve the aspect of disqualification. 10. Counsel for respondent submits that the welfare fund stamps can be picked up any where from any Bar Association and details of membership of any Bar Association is never asked. This action could be a matter of concession but on a strict application of the relevant rules it would follow that if the petitioner’s appearance in Court is that to challenge, it would fail the test and the concession by a Bar Association President cannot come to his rescue. I cannot allow for the Statue of a person to practise to be kept in tenterhooks. Counsel states that the Bar will have no opposition to the petitioner appearing in the Court. The prospect is disqualification incidentally has been the basis for the reasoning adopted by the Kerala High Court in V. Abdul Azeez’s case (supra) for annulling the reputation. I therefore, hold that the writ petition is maintainable. 11. Expulsion from membership is contemplated in Clause 13 of the Constitution of District Bar Association. The District Bar Association does not appear to be a registered body but as an association that has prepared a charter I will allow for the clauses to be operative and binding upon all the members as a multi-lateral contract. The clauses are required to be therefore, reproduced to see whether there has been observance of a requirement spelt out in the said clauses: - 13. Every member shall have one vote on every motion made at any general meeting and all motions shall in case of division be determined by majority votes provided that no resolution relating to variation or addition to or cancellation of any these rules or relating to the conduct or character of or expulsion of any member, shall be deemed to be carried unless not less 3/4th of the members present and majority of the members of the Association on roll shall vote for the same. In case of division, where votes for and against are equal, the chairman shall have casting vote. 14. One-fourth members on the rolls of the Association shall constitute quorum for the General meeting and for an adjourned meeting, no quorum shall be necessary unless expressly required by any of the rules. 12. In case of division, where votes for and against are equal, the chairman shall have casting vote. 14. One-fourth members on the rolls of the Association shall constitute quorum for the General meeting and for an adjourned meeting, no quorum shall be necessary unless expressly required by any of the rules. 12. The clause would require that no resolution could be carried through unless 3/4th of the members present and majority of the members on roll shall vote for the same. The quorum of the members shall be 1/4th. When the petitioner contends the challenge to the validity of the order of expulsion, one would expect the association to give the details of the total number of persons who were under rolls. No details have been supplied by the respondents about the total number of members nor actual number of persons present at the meeting. On the other hand, statement is made that more than 2000 persons attended and the counsel would plead that it is customary that meetings are held after the notice is affixed on the notice board and the decision carried through a voice vote. I cannot accept the argument that there is any custom which is possible when there are clearly provided regulations that ought to govern the conduct. The Association calls foul to the petitioner’s conduct. Such act can expose itself to the ignominy of being painted by the same brush of indignity. A visit of a dignitary to the association or decision for some celebration could be on the bonhomie of all the members and may required no particular observance of notice to the members. They could hardly be any reason that anyone to resist or call to question such decisions or celebrations. If on the other hand, a decision to expel a member is made, it is no cause for a celebration for any one. Atleast not to the member who is expelled. It is a painful incident and it must be carried through with such dignity as situation might demand. As inglorious as the act of the petitioner who was alleged to have indulged in any physical assault on another person. The associative manner of carrying through the resolutions of expulsion was grossly imperfect. The decision to expel cannot be legally supported. The impugned resolution is quashed. The petitioner is restored to be a member of the association. 13. As inglorious as the act of the petitioner who was alleged to have indulged in any physical assault on another person. The associative manner of carrying through the resolutions of expulsion was grossly imperfect. The decision to expel cannot be legally supported. The impugned resolution is quashed. The petitioner is restored to be a member of the association. 13. The writ petition is allowed without costs. ---------0.B.S.0------------