Dr. Ramjeet Singh Yadav vs Bar Council Of Uttar Pradesh And 4 ...
2017 Latest Caselaw 8248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved
 

 

 
Case :- WRIT - A No. - 37918 of 2017
 

 
Petitioner :- Dr. Ramjeet Singh Yadav
 
Respondent :- Bar Council Of Uttar Pradesh and 4 Others
 
Counsel for Petitioner :- Anoop Trivedi
 
Counsel for Respondent :- Ashutosh Dwivedi, A.K.Singh, Anadi Krishna Narain
 

 
Hon'ble Pankaj Mithal,J.

Hon'ble Irshad Ali,J.

Under challenge in this petition is the order dated 30.7.2017 passed by the then Chairman, Bar Council of Uttar Pradesh, Allahabad (hereinafter referred to as the Bar Council). The petitioner has also made a prayer for declaring the minutes of the meeting of the Bar Council dated 29.7.2017 and the e-mail communication dated 3.8.2017 thereof as null and void. A further prayer has been made for quashing of the charge-sheet served upon him (Annexure - 4 to the petition) and to allow him to continue to function as the Secretary of the Bar Council.

We have heard Sri Shashi Nandan, Senior Counsel and Sri Anoop Trivedi on behalf of the petitioner, Sri Amit Kumar and Sri Pradeep Kumar, learned counsel for the Bar Council and the Special Committee headed by the Advocate General respectively.

The respondents No.3 and 4 are parties by name. We have not considered it appropriate to call upon them to participate in the proceedings in the personal capacity as the matter can be decided even without their assistance specially when no relief has been claimed against them.

Learned counsel for the contesting parties have agreed for final disposal of the writ petition at the stage of admission even in the absence of counter affidavit as the necessary facts can be verified from the record of the Bar Council which is before the Court.

The petitioner was appointed and working as the Secretary of the Bar Council.

The Executive Committee of the Bar Council is said to have passed a resolution on 23.5.2017 that his services be terminated after giving a month's notice as his services are temporary.

On the basis of the aforesaid resolution, the Bar Council appears to have passed a resolution on 29.7.2017 suspending the petitioner and instituting a disciplinary inquiry against him.

The then Chairman of the Bar Council is said to have issued an order dated 30.7.2017 suspending the petitioner and the said order was uploaded on 3.8.2017 on the official website of the Bar Council through e-mail of the then Chairman.

The petitioner in order to assail his suspension contends that the resolution of the Executive Committee dated 23.5.2017 which forms the basis of the resolution of the Bar Council dated 29.7.2017 is without jurisdiction and is nonest in law. The resolution dated 23.5.2017 was annulled by the previous Chairman of the Bar Council vide his order dated 18.6.2017 which was duly approved by the Bar Council in its meeting held on 16.7.2017. Thus, the resolution dated 29.7.2017 is also illegal. In fact, these two resolutions dated 23.5.2017 and 29.7.2017 have not been passed and are non existent in nature. They have been manipulated just to oust the petitioner from the post of Secretary of the Bar Council.

In order to adjudicate the controversy raised in the petition we would first like to place some of the relevant provisions of the Advocates Act, 1961 and the Rules governing the procedure of meetings of the Bar Council and its authorities and then will proceed to consider the validity of the resolution of the Executive Committee dated 23.5.2017, resolution of the Bar Council dated 29.7.2017 and the order dated 30.7.2017 or 3.8.2017.

The Advocates Act, 1961 (hereinafter referred to as the Act) provides for the law relating to legal practitioners and for the constitution of State Bar Councils and All India Bar. Section 3 of the said Act provides for a Bar Council for each State to be called "Bar Council".Section 5 of the Act recognises the Bar Council as a body corporate having a perpetual succession and a common seal, with the power to acquire and hold property, to contract and capable to sue and be sued in its name.

The Bar Council is an elected body and according to Section 8 of the Act the term of its members is 5 years from the date of publication of the result of the election which in a given circumstance can be extended by the Bar Council of India for a period not exceeding six months.

Section 8-A of the Act provides where the election of the Bar Council are not held before the expiry of the 5 years term or extended term the Bar Council of India shall constitute a special committee of three members headed by the Advocate General of the State to discharge the functions of the State Bar Council until it is reconstituted.

The Act also provides for the various committees of the Bar Council including the executive committee. Section 10 of the Act provides that the executive committee shall consist of 5 members to be elected by the Bar Council from amongst its members.

Section 10-A(3) of the Act specifically lays down that the committees other than the disciplinary committee which means the executive committee shall meet at the headquarters of the Bar Council.

The Rules of the Bar Council of Uttar Pradesh (Rules for short) lays down that the Chairman of the Bar Council shall exercise general supervision and control over the affairs of the Bar Council. He shall preside over the meetings of the Bar Council and its executive committee.

The Rules common to all committees of the Bar Council also provide that there shall be a convener for each committee to be elected by the Bar Council and in case it is not so elected by the Bar Council, the Committee itself may elect its convener who shall act as the Chairman of the Committee. The convener is duty bound to preside over the meetings of the committee which shall be called by the Secretary of the Bar Council as per the directions of the Chairman of the council or the convener of the committee.

The said Rules also provide that the Secretary shall give at least 15 days notice for a meeting of the Bar Council and 5 days notice for the meeting of the committee. However, in the case of extraordinary or emergent meeting, the notice period prescribed above would not apply.

Rule 15 of the Rules common to all committees in consonance with Section 10-A of the Act provides for holding the meetings of the executive committee at the headquarter of the Bar Council but carves out an exception for holding a meeting at a place other than headquarters on the recommendation of the Chairman of the Committee with the prior approval of the Bar Council.

Rule 29 of the Rules of the Bar Council of U.P. lays down the duties and functions of the executive committee and it provides that it shall exercise control over the administration of the Bar Council and shall exercise all the powers and duties relating to the executive functions of the Bar Council.

The Bar Council has also framed a set of Rules known as the Uttar Pradesh Bar Council Employees Service Rules, 2004 (hereinafter Service Rules). The said Rules applicable to the Employees/Staff of the Bar Council inter alia provide for the period of probation, confirmation, termination of temporary or confirmed employee, imposition of minor and major penalties, disciplinary proceedings and for the suspension of the employees of the Bar Council.

The argument of the petitioner is that the aforesaid resolutions as well as the order of suspension passed by the then Chairman are tainted with malafidies. The resolution of the Bar Council dated 29.7.2017 based upon the resolution of the Executive Committee dated 23.5.2017 is not only without jurisdiction but is non-existent.

The resolution dated 23.5.2017 of the Executive Committee is Annexure - 13 to the petition. The said resolution has been passed in the meeting of the Executive Committee held on 23.5.2017 at 3.00 P.M. in the regional/camp office of the Bar Council at Darul Shafa Vidhayak Niwas - 2, Bhawan Sankhya - 23, Lucknow. It is said to have been attended by three Members, namely, Sri Abdul Razzak Khan, Sri Abhay Kumar Awasthi and Sri Ajay Kumar Shukla.

The note of the Secretary of the Bar Council appended to it states that only two Members Sri Abdul Razzak Khan and Sri Abhay Kumar Awasthi were present in the aforesaid meeting and had signed the same. The third Member Sri Ajay Kumar Shukla was not present and had not signed it. A query was made to him on phone regarding his presence and signatures and he denied his signatures.

An emergent meeting of the Bar Council was called by the Chairman on 29.07.2017 for which necessary notice dated 26.07.2017 was issued by the petitioner as Secretary of the Bar Council along with agenda. The meeting is said to have been attended by 23 members wherein one of the resolutions passed was to suspend the petitioner and to hold a disciplinary enquiry against him.

In view of the above facts as the petitioner disputed the presence of one of the members of the executive committee in its meeting held on 23.05.2017 and the passing of the resolution regarding his suspension in the meeting of the Bar Council dated 29.07.2017, the Court in order to get the truth illicitated had passed an order on 31.10.2017 directing all the Members of the Bar Council including those of the Executive Committee to submit their separate affidavits before the Registrar General indicating the place where the meetings took place; whether the resolution regarding suspension of the petitioner was passed in their presence and if they are signatories to the above proceedings.

The Registrar General of the High Court on the directions of this court aforesaid deputed Sri Mayank Kumar Jain, Registrar Judicial Selection & Appointment/Seniority to carry out the work assigned under the order dated 31.10.2017 passed by the Court.

Sri Jain has submitted his report dated 10.11.2017 and has produced the affidavit of all the erstwhile members of the Bar Council as submitted before him.

It is contended that the meeting of the executive committee dated 23.05.2017 was attended by two members only and the signatures of the third member Ajay Kumar Shukla on it are doubtful, who in fact had not attended the same.

There is no dispute to the fact that the above meeting of the executive committee was called by the notice issued under the signatures of the petitioner as Secretary Bar Council. The presence of the two members Sri Abdul Razzak Khan and Sri Abhai Kumar Awasthi is not in dispute. The dispute is about the presence of third member Sri Ajay Kumar Shukla.

The original notarised affidavit of Ajay Kumar Shukla, Advocate & member of Bar Council/executive committee of the Bar Council is dated 13th November, 2017. It has been sworn before Sanjay Singh, Notary Civil Court, Lakhimpur Khiri. He has categorically stated in paragraph 6 of the affidavit that he was present in the meeting of the executive committee on 23.05.2017 at Lucknow and all the resolutions therein were passed in his presence. The relevant paragraph of the aforesaid affidavit is reproduced herein below-

"I was present in the executive meeting of Bar Council dated 23.05.2017 held on Bar Council camp office room No.23 block B Darul Shafa Lucknow and all the resolutions were passed in my presence. About this meeting I was informed by Bar Council office Allahabad by mobile in addition to electronic mode of service through email/SMS on 18.05.2017."

The aforesaid affidavit is not disputed rather parties have agreed that the court may consider the affidavits of the members on their face value as they are affidavits of none other than the advocates who are responsible officers of this court.

In view of the aforesaid affidavit there is no room to doubt the presence of the third member Ajay Kumar Shukla and thus the genuineness of the resolution of the executive committee dated 23.05.2017.

According to Rule 21 of the Rules the quorum of three members was complete and there is no apparent illegality in passing the aforesaid resolution.

The next issue with regard to the aforesaid executive committee meeting is if such a meeting could have been held at Lucknow inasmuch as Section 10-A(3) of the Act provides for holding its meetings at the headquarters of the Bar Council.

Section 10-A(3) which is relevant for the above purpose reads as under:-

"The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar Councils."

It, no doubt, lays down that the committees other than the disciplinary committees of the Bar Council shall meet at the headquarters of the Bar Council and the headquarter of the Bar Council in the State of U.P. is at Allahabad, but Rule 15 of the Rules carves out an exception and provides that the meeting of the committees can be held at any other place other than the headquarters on the recommendation of the convener or the Chairman with the prior approval of the Bar Council.

Therefore, a conjoint reading of Section 10-A of the Act along with Rule 15 whose validity has not been questioned, makes it clear that in exceptional circumstances as enumerated in the Rule, the meeting of the executive committee can also be held at a place other than the headquarter of the Bar Council.

It is not the case of the petitioner that the meeting of the executive committee at Lucknow was not called by him on the recommendation of the convener or the Chairman of the committee or that there was no prior approval to it by the Bar Council.

The Secretary of the Bar Council under Rule 10 of the Rules is the person authorised to call for a meeting of the committee as per the directions of the Chairman and to participate therein. The meeting was called by the Secretary himself and therefore, he is estopped from alleging that the meeting was not called at the proper place.

It may also be pertinent to note that though Chairman of the Bar Council is authorised to preside over not only the meetings of the Bar Council but of the executive committee, there is an exception to this Rule. The exception is provided in Rule 6 which lays that the convener of the Committee elected shall also Act as the Chairman of the Committee. Therefore, if the aforesaid meeting of the executive committee was not presided by the Chairman of the Bar Council, it makes no difference as it was presided over by the convener. The petitioner is not alleging that the meeting was invalid for want of proper Chairman or that it was not presided over by the convener in the absence of the Chairman of the Bar Council.

Lastly, the executive committee in its aforesaid meeting has recommended for the termination of the services of the petitioner as Secretary of the Bar Council in view of various kinds of financial irregularities alleged to have been committed by him.

Now the question arises whether the executive committee is competent for making any such recommendation. In this connection, Rule 29 of the Rules is relevant which is quoted below:-

The main duties and functions of the Executive Committees are as follows:-

"(a) It shall exercise general control over the administration of the Bar Council and shall exercise all the Powers and duties relating to the executive functions of the Bar Council.

(b) It shall make recommendations for the staff of the Bar Council except the Secretary and the Deputy Secretary and in respect of that staff it shall have the power to take disciplinary actions in accordance with the rules subject to the sanction of the Bar Council.

(c) It shall exercise general control over the employees of the Bar Council and shall make recommendations regarding the revision of their scales of pay from time to time. It shall also decide all questions relating to the seniority. Promotion, leave gratuity, provident fund and all other allied questions, subject to the final approval of the Bar Council.

(d) It shall have power to sanction and grant expenditure upto Rs.1,000/- over and above the budgeted amount in the financial year which shall be reported to the Bar Council in its next meeting.

(e) It shall prescribe books of accounts, registers, other books and forms to be maintained by the bar council.

(f) If shall periodically examine accounts of the Bar Council and place them before the Bar Council.

(g) It shall prepare and place before the Council Annual Administrative Report and statements of accounts.

(h) It shall arrange for the investment of the fund of the Bar Council subject to the sanction of the Bar Council.

(i) It shall recommend applications to the Bar Council for financial aid."

A reading of the aforesaid Rule specially Sub-Rule (b) demonstrates that the executive committee though has power to make recommendations in respect of the staff of the Bar Council but not in respect of Secretary and the Deputy Secretary. Nonetheless under Sub-Rule (a) as it exercises general control over the administration of the Bar Council and exercises all powers and duties relating to the functions of the Bar Council, the executive committee may not be completely denuded of the power to recommend any action even against the Secretary in discharge of its execution functions.

Apart from this, the Secretary of the Bar Council is the Executive Secretary and an employee of the Bar Council appointed by the Bar Council concerned. The appointing authority of the Secretary of the Bar Council is the Executive Committee. The decisions of the Executive Committee as per Rule 35 of the Rules are supposed to be reported to the Bar Council for necessary action and for consideration in the next meeting. Thus, the resolution of the Executive Committee dated 23.5.2017 which is simply in the nature of the recommendation regarding termination of the services of the Secretary could not have taken the final shape without being acted upon by the Bar Council on consideration in its meeting. The Bar Council could have refused to follow the said recommendation or to treat it as not binding. Therefore, the said resolution of the Executive Committee by itself does not cause prejudice to the petitioner. It is a resolution recommending the termination of the services of the petitioner and not for his suspension, whereas the matter in dispute concerns the suspension of the petitioner pursuant to the resolution of the Bar Council dated 29.7.2017.

The argument that the resolution of the Executive Council dated 23.5.2017 was annulled by the then Chairman vide his letter/order dated 18.6.2017 and the said action of the Chairman was approved by the Bar Council in its meeting held on 16.7.2017 is also of no benefit.

First of all the Chairman has no authority of law under the provisions of the Act and the Rules to either annul, revoke or cancel any resolution of the Executive Committee of the Bar Council. Moreover, it is misconceived to allege that the said action of the then Chairman was approved by the Bar Council it is meeting dated 16.7.2017.

The Agenda as per the record, for the meeting of the Bar Council scheduled for 16.7.2017 do not contain anything with regard to consideration of the aforesaid letter/action of the then Chairman Bar Council. The record of the meeting of the Bar Council dated 16.7.2017 does not contain any resolution which may have approved the above letter of the then Chairman Bar Council rather it only states that the action of the Chairman taken by his order dated 18.6.2017 to dissolve the Executive Committee is approved. There is however no resolution which approves the action of the Chairman annulling the resolution dated 23.5.2017 of the Executive Committee.

The resolution to suspend the petitioner has been passed in the meeting of the Bar Council dated 29.7.2017. It is contended that 11 of the members who attended the said meeting have written a letter on the same day intimating that no such resolution was passed in the meeting in their presence.

This argument of he learned counsel for the petitioner can be tested from the various affidavits of the members who have allegedly attended the meeting. According to register of the meeting of the Bar Council, as seized by Sri Mayank Jain, Registrar (Judicial) (S&A/Seniority) pursuant to the order of the Court dated 30.10.2017, the aforesaid meeting of the Bar Council on 29.07.2017 was attended by the following 23 members and was presided by the Chairman Panchu Ram Maurya:-

1. Sri Panchu Ram Maurya

2. Sri Shrish Kumar Malhotra

3. Balwant Singh

4. Birendra Kumar Srivastava

5. Sri Abdul Rajjak Kha

6. Sri Rohitashv Kumar Agrawal

7. Sri Anil Kumar Bakshi

8. Sri Praveen Kumar Singh

9. Sri Imran Mabood Khan

10. Sri Harishankar Singh

11. Sri Arun Kumar Tripathi

12. Sri Amrendra Nath Singh

13. Sri Shrinath Tripathi

14. Sri Ajay Kumar Shukla

15. Sri Indra Kumar Chaturvedi

16. Sri Ajay Yadav

17. Sri Janki Sharan Pandey

18. Sri Akhlesh Kumar Awasthi

19. Sri Anil Pratap Sigh

20. Smt. Madhulika Yadav

21. Sri Ravi Singh

22. Kunwar Darvesh Singh

23. Sri Paresh Mishra

The said meeting vide one of its resolution states that the Secretary of the Bar Council has committed serious financial irregularities; the Executive Committee in its meeting held on 23.5.2017 has resolved to terminate his services; therefore looking to the gravity of the matter, he is put under suspension and a departmental enquiry headed by Hon'ble A.P. Singh, a former Judge of the High Court is appointed to investigate the irregularities alleged to have been committed by him.

For the sake of convenience the relevant part of the said resolution is reproduced herein below:-

"lfpo MkW0 jkethr flag ;kno }kjk drZO;ksa ds ikyu vkSj _.k forj.k] vksojVkbe forj.k ds foRrh; Hkqxrku esa xaHkhj vfu;ferrk dh x;h gS rFkk dk;Zdkfj.kh lfefr us viuh cSBd fnukad 23-05-2017 esa ikfjr izLrko la0 [email protected] }kjk Hkh lfpo ds dk;ksZa ds izfr ykijokgh ,oa fu;e fo:) dk;Z djus dk nks"kh ik;k gS vkSj lsokP;qr djus dh laLrqfr dh x;h gS] dks xaHkhj fopkjksijkUr fu.kZ; fy;k x;k fd lfpo MkW0 jkethr flag ;kno dks rRdky izHkko ls fuyfEcr djrs gq;s tkWp ;ksftr dh tkrh gS rFkk ekuuh; Jh ,0ih0 flag] U;k;ewfrZ mPp U;k;ky; ¼ls0fu0½ dks tkap vf/kdkjh ds :i esa fu;qDr fd;k tkrk gS] tks rhu lIrkg esa tkWp iw.kZ dj viuh vk[;k nsaxsa vkSj bl chp mUgsa :i;s nks yk[k dk ekuns; dk Hkqxrku Lohd`r fd;k tkrk gS] ftlesa :i;s ipkl gtkj vfxze mUgs ns; gksxk "

The first question is whether any such resolution was actually passed in the meeting.

The meeting is not disputed nor its attendance by the aforesaid 23 members. It was an extra-ordinary emergent meeting and therefore the notice period provided under the Rule 11 of the Rules was not applicable. The said meeting was called under the signatures of the petitioner as Secretary vide notice dated 26.7.2017.

We have perused the personal affidavits filed by the aforesaid members before the Registry of the Court. Most of the members have categorically stated that the emergent meeting of the Bar Council U.P., took place on 29.7.2017 at the headquarter. The attendance register was signed by them and a resolution of suspension of the Secretary was passed in their presence. The resolutions passed in the meeting were confirmed after lunch by majority.

The affidavits of only of the five members, namely, Imran Mabood Khan, Ajai Yadav, Smt. Madhulika Yadav, Hari Shankar Singh and Sri Arun Kumar Tripathi states that in the meeting of the Bar Council held on 29.7.2017 only two resolutions were passed and that there was no resolution regarding any action against the Secretary of the Bar Council.

The above affidavits of the Members of the Bar Council who attended the meeting dated 29.7.2017 clearly demonstrate that except for 5 members out of 23 of others all are of unanimous opinion that in the meeting of the said date the resolution to suspend the petitioner from the post of Secretary was passed in their presence and they have singed the attendance register. This leaves no scope to doubt the validity of the said resolution and it being passed by majority of the Members present and voting. The plea that 11 of the members of the said very date have submitted a letter that no such resolution was passed in their presence is of no consequence in the light of the affidavits on record.

The next contention of learned counsel for the petitioner is that the aforesaid resolution passed in the meeting of the Bar Council is of no use as it is based on the resolution of the Executive Committee dated 23.5.2017.

The argument has been noted just to be rejected for the simple reason that even if the mention of the resolution of the Executive Committee dated 23.5.2017 is deleted from the resolution of the Bar Council dated 29.7.2017, it makes no difference, as in the ultimate analysis a decision was taken to suspend the petitioner and to hold a disciplinary enquiry against him for the alleged financial irregularities.

The commission of the financial irregularities is a serious matter which most of the times entails imposition of the major punishment. Therefore, the resolution of the Bar Council even if treated to be independent to the resolution of the Executive Committee dated 23.5.2017 is not bad in law. Moreover, the resolution of the Executive Committee was for terminating the services of the Secretary whereas the Bar Council resolved to put him under suspension which shows it was an independent resolution.

The other submission that the agenda of the meeting of the Bar Council for 29.07.2017 which was issued along with notice dated 26.7.2017 contains no item with regard to services of the petitioner is also not tenable in law. The perusal of the notice dated 26.7.2017 clearly indicates that one of the agenda was to consider the resolutions passed by the Executive Committee. Thus, the matter with regard to service matter of the petitioner was very much the part of the Agenda. It is in pursuance thereof that not only the resolution of the Executive Committee dated 23.5.2017 recommending the termination of the services of the petitioner was considered and instead of straight away terminating his services it was resolved to institute a departmental enquiry against him and to suspend him in the meantime.

The order dated 30.7.2017 of the Chairman, Bar Council U.P. is actually not an order but a communication to the petitioner that the Bar Council has decided to put him under suspension pending a disciplinary enquiry and that during the period of suspension he would be entitle to the suspension allowance as usual. This communication was also put on the official website of the Bar Council U.P. on 3.8.2017 along with resolution of the Executive Committee. It makes no difference so as to affect the right of the petitioner if it was put on the website through the e.mail ID of the then Chairman, Bar Council U.P. In fact it was not only put on the website but was also published in the newspaper of the same date.

In view of the aforesaid facts and circumstances, we are of the opinion that the meeting of the executive committee of the Bar Council held on 23.05.2017 at Lucknow is not invalid for any reason and that there is no illegality of the nature in making recommendation regarding the services of the petitioner to warrant exercise of discretionary jurisdiction by us.

Thus, in the aforesaid facts and circumstances of the case, we find no error or illegality in the resolution of the Bar Council dated 29.7.2017 by which a departmental enquiry has been instituted against the petitioner and he has been placed under suspension.

However, before closing the issue, we would like to observe that all is not well with the working of the Bar Council. Section 10-A (3) of the Act provides that meetings of the Committees of the Bar Council to be held at the headquarter of the Bar Council except that of disciplinary Committees. We therefore expect that in future all meetings of the Committees invariably be held at the headquarter of the Bar Council and that even the meetings of the disciplinary Committees be held either at the headquarter of the Bar Council or at the place of the residence or practice of the delinquent advocate against whom the matter is under enquiry by the disciplinary Committee and no other place.

The writ petition lacks merit and is dismissed.

The record of the Bar Council be returned.

Order Date :-22.12.2017

Brijesh