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Bar Council Row-Resolution Passed


Chandigarh (Global news)

COPY OF THE RESOLUTION PASSED BY THE BAR COUNCIL OF PUNJAB AND

HARYANA IN ITS EXTRA-ORDINARY/EMERGENT MEETING HELD ON

15.09.2020.


RESOLUTION

The Bar Council of Punjab and Haryana has always strived hard to

maintain the dignity and purity of the Legal Profession. The Bar Council has

always recognized and promoted the autonomy and independence of

democratically elected Bar Associations. Due to the confusion created by

certain Members of the Bar with vested interests it is prudently required to

bring on record the exact factual and legal position for the clarity to the

Hon’ble Advocates whom we all represent.

The Hon’ble High Court vide order dated 01.09.2014 passed in LPA No.

1427 of 2014 took notice of all the anomalies which affected the purity,

fairness, transparency and democratic values in the annual elections of Bar

Associations. In compliance thereof the Bar Council framed “The Bar

Association (Constitution & Registration) Rules 2015, which were approved by

the Bar Council of India on 30.06.2015. The vires of the above Rules were

challenged in CWP no. 24392 of 2015 titled Rakesh Punia Vs. Bar Council of

India and another. The Hon’ble High Court upheld the Rules of 2015 and the

following (extract) was observed in para 42 to 44 of the judgment :-


“42. Based on the aforesaid considerations, we are satisfied that the

State Bar Council is empowered in terms of the above referred provisions

to frame rules which have as their object to bring about uniformity and

transparency in matters relating to the elections of the Bar Associations,

within its jurisdiction. In fact framing of such Rules may be considered an

inevitable necessity to effectuate the broad legislative scheme evidenced

by the Acts and Rules referred to above wherein the Bar Associations


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recognized by the State Bar Council have been assigned a Central role as

also in view of the role and importance of the Bar Associations in the

administration of justice and the imperative noticed and stressed even by

Hon'ble the Supreme Court to ensure that the Associations are truly the

representatives of the Advocates practicing in the Courts. Accordingly we

do not find any merit in the argument of the petitioner that the Rules are

ultra vires being beyond the Rule making power of the State Bar Council.


43. It is also noteworthy, as is stated on behalf of the Bar Council, that

the Rules have been framed after exhaustive consultation with the Bar

Associations in Punjab and Haryana. Before finalizing the Rules a

meeting of the Presidents/ Secretaries/ office Bearers of all the Bar

Associations from Punjab and Haryana was called and it was only after

getting their proposals and suggestions that the rules were framed. The

Rules thus reflect the broad consensus of the representatives of the

advocates on this issue. (ii) Whether the regulation of elections of the Bar

Associations is violative of the rights of the petitioners guaranteed under

Article 19(1)(c) of the Constitution of India?


44. On the issue of whether framing of the Rules to regulate elections

violates the fundamental rights of the petitioners under Article 19(1)(c)

of the Constitution, a complete answer is furnished by the decision of the

Delhi High Court in P.K.Dash's case (supra). In that case, a petition was

filed in the Delhi High Court praying for directions from the Court that the

rules governing allotment of Chambers for advocates in various court

complexes should be amended to restrict eligibility to one chamber in the

entire territory of Delhi, even though they may be members of more than

one bar association. It was also prayed that the Bar Council of Delhi

should ensure introduction of 'One Bar One Vote' throughout all the Bar

Associations in Delhi. Those resisting the introduction of the 'One Bar

One Vote' principle relied on the fundamental right to form associations

under Article 19(1)(c) of the Constitution and the consequential

autonomy to conduct the affairs of the association as per their own

volition.”


In CWP No. 9764 of 2018 again the Rules of 2015 were challenged on the

primary ground that these rules do not apply to the elections of Punjab &


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Haryana High Court Bar Association. It was mainly pleaded that the Punjab and

Haryana High Court Bar Association is a Society registered under Societies

Registration Act 1806 which framed its own Rules and Regulations and all the

Members of the High Court Bar Association constituted the General Body.

Further reliance is placed on the affidavit dated 18.02.2015 filed by Sh. Rakesh

Gupta, the then Chairman of Bar Council, in which he had then stated that

these Rules were framed for the District and Sub Division Bar Associations and

not for High Court Bar Association and further reliance was placed on the

judgment of Hon’ble Madhya Pradesh High Court in WP No. 750-2017 titled as

Bar Association, Chadhoda, District Guna vs. State Bar Council of MP and Anr,

decided on 09.01.2018 wherein it had been held that the Bar Council has no

authority, power or jurisdiction to stay the election process or to interfere with

the election affairs of Bar Association.

The affidavit dated 18.02.2015 of Sh. Rakesh Gupta the then Chairman

of the Bar Council was filed in his personal capacity and it was not mandated

by the General House of the Bar Council. The General House had duly framed

the Rules of 2015 which explicitly includes Punjab and Haryana High Court Bar

Association as well and these were approved by the Bar Council of India on

30.06.2015. The Hon’ble High Court while rejecting this contention of the

petitioner that these Rules are not applicable to the Punjab and Haryana High

Court Bar Association had observed as under on page 14 of the judgment :-


“The Rules 2015 had been framed after following the

properprocedure and after communicating with the then

President, High Court Bar Association and its members, through

various communications mentioned above. The Rules had been

framed to bring uniformity and transparency in matters relating to

the elections of the Bar Associations, within its jurisdiction and

further to mandate introduction of 'One Bar One Vote'.


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Once in Rakesh Punia's case (supra), the Division Bench of this

Court has upheld the power of Bar Council to frame Rules under

the Advocate's Act, 1961, the impugned notices have rightly been

issued to the petitioner under Rules, 2015.

The vires of the Rules have already been challenged and the

Division Bench of this Court dismissed the writ petition, vide Civil

Writ petition No. 24392-2015 titled as Rakesh Punia v. Bar Council

of India another, decided on 21.12.2016 (Annexure A-2). The

object of Rules 2015 is to only bring transparency in the elections.

In Rule 2 (e) of Rules 2015, it has been clearly mentioned that the

Court means all kind of Courts (including Punjab and Haryana High

Court) and shall include the Tribunals, Commissions, Forums and

any other statutory body and authority where the lawyers are

entitled to appear under any provision of law.”

Thus, the controversy with regard to whether these Rules of 2015 are

applicable to the Punjab & Haryana High Court Bar Association or not stood

settled vide the above mentioned decision dated 29.08.2018 passed in CWP

No. 9764 of 2018.

The elections of all the Bar Associations are being held strictly under the

Rules of 2015. The annual elections of the year 2020-21 were scheduled for 3 rd

April 2020. But due to Covid-19 and imposition of restrictions the elections

were deferred by the Bar Council vide resolution dated 31.3.2020. The term of

the Bar Association is fixed for one year under Rule 9 of the Rules of 2015

which can be further extended for one month and after that the

Administration of the Association (as per rules) will vest in Ad-hoc Committee

nominated by the Bar Council. The Bar Council received various complaints

from the members of various Bar Associations to follow the drill of Rule 9 (ibid)

and constitute the Ad-hoc Committees as in many Bar Associations the

incumbent Presidents were/are again contesting the elections and importantly


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after issuance of election programme the office bearers cannot be allowed to

continue thus Ad-hoc Committees be appointed. The Bar Council deeply upon

the issue and after a thorough discussion very conscientiously decided not to

impose Committees, rather replace the present office bearers by

democratically elected office bearers through online elections. The General

House of the Bar Council vide resolution dated 18.06.2020 for the first time

decided to explore the possibility of online elections. It was further resolved to

constitute a Committee to examine and report with regard to the feasibility,

efficacy of online elections through transparent, fair and free process giving a

level playing field to all candidates.

The Committee conducted a series of mock tests to check the efficacy of

online elections. Even a meeting of all the Presidents of Bar Associations of

Punjab, Haryana and Chandigarh was held through video conferencing. Even

Mr. D.P.S. Randhawa President of the High Court Bar Association participated

in the discussion regarding holding of online elections in the above mentioned

meeting. The sample size of the mock testing was increased and finally a final

mock trial was successfully conducted through online mode in the tricity on

13.08.2020, in Punjab on 15.08.2020 and in Haryana on 16.08.2020

respectively. The advocates of Punjab, Haryana and Chandigarh participated

and an overwhelming majority of Advocates voted in favour of online

elections. The Committee considered the response of members of the legal

fraternity and recommended for holding of online elections under the direct

control and supervision of a Hon’ble Judge of the High Court (Retd.).

The Bar Council had sought the amendment in the Rules of 2015 for

holding online elections. The Bar Council of India had subsequently approved

the amendment in the Rules. The vires of amended Rule 9 of The Bar

Association (Constitution and Registration) Rules 2015 was challenged in CWP


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No. 13616 of 2020 which provides that ‘in a situation of War, Pandemic, Act of

God and lockdown, the election would be held through the process of online

voting’. The Division Bench of the Hon’ble High Court has now rejected the

challenge to the vires of Rule 9 (ibid) providing online elections vide order

dated 11.09.2020 dealing with other issues as well.

The Bar Council held video conferencing and interacted with all the

Returning Officers of the State of Punjab, Haryana and Chandigarh.

Finally after carefully exercising due diligence in terms of the series of

steps mentioned above, a notification for holding the annual elections of the

Bar Associations was issued on 09.09.2020. All the Bar Associations in the State

of Punjab, Haryana and Chandigarh are participating in the election process

and have accepted the election programme. Tomorrow i.e. 16.09.2020 is the

date fixed for filing the nomination papers before the concerned Returning

Officer/ Election Committee.

The Chairman of the Bar Council vide letter dated 10.09.2020 humbly

requested the Election Committee headed by Sh. K.S. Sidhu, Sr. Advocate to

hold the elections as per the schedule given in the notification date 9.9.2020.

On 11.09.2020, very shockingly and more sadly a communication was received

from Sh. K.S. Sidhu, Sr. Advocate vide reference no. 4942 HCBA-2020 by using

very intemperate derogatory language. He even went to the extent of bringing

disrepute to the August Institution of Bar Council by stating in his letter that

two Hon’ble Judges already declined the request of Bar Council to hold online

elections without disclosing the source of such information, which is factually

incorrect. The reason given for not holding the elections was that many of the

advocates were voters of the High Court Bar Associations have gone back to

their villages and cities where no internet facility is available and these

members do not possess the android phones. The election Committee has


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shown its inability to contact these advocates. The factual position is that the

final voter list of 3604 members with complete particulars have been sent to

Bar Council before the lockdown. Faced with such a situation, in order to

uphold democratic values and the Rules of 2015, the Chairman of the Bar

Council, constituted a Committee under Rule 9 to conduct the election as per

the schedule given to maintain the mandate of “One Vote One Bar”. On

13.09.2020 at 10.00 AM Sh. K.S. Sidhu and Sh G.S. Bal alongwith Sh. D.P.S.

Randhawa held a meeting with the Chairman and other Members of the Bar

Council in the premises of Law Bhawan. Mr. K.S. Sidhu was again requested to

hold the elections and he was requested to associate himself as co-observer

alongwith the Hon’ble Retired Judge or to engage any other service provider to

hold the online elections denoting that if he has any unfounded apprehension

of any kind. Even, the misinformation was given to the members of the Senior

Advocates Bar Association and the factual position was concealed for the

reasons best known to Mr. Sidhu, even without any authority Mr. Sidhu today

held the General House meeting for which there is no provision in the High

Court Bar Association Rules where he highlighted the affidavit of Sh. Rakesh

Gupta dated 18.02.2015. It is generally expected from a doyen of law like Mr.

Sidhu to know the legal impact of the judgments mentioned above. He is

neither an office bearer or member of the Executive of the High Court Bar

Association to Chair such sham General House Meeting conducted

mischievously in complete derogation of the Punjab & Haryana High Court Bar

Association Rules.


The relevant provisions of the Punjab & Haryana High Court Bar

Association Rules 2018 are reproduced for the perusal of the General House of

the Bar Council. The Rule 12 (1) (d) is reproduced as under:-


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“The term of the above Executive Committee shall be ONE YEAR

commencing from the date of their election and thereafter shall

cease to be members of the Executive Committee. In the event the

election could not be held for any reason after the expiry of the

term of the Executive Committee for any reason whatsoever, then

five Designated Senior Advocates and ten members who have

been members of the Punjab and Haryana High Court Bar

Association, Chandigarh for at least 10 years, named by the

General House will function as the Executive Committee till the

fresh elections are held positively within two months”


Thus, the continuation of the present Executive is contrary to the above

Rules and also immoral more so unethical as Sh. DPS Randhawa is again

contesting the election.


Mr. DPS Randhawa, has been indulging in activities to create a wedge

intended disharmony between the legal fraternity only with a sole self serving

motive to continue in the office of President of the High Court Bar Association.

The clear mandate of the Rule-12(1)(d) of High Court Bar Association Rules

render the entire executive Committee as functus-officio.

The General House of the Punjab and Haryana High Court Bar

Association had appointed an Election Committee consisting of 9 members.

The minutes of the meeting issued by Sh. Rohit Sud, Honorary Secretary has

surprisingly included 7 more persons on his own without the mandate of the

House, which amounts to playing fraud with the mandate of the House and

this is a serious case of misconduct.

A message containing an agenda was circulated through SMS in the

evening on 14.09.2020 for holding a General House meeting on 15.09.2020 at


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12.45 PM with a notice of less than even one day. The SMS as received by

members of the Bar Association is reproduced as under:-


The General House meeting of PHHCBA will be held on 15.09.2020

(Tuesday) at 12:45 PM, near gate no. 4 with regard to below

mention agendas. Members are requested to attend the same by

maintaining guidelines of Covid-19:


Agenda:

1. Regarding the order dated 11.09.2020 passed by the Bar

Council of Punjab and Haryana where by the Election

Committee constituted by the General House of PHHCBA has

been suspended and a new election committee / ad hoc has

appointed by Bar Council arbitrarily to conduct the election

of PHHCBA.

2. Regarding the validity / sanctity for holding elections of the

office bearers of High Court Bar Association by the so called

election committee /adhoc committee appointed by the Bar

Council.

3. Regarding the action to be taken against the candidates /

members who would participate / be a part of the elections

proposed to be conducted by the Bar Council of Punjab and

Haryana.

By


Executive commitee PHHCBA”


The Rule 14 of the High Court Bar Association Rules provides for the

powers and functions of the governing body to hold a meeting of the General

House of the Bar Association. The Rule 14(B) and (C) are reproduced as under:-


“14 (b) :- General Meeting, Annual and Special:- A General Meeting to be

called the Annual General Meeting shall be held on such date and of such


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(of the ) year as the Committee may determine. A special general

Meeting may be held whenever the Committee may consider it desirable

to convene one for the disposal of any business which these rules require

to be transacted as a General Meeting or which the Committee may

deem proper to lay before a General Meeting.

(c) Meeting convened on requisition:- A Special General Meeting shall be

convened by the Committee whenever a requisition for the same shall be

made in manner hereinafter provided:-

i. Any hundred or more members who are not in arrears of

subscription may require the Committee to convene a Special

Meeting. Every such requisition shall be made in writing and shall

state concisely the nature of the business to be laid before the

proposed meeting and the precise terms of every motion which it

is proposed to put to the meeting and shall be dated and signed by

the requisitionists and delivered to the Secretary. The requisition

shall clearly mention the names along with the eligible (eligible ?)

signatures of the members moving the requisition.

ii. The Committee shall within 7 days of the receipt of any such

requisition if the same is found to be in order convene a special

General Meeting for the disposal of the business mentioned

therein: but no business other than that entered in the requisition

shall be considered at such meetings.


iii. That in the case of emergency the President or in his absence the

Vice-President or in the absence of both, four members of the

Executive Committee may further reduce the period of notice

required under this rule. No business other than that entered in the

requisition shall be considered at such a meeting, however, the

Executive is empowered to convene the meeting of the General

House any time without the requisition if the urgency so requires.”

The agenda item No.1 and 2 are to discuss the orders passed by the Bar

Council on 11.09.2020 and validity of holding elections by the Committee

appointed by Bar Council, as such, such meeting cannot be termed as a

General meeting under Rule 14(B) (ibid) for disposal of any business which


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these rules required to be transacted at a General Meeting. To discuss the

agenda items only a special General Meeting under Rule 14 (C) (i) (ibid) can be

called only through a written requisition of at least 100 members of the Bar

Association. Further, under rule 14 (C) (iii), the President, or in his absence the

Vice President or in the absence of both 4 members of the Executive Members.

Once, the entire Executive has become functus officio as provided under Rule

12 (1)(d)(ibid). As such the sham and orchestrated meeting cannot be termed

as a valid meeting.

The most outrageously the so called resolution dated 15.09.2020 issued

by Sh. Rohit Sud, Advocate has passed the following resolution:-

“It was further resolved that the term of the present executive

Committee has already expired, as an interim arrangement, the term

of this very executive Committee is extended till the situation

normalize and the election of New Executive Committee is held by the

Election Committee appointed by the General House of Punjab and

Haryana High Court Bar Association.”

Such an audacious illegality cannot be expected from members of legal

fraternity who are responsible for upholding the Rule of law. The provisions of

Rule 14 (c) (iii) (ibid) provides no business other than that entered in the

requisition shall be considered at such a meeting. The agenda circulated

through SMS by the Executive on 14.09.2020 has no such item for the

consideration of the House. The bogus meeting was attended by handful of

members less than 100. Only four pre-determined persons were allowed to

speak when other members of the Bar Association pressed for formation of ad-

hoc Committee and sought time to address the house. Rohit Sud Advocate

took away the Mic and fled away from the meeting alongwith Mr. DPS

Randhawa, Advocate. The rules of the Bar Association prescribes a specific

procedure for holding various meetings. The members of the Bar are bound to


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follow the drill of these rules and any deviation from the Rules would vitiate

the whole process including holding of the such meeting and render it illegal

and nonest in the eyes of law. It is trite law that the prescribed procedure

provided in the Rules is required to be followed. The reference may be made

to the following decisions:-

(i) Kunwar Pal Singh (dead) by LRs. Vs. State of U.P. and others : (2007)5 SCC

85;

(ii) State of Uttar Pradesh Vs. Singhara Singh and others : AIR 1964 SC 358; and

(iii) Hukam Chand Shyam Lal Vs. Union of India and others : AIR 1976 SC 789.

In the case of Kunwar Pal Singh (supra) the Honb’le Supreme Court has held

that the principle is well settled that where any statutory provision provides a

particular manner for doing a particular act, then, that thing or act must be

done in accordance with the manner prescribed in the Act. Similar

observations are made by the Hon’ble Apex Court in the case of Singhara Singh

(supra) after placing reliance upon the case of Nazir Ahmad Vs. King Emperor :

AIR 1936 Privy Council 253.

The Hon’ble Supreme Court in para 98 of Anuradha Bhasin v. Union of

India 2020(3) SCC 637 has relied upon the ratio of law in Hukam Chand Shyam

Lal (supra) and observed the following :-

“98. We also direct that all the above procedural safeguards, as

elucidated by us, need to be mandatorily followed. In this context, this

Court in the Hukam Chand Shyam Lal case (supra), observed as follows:

"18. It is well-settled that where a power is required to be exercised by a

certain authority in a certain wav, it should be exercised in that manner

or not at all, and all other amodes (sic) of performance are necessarily


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forbidden. It is all the more necessary to observe this rule where power is

of a drastic nature..."

In the so called resolution dated 15.09.2020 circulated by Mr. Rohit Sud under

his signature has proposed to take strict disciplinary action against any

member of the Bar who participates in any manner in the election process

initiated by the Bar Council. The Rule 11 of High Court Bar Associations Rules

provides the quorum for the meeting in which the conduct of any member or

any disciplinary action is proposed, 10% of the total numbers of members of

the Bar are required to be present. The so called bogus meeting held at the

behest of functus officio Executive was not attended by 10% of the total

members of the Bar Association. The prospective candidates to various posts

of the Bar Association are being intimidated with disciplinary action under the

garb of this fictitious resolution dated 15.09.2020 neither it was discussed nor

it was passed and Mr. Rohit Sud is misusing his control over the proceedings

books without any valid authority and he is clearly circumventing the

proceedings of the House to serve his own interest and also of his functus

officio Executive. Once, the procedural prescribed under the Rules is not

followed, the sham meeting as such cannot be termed as validly and legally

held meeting. The so called meeting is hit by the legal maxim “ Debile

fundamentum fallit onus”, meaning thereby that when the foundation falls,

everything falls; and “Sublato fundamento cadit opus”, meaning thereby, in

case a foundation is removed, the superstructure falls. Once, the meeting of

the General house was called in complete derogation of the prescribed

procedure with a less than a days notice, the misreported resolution dated

15.09.2020 also falls flat.


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One of the prospective candidate for the post of Vice President has

made a written complaint against Mr. Rohit Sud for mis-representation and

misreporting of the proceedings of the General House meeting of High Court

Bar Association. The gist of the complaint is reproduced as under:-


“Today a meeting of the advocates was held at the Punjab and

Haryana High Court which has been described as a General House

meeting by the functus officio Executive Committee and the outgoing

Election Committee. I was there and am ready to say that the majority

cried its throats hoarse saying that Ad Hoc Committee should be

constituted whereas the false report published by the functus officio

secretary says that their term has been extended against the rules of our

association. This is false.

The undersigned supports the initiative of the Bar Council in upholding

the democratic traditions of the Bar and this is our hope against the

illegally continuing Executive Committee and an Election Committee

which does not want to hold elections.

Further, I wish to request you to clarify on the atmosphere of fear

that has been created by the functus officio Executive Committee by

openly saying that, “Any member of this Hon’ble Bar, if participates in

any manner whatsoever in so called election process initiated by Bar

Council of Punjab and Haryana shall invite strict disciplinary action by the

Bar Association of Punjab and Haryana High Court, Chandigarh.” It

seems that the functus officio Executive Committee is comparing the Bar

Council with China and participation in the Election Process stalled by the

outgoing Election Committee of the Bar Association and initiated by our

Bar Council as Sedition. This open threat, to my mind, to the hon’ble

Advocates amounts to gross professional misconduct on the part of the

functus officio secretary and the Outgoing Chairman of the Outgoing

Election Committee of the Bar Association. Please take immediate action

to instil confidence in the minds of both the candidates and voters and

protect the democratic process.

The unverified resolution, containing blatant falsehood, as circulated by

the Bar Association on social media is appended below. I reiterate that

there was hardly any unanimity; and the majority was in favour of the


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formation of ad hoc committee. The other resolutions mentioned in the

false report of the functus officio were never even put to vote. You may

verify. Nobody even mentioned resignation of the Committee headed by

Sh. Munish Jolly, advocate. This is a figment of imagination of the

functus officious to perpetuate their hold. Nothing more”


The Bar Council is conscious of the sentiments expressed by the

resolution passed by the Association of Senior Advocates ; acknowledges and

humbly appreciates their concern. The Bar Council was condemned unheard

and the exact factual and legal position was not brought to notice of the

Members of the Association of Senior Advocates. But in view of the

conspicuous situation explained above the Bar Council is compelled to painfully

initiate action against Mr. DPS Randhawa and Sh. Rohit Sud in order to

maintain the dignity of the profession and to enthrone the democratic process

of elections. The Bar Council is bound by the mandate of the Rules of 2015.

In view of such series of misdemeanors and continuous indulgence in

acts which has brought disrepute to the entire legal fraternity, the house has

unanimously resolved to issue show cause notice to Sh. D.P.S. Randhawa,

Advocate and Sh. Rohit Sud Advocate seeking reply within three days as to why

disciplinary proceedings be not initiated under the provisions of Advocates Act

1961 (within 3 days from the receipt of the notice). The office is further

directed to serve notice as resolved above through normal process including

whatsapp and email for their convenience and necessary compliance.


(Ajay Chaudhary) (Karanjit Singh)

Hony Secretary Chairman

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