| SooperKanoon Citation | sooperkanoon.com/686951 |
| Subject | Constitution |
| Court | Delhi High Court |
| Decided On | Aug-07-1998 |
| Case Number | C.W.P. No. 3340/98 and C.M.No. 7287/98 |
| Judge | Anil Dev Singh, J. |
| Reported in | 1998VIIAD(Delhi)345; AIR1998Delhi111; 1998(46)DRJ656 |
| Acts | Advocate Act, 1961 - Sections 5; Bar Council of Delhi Rules, 1963 - Rules 36, 36A, 36(C), 36(D), 37, 37A, 44, 46, 47A, 48, 49, 52, 126, 127 and 129; Constitution of India - Article 226; Telegraph Act, 1885; Evidence Act, 1872 |
| Appellant | Sanjay JaIn and Another |
| Respondent | Bar Council of Delhi and Others |
| Appellant Advocate | Mr. Arun Jaitley, Sr. Adv. and; Mr. Rakesh Tiku, Adv |
| Respondent Advocate | Mr. R.K. Anand, Sr. Adv. and ; Mr. Arun Birbal, Adv. |
Anil Dev Singh, J.
1. This is a writ petition challenging -
(1) the removal of the first petitioner as the Honorary Secretary of the Bar Council of Delhi and installation of Shri Surya Prakash Khatri in his place vide resolution dated July 17, 1998 adopted by fourteen members of the Bar Council of Delhi by circulation.
(2) the requisition of an emergent meeting of the Bar Council of Delhi for July 22, 1998 at 4.00 P.M. to consider a resolution for dissolving various Committees, namely, Library Committee, Rules Committee Executive Committee, Enrolment Committee, Indigent and Disabled Lawyers Committee, Disciplinary Committee-1, Disciplinary Committee-2, Disciplinary Committee-3, Bar Council of India Advisory Welfare Committee, Pre-enrolment Committee, and Building Committee; and
(3) the notice dated July 18, 1998 issued by Shri Surya Prakash Khatri announcing the fixation of the meeting of the Enrolment Committee of the Bar Council of Delhi for July 20, 1998 at 3.00 P.M.
2. The facts giving rise to the petition are as follows:-
3. The petitioner and respondents 2 to 24 are the members of the first respondent the Bar Council of Delhi which is a statutory body set up under section 5 of the Advocates Act, 1961. The first petitioner till recently was functioning as the Honorary Secretary of the Bar Council of Delhi. The second petitioner is an elected member of the Enrolment Committee of the bar Council of Delhi. The first respondent Bar Council of Delhi, is a statutory body set up under section 5 of the Advocates Act, 1961.
4. On March 20, 1998 elections to the Bar Council of Delhi were held by the Special Committee appointed by the Supreme Court of India. Petitioners and respondents 2 to 24 were declared elected as the members of the Bar Council of Delhi.
5. On May 21, 1998, the members of the newly constituted Bar Council of Delhi elected the Chairman and vice-Chairman thereof. That apart various members were elected to the several committees of the Bar Council of Delhi. On May 27, 1998 by a resolution of the Bar Council of Delhi adopted by circulation and signed by eighteen members thereof, the first petitioner was appointed as its Honorary Secretary. By a subsequent resolution dated July 17, 1998 adopted by circulation and signed by fourteen members of the Bar Council of Delhi, the first petitioner was removed from the post of Honorary Secretary. By the same resolution Shri Surya Prakash Khatri, a member of the Bar Council of Delhi, was appointed as the Secretary in place of the first petitioner. On the same date few members requisitioned the meeting of the Bar Council of Delhi for July 22, 1998, to consider the following resolutions/agenda:-
'(i) It is hereby resolved that all the Committees including referred to below are hereby dissolved forthwith and the new Committee be constituted at the earliest.
(a) Library Committee
(b) Rules Committee
(c) Enrolment Committee
(d) Executive Committee
(e) Indigent & Disabled Lawyers Committee
(f) Disciplinary Committee-I
(g) Disciplinary Committee-II
(h) Disciplinary Committee-III
(i) Bar Council of India Advocates Welfare Committee
(j) Pre-enrolment Committee
(k) Building Committee.
(ii) For the interim measure S/Shri K.K. Manan, Ramesh Gupta and Jagdev shall discharge the functions of the Enrolment Committee.'
6. On July 18, 1998 Shri Surya Prakash Khatri issued a notice convening a meeting of the Enrolment Committee of the Bar Council of Delhi, even though the above said item No. (ii) of the agenda had yet to be adopted/passed at the meeting of the Bar Council of Delhi slated for July 22, 1998. The petitioners feeling aggrieved of the above said actions have filed the instant petition.
7. The first question that needs determination is whether or not the removal of the first petitioner from the post of Honorary Secretary calls for any interference. At the threshold it needs to be pointed out that the Bar Council of Delhi Rules 1963 (for short 'the Rules'), particularly provisions of Chapter XI, namely, Rules 126, 127, 129 and 130 thereof, do not envisage the appointment of an Honorary Secretary. Rule 126 of the Rules makes provision for appointment of full time employees of the Bar Council of Delhi to carry out its business. This Rule reads as follows:-
'126. The following full-time employees shall be appointed to carry on the business of the Council :
(i) Secretary;
(ii) Accountant;
(iii) Steno-typist;
(iv) Peon;
(v) Employees recommended by the Legal Education Committee to perform the duties connected with that Committee;
(vi) Any other employees as may be considered necessary from time to time.'
8. Thus, Rule 126 of the Rules, inter alia, provides for appointment of a Secretary as a full time employee of the Council. The same position is reiterated in Rule 127 of the Rules which reads as under :-
'127. The Secretary shall be a full-time employee of the Council and should be a Law Graduate.'
9. Rule 129 of the Rules declares that the Secretary shall be the Chief Executive employee of the Council. It also lays down the duties which the Secretary, as an employee of the Council, has to perform. Rule 129 reads as under :-
'129. (1) The Secretary shall be the Chief Executive employee of the Council and shall perform the following duties :
(i) attend meetings of the Council and Committees unless otherwise directed;
(ii) keep records and minutes of the proceedings of the Council and its Committees;
(iii) keep in his custody the property of the Council including its common seal,
(iv) exercise control and supervision over the employees of the Council;
(v) communicate to the Council, its various Committees and the Chairman all matters required to be so communicated under the Act and the Rules;
(vi) deposit monies received on behalf of the Council in the Bank and see to the security of cash in hand;
(vii) convene meetings of the Council and its Committees;
(viii) make available the records of the Council for inspection to its members;
(ix) issue requisite notifications for various purposes as prescribed by the Act and the Rules;
(x) attend the correspondence of the Council; and
(xi) perform such other duties as may be assigned to him by the Council, the Committees, the Chairman and the Vice Chairman.
(2) The Secretary or other employees of the Council shall not divulge, to any person other than a member of the Council, any confidential communications or other information except furnishing such information as may be required in discharge of their official duties.
10. It is noteworthy that the above duties are to be performed by the Secretary who is a full-time employee of the council. The Rules do not envisage of the institution of an Honorary Secretary. thereforee, the duties which are to be performed by the full-time Secretary appointed under Rule 126 of the Rules cannot be carried out by an Honorary Secretary elected/appointed in derogation of the Rules. A Secretary who is an employee of the Council is under a statutory duty imposed by Rule 129(2) of the Rules not to divulge to any person other than a member of the Council, any confidential communication or other information except furnishing such information as may be required in discharge of his official duties. Since an Honorary Secretary is not appointed under the Rules he will not be bound by the provisions of clause (2) of Rule 129 of the Rules. This being so he will be under no statutory obligation to maintain secrecy. He will be an extra statutory authority not bound by the Rules. The provision for termination of the employees including the Secretary from service of the Council has been incorporated in Rule 130 of the Rules. As per this rule, the services of an employee cannot be terminated without giving one month's notice of termination of service or paying one month's salary in lieu thereof. This provision obviously will not be applicable to the first petitioner as he is not a full time paid employee of the first respondent and is not a creature of the statute.
11. Mr. Jaitley, learned senior counsel appearing for the petitioners, urged that though there is no provision for the appointment of an Honorary Secretary, the spirit behind the provisions relating to the election and removal of the Chairman and the Vice-Chairman will be equally applicable to the election and removal of the Honorary Secretary. Elaborating his argument, he submitted that as a Chairman or a Vice-Chairman can be elected on the basis of a simple majority, the same would apply for the election of an Honorary Secretary. He further contended that since two-third of the members taking part in the voting are required for removal of the Chairman or the Vice-Chairman or Member of any of the Committees, the same criterion must be followed for removal of an Honorary Secretary, and in case this is not done it would defeat the spirit behind the provisions. He further canvassed that under section 16 of the General Clauses Act, 1897, inherent power of removal is vested in an authority which has the power to appoint. This section, however, does not apply to an elective office. In support of his submissions he relied upon the decisions of the Division Bench of the Bombay High Court and the Full Bench of the Punjab and Haryana High Court in Hindurao Balwant Patil and Another Vs . Krishnarao Parshuram Patil and Others, : AIR1982Bom216 , and Gram Panchayat Village Bathoi Kala, Patiala Vs . Jagat Ram and Others. , respectively.
12. On the other hand, Shri R.K. Anand, learned senior counsel appearing for the respondents, submitted that the first petitioner having been appointed through the back door, his exit from the same door can not be frowned upon. In support of his submission he referred to the decision of the Supreme Court in State of U.P. Vs . U.P. State Law Officers Association and Others, : [1994]1SCR348 . He also submitted that the power to appoint carries with it the power to dismiss and remove and this principle also applies to the holder of an elective office. Relying on the decision of the Delhi High Court in Bar Council of Delhi v. Bar Council of India, (1975) 2 Delhi 321, he submitted that the provisions of Section 16 of the General Clauses Act are applicable to the instant case and the removal of the first petitioner by majority of the members of the Bar Council of Delhi cannot be found fault with.
13. It is not necessary to examine the respective submissions of the learned counsel for the parties in depth as it is without doubt that the Council has no power to appoint an Honorary Secretary to discharge the function of the full-time Secretary who is the Chief Executive employees of the Council. In the absence of such a power it is not open to the Council to appoint an Honorary Secretary. Since the appointment of the first petitioner was not in conformity with the Rules, it cannot be treated to be subsisting and cannot be protected under Article 226 of the Constitution. Moreover, the impugned resolution dated July 17, 1998 adopted by fourteen members of the Council, whereby Shri Surya Prakash Khatri has been appointed as the honorary Secretary in place of the first petitioner, is not in keeping with the provisions contained in Chapter XI of the Rules for the same reasons which prevail in the case of the First petitioner. Accordingly, his appointment must also be set aside.
14. Learned Senior Counsel appearing on behalf of the respondents submitted that over the years a practice had developed to appoint an Honorary Secretary for discharge of the functions of the Secretary. I have given my anxious consideration to the submission of the learned counsel for the respondents but I am unable to accept the same. A practice not in consonance with the statute cannot be allowed to stand even if it is hallowed by time. A practice must given way to the statutory rule. Before parting with this aspect of the matter it needs to be emphasised that in case the post of Honorary Secretary is tenable under the Rules, the removal of the holder of the post must take place in a meeting of which prior notice is given to him so that he is able to have a say in the matter. Lack of an opportunity to him to participate in the proceedings which culminate in his removal amounts to adopting a procedure which is unfair and unjust and against the democratic functioning of the Bar Council. The decisions like removal of the elected office bearers and expected to be taken in the extraordinary meetings of the Bar Council in pursuance of a resolution of no-confidence so that they have an opportunity to explain why the resolution should not be passed. Such a procedure is implicit in the Rules for the removal of the Chairman, Vice-Chairman or any of the members of the committees of the Bar Council.
15. The next question relates to the legality of the requisition of an emergent meeting of the Bar Council of Delhi to consider the resolution/agenda in regard to the dissolution of the various committees. In order to appreciate and decide the question in its proper perspective it would be necessary to notice the various relevant provisions of Chapter III, V and VI of the Rules. Rule 36 of the Rules provides for election of the Chairman and Vice-Chairman of the Bar Council of Delhi. It requires the election of the Chairman and the Vice-Chairman to be notified in the Official Gazette. After the election is notified the Election Committee has to convene a meeting of the Council for the purpose of electing the Chairman and the Vice-Chairman from amongst its members. The nomination of a candidate for election to the office of Chairmen or Vice-Chairman has to be made in writing by two members and consented to by the candidate and sent to the Secretary so as to reach him not less than seven days before the date of such election. Rule 36(B) of the Rules postulates that in case a candidate nominated for election to the office of the Chairman or Vice-Chairman Wishes to withdraw his candidature, a letter duly signed in that behalf must reach the office of the Council not less than four days from the date of such election. Under Rule 36(C) of the Rules, the Election Committee is required to publish a list of the candidates who have been validly nominated three days prior to the date of such election. Rule 36(D) of the Rules provides that if there is only one candidate each for the office of the Chairman or the Vice-Chairman, such a candidate shall be declared to have been duly elected. Rule 37 of the Rules declares that the election shall be by secret ballot and the candidate polling the largest number shall be declared to have been elected. In case of a tie, however, the decision is by draw of lots and the successful candidate is declared to have been duly elected. According to Rule 37(A), the Chairman and the Vice-Chairman are to hold office, for two years from the date of election subject, however, to the condition that the outgoing Chairman or Vice-Chairman, as the case may be, shall continue to function until the election of his successor takes place.
16. Rule 36(A) makes provision for the removal of the Chairman, Vice-Chairman and Member of any of the Committees of the Bar Council. According to this rule the holder of any of the above offices can only be removed in pursuance of a resolution of no confidence passed against him by two-third of the members taking part in the voting subject to the condition that at least eight members must support the no confidence motion.
17. Moving to Chapter V of the Rules, which deals with the subject of Committees, Rule 44 lists the Various Committees for transacting the busi-ness of the Council. Rule 46 mandates the election to the committees by ballot in the manner provided for the election of the Chairman. Rule 47(A) prescribes the terms of the committees and declares that they shall be constituted for a period of two years from the date of election. Rule 48 also provides for the term of a committee other than an ad-hoc committee and proclaims that it shall continue to be in existence until a new committee has been constituted in its place. Under Rule 49 each committee is required to elect a Chairman from amongst its members.
18. Chapter VII of the Rules deals with the business of the Council and the number of meetings which it is required to hold. Rule 51 lays down that the Council shall meet at least once every two months. Rule 52 requires at least seven days notice in writing along with the agenda proposed to be considered at a meeting of the Council. The agenda is to be given to the members thereof. Rule 54 stipulates the convening of the Council by requisition in writing by not less than seven members of the Council lodged with the Secretary. The Secretary is then required to circulate the requisition amongst the members along with the agenda proposed in the requisition and is to call the meeting on three days notice. Rule 56 provides that the Council shall decide all matters by show of hands. Each member has one vote and in the event of a tie, the Chairman has the casting vote.
19. From a conspectus of the above mentioned rules it is clear that while the election to the post of Chairman, Vice-Chairman and election to any office of the Council including the election of a member(s) of any of the Committees of the Bar Council is by simple majority, the removal there from can take place by two-third majority of the members taking part in the voting. The term of office of the Chairman, Vice-Chairman and Committees is for a period of two years from the dates of election. In the case of the committees, however, they continue to be in existence even after the expiry of two years until new committees have been constituted in their place.
20. There is no rule which talks of supersession of the Committees. Shri R.K. Anand, learned senior counsel for the respondents, submitted that the power to supersede any of the Committees of the Bar Council is found in Rule 54 of the Rules. He further submitted that the supersession can be effected by a simple majority of the members taking part in the voting at the meeting of the Bar Council of Delhi. I have considered the submission of the learned counsel for the respondents, but it seems to me that the submission goes against the spirit and tenor of the Rules. Rule 36A deals with the removal of the Chairman, Vice-Chairman and Members of any of the Committees of the Bar Council. It provides for their removal in pursuance of a resolution of no confidence passed against them by 2/3rd of the members taking part in the voting subject to the further conditions that at least eight members must support the no confidence motion. This rule, significantly, does not talk of supersession of any of the Committees as a whole. It appears to me that the intention behind Rule 36A is that the removal of Chairman, Vice-Chairman and a Member of any of the Committees of the Bar Council should be treated as a serious matter for which a resolution of no confidence ought to be supported by two-third of the members taking part in the voting. Significantly the rule does not permit their removal by a simple majority of members present and voting at the meeting of the Council. If a member of any of the Committees of the Bar Council cannot be removed from office without the support of two-third members taking part in the voting, how can the entire Committee be superseded by a simple majority under Rule 54 of the Rules. This position is also supported by the provisions of Rule 47A which provides that the term of the Committees constituted shall be for a period of two years from the date of election. In order to prevent hiatus rule 48 lays down that a committee other than an ad hoc committee shall continue to be in existence until a new committee is constituted in its place. A reading of both the rules clearly establishes that though the term of a Committee, other than an ad-hoc Committee, may be for two years it shall continue to be in existence until a new committee has taken the place of the previous one. Thus, the life of the Committee cannot be cut short before the expiry of a period of two years from the date of election. The power to supersede any of the Committees of the Bar Council is not contained in Rule 54 of the Rules. Any other construction of Rule 54 will be contrary to the spirit behind the Rules as is exhibited by Rules 36A, 47A and 48 of the Rules.
21. The intention of the Rules appears to be to lend stability to the functioning of the Bar Council so that the work of the bar Council does not suffer due to internal strife among the members. Learned counsel for the respondents submitted that in accordance with the past convention the Committees can be superseded by the Council by a 'simple majority' at any time. He further contended that in any event the internal management of the Council cannot be interfered with by Court in exercise of its powers under Article 226 of the Constitution. It is difficult to accept the contentions of the learned counsel. The question here is of violation of statutory rules. It is well settled that executive conventions cannot override or supplant the statute or rules framed thereunder. It is, however, true that a practice developed under a statute is indicative of the meaning given or ascribed to its words by contemporary opinion and in the case of an ancient statue is an admissible external aid to its construction but at the same time it is well established that the principle of contemporanea expositio is not applicable to recent statutes. The Supreme Court declined to apply the principle to the Telegraph Act, 1885 and the Evidence Act, 1872 in the cases of Senior Electric Inspector Vs . Laxmi Narain Chopra, : [1962]3SCR146 , and Raja Ram Jaiswal v. State of Bihar, AIR 1964 S.C. 838. The Court in respect of a modern statute is not obliged to given weight to prior interpretation of an executive authority. The Supreme Court in M/s. Punjab Traders and others Vs . State of Punjab and Others, : AIR1990SC2300 , dealing with the principle of contemporanea expositio held as follows:-
'Even if it is true that persons who dealt with the statute understood its provisions in a restricted sense, such mistaken construction of the statute did not bind the Court so as to prevent it from giving it its true construction.'
22. thereforee, it cannot be said that in construing a Statue the court is bound to follow the conventions developed by an agency charged with its administration by taking an erroneous view thereof.
23. Having regard to the above discussion I hold and direct as follows:-
1. The appointment of the first petitioner as Honorary Secretary was contrary to the Rules, and thereforee his claim to the said office cannot be sustained. The first petitioner shall no longer be treated as holding the office of the Honorary Secretary.
2. The appointment of the second respondent Shri Surya Prakash Khatri as Honorary Secretary has also not been made in consonance with the Rules. The appointment being bad in law is hereby quashed.
3. Since the appointment of the second respondent Shri Surya Prakash Khatri as Honorary Secretary is bad in law he could not have validly called the meeting of the enrollment Committee under Rule 129(vii) of the Rules before it was even constituted. Accordingly, notice dated July 18, 1998 issued by him is hereby quashed. It is only the Secretary appointed under Rule 126 of the Rules who can convene a meeting of the Council and its Committees. It will be open to the Bar Council of Delhi to appoint a Secretary in accordance with the Rules.
4. The requisition of an emergent meeting of the Bar Council of Delhi vide resolution dated July 17, 1998 circulated on July 18, 1998 to consider the resolution for dissolving various committees of the Bar Council of Delhi being contrary to the Rules is hereby quashed.
24. The petition is disposed of. A copy of this order be given to counsel for the parties.