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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