Loading...

Jose Kuttiyani vs High Court Advocates Association on 21 November, 2003

Kerala High Court
Jose Kuttiyani vs High Court Advocates Association on 21 November, 2003
Equivalent citations: 2004 (1) KLT 35
Author: C R Nair
Bench: C R Nair


JUDGMENT

C.N. Ramachandran Nair, J.

1. The petitioner is a practising Advocate of this Court and is also a member of the Kerala High Court Advocates’ Association, hereinafter called the “Association”. A resolution moved by some of the members condemning the conduct of the Hon’ble Chief Justice of the High Court in the constitution of a Full Bench which passed an interim order in a case by majority and a request to the Chief Justice to avoid repetition of such incidents was passed by the General Body of the Association on 8.10.2003. The full text of the resolution produced as Ext. P2 in the W.P. is extracted hereunder for easy reference:

“We the members of the Kerala High Court Advocates’ Association express our grave concern over the manner in which a case which ordinarily ought to have been heard by a single Judge having jurisdiction over the subject, was listed before the Division Bench presided by the Hon’ble Chief Justice, at the request of the counsel for the petitioner without an express order stating reason for the same, and when the brother Judge disagreed on the order to be passed in the case, instead of delivering separate orders and referring the matter to another Judge for opinion, on the same day passed an order in the chamber referring the matter to a Full Bench apparently on questions of fact, constituted a Full Bench of three Judges presided by the Hon’ble Chief Justice, placed the matter before the Full Bench in the afternoon of the same day before the reference order was made known to the parties to the litigation and an interim order was passed in favour of the petitioner;

And further resolve to request the Hon’ble Chief Justice to ensure that such incidents do not take place in future in the better interest of Judiciary and credibility of the institution”.

The resolution when moved was stated to be objected to only by eight members including the petitioner, and the petitioner appears to have maintained the view that the resolution amounts to criminal contempt of court. Therefore after passing of the resolution, the petitioner filed Ext. P5 application dated 14.10.2003 before the Advocate General under Section 15(1)(b) of the Contempt of Courts Act, 1971 for permission for initiating contempt of court proceedings against one of members who moved the resolution and the President of the Association. Consequent upon filing of the application by the petitioner before the Advocate General, the Executive Committee of the Association in their meeting held on 17.10.2003 decided to suspend the petitioner from the primary membership of the Association pending enquiry with effect from 18.10.2003 and the same was communicated to the petitioner by the Secretary of the Association vide Ext. P6. The reason for the petitioner’s suspension is given in the show cause notice produced as Ext. P7 which is as follows:

On 18.10.2003 the General body of the Association passed a resolution in which you also spoke and participated in the voting. Now it has come to the notice of the Executive Committee that you have filed a sanction petition before the Advocate General to initiate criminal proceedings against Adv. Babu Varghese our President and Adv. M.K. Damodaran who moved the resolution stating that the resolution would amount to contempt of court. Therefore you have acted against the decision and the very best interest of the Association. Hence you are called upon to show cause why disciplinary action should not be initiated against you for acting against the Association. If you have any reply to offer it may be done within 15 days from the date of receipt of this notice. If you fail to reply to the show cause notice, it will be presumed that you have no reply to offer.

The copy of the minutes of the meeting of the Executive Committee held on 17.10.2003 is produced as Ext. P8. The petitioner is challenging Exts. P6 to P8 proceedings of the Executive Committee of the Association suspending him from the primary membership of the Association and initiating disciplinary proceedings on the ground that the Executive Committee does not have the authority to suspend him and even if they have the power, the filing of an Application under Section 15(1)(b) of the Contempt of Courts Act before the Advocate General against one of the members who moved the resolution and President of the Association alleging contempt in the resolution passed does not amount to any indiscipline warranting suspension. The relief sought is for quashing Exts. P6 to P8 proceedings and for an order prohibiting the Association from proceeding with the enquiry instituted against the petitioner alleging indiscipline and misconduct for challenging the resolution as one amounting to criminal contempt of Court under Section 2(c) of the Contempt of Courts Act. The respondents filed counter affidavit denying the allegations and praying for dismissal of the Writ Petition as, according to them, the Writ Petition is neither maintainable nor is there any justification for this Court to interfere with the disciplinary proceedings initiated by the Association against one of it’s members.

2. I have heard counsel appearing for the petitioner, Sri. George Poonthottam, senior Counsel Sri. Mathai M. Paikadey, Sri. G. Janardhana Kurup and Sri. K.T. Sankaran appearing for the respondents.

3. The contention of the petitioner is that the resolution when moved was objected to by him as the same, according to him, amounts to criminal contempt of Court as defined under Section 2(c) of the Contempt of Court Act and he was exercising his statutory right as a “person” when he filed Ext. P5 application before the Advocate General under Section 15(1)(b) of the Contempt of Court Act. The petitioner’s further contention is that the Bye-laws of the Association do not define “indiscipline” and even if the filing of an application before the Advocate General for permission to prosecute another member and President of the Association for criminal contempt is treated as “indiscipline” by the Association, the same will be opposed to public policy and cannot be enforced against the petitioner. According to the petitioner, a Writ Petition under Article 226 of the Constitution of India is maintainable against the Association and this Court is fully competent to grant the relief prayed for.

4. Counsel for the respondents on the other hand submitted that the Writ Petition is not maintainable against the Association and even if a Writ is maintainable, the discretionary jurisdiction of this Court under Article 226 of the Constitution may not be exercised in the case of disciplinary proceedings initiated by the Association against a member and particularly in favour of the petitioner who has made wild allegations against the Association; suppressed material facts and has even made misrepresentation on facts. Further, according to the respondents, the General Body of the Association has constituted a disciplinary committee in their meeting held on 20.10.2003 and the petitioner’s suspension vide Ext. P6 does not by itself amount to punishment and the suspension is only pending enquiry and if at all the petitioner has any grievance the same arises only after a final decision is taken by the Association based on the recommendation of the disciplinary committee after conducting an enquiry with due participation of the petitioner. Therefore the respondents pray for dismissal of the Writ Petition.

5. After going through the writ petition, counter affidavit and after hearing counsel for the petitioner and also counsel for the respondents, I feel there is no need for this Court to decide for the purposes of this case as to whether the resolution amounts to criminal contempt of Court under Section 2(c) of the Contempt of Courts Act as alleged by the petitioner, because the matter is pending before the Advocate General for his decision and this court need not preemptly decide that issue. However, this Court has no escape from deciding the question whether a Writ Petition will lie against the Association, and if so, whether the petitioner is entitled to the relief prayed for that is cancellation of the suspension and disciplinary proceedings initiated.

6. So far as the question whether a Writ Petition is maintainable against the Association or not is concerned, this Court has already taken the view in Abdul Azeez v. Alappuzha Bar Association, 1992 (2) KLT 443 that a Bar Association is performing statutory duties under the Advocates’ Welfare Fund Act in relation to the members of the Association, and so much so, the Association comes within the definition of any “person” or “authority” referred to in Article 226 of the Constitution of India. However, counsel for the respondents submitted that the said decision does not pertain to the High Court Advocates Association and as such the same is not applicable. It was further contended that the said decision requires consideration and in any case, the context in which a Writ Petition was found to be maintainable against another Bar Association was with specific reference to the rights of the expelled members who are the beneficiaries under the Kerala Advocates’ Welfare Fund Act. The respondents pointed out that the petitioner deliberately made false statement in the Writ Petition that his application for membership in the Welfare Fund was routed through the respondent-Association while in fact the petitioner became a member of the Welfare Fund through the Bar Association, Thodupuzha in the year 1986 and he became a member of the respondent-Association only in 2002. Counsel for the petitioner on the other hand referred to Ext. P9 issued by the President of the Bar Association, Thodupuzha stating that the petitioner has ceased to be a member of the Bar Association there and is currently only a member of the respondent-Association. According to him, eventhough the petitioner’s membership was obtained through the Bar Association, Thodupuzha, the petitioner’s benefit under the Welfare Fund Act is retained only by virtue of his membership with the respondent-Association. He has also referred to various sections of the Advocate Welfare Fund Act, which makes it mandatory that a member of the Bar Association recognised by the Trustees of the Welfare Fund only can be a member of the Welfare Fund. The purchase of Welfare Fund Stamps by the petitioner without which vakalaths cannot be filed in Court can be only from the respondent-Association and so much so, according to him, whatever the statutory rights and corresponding responsibilities under the Welfare Fund Act he may have are only through the respondent-Association, and if the petitioner is removed from the Association on a permanent basis or for any period, the petitioner will forfeit his statutory rights under the Welfare Fund Act. Therefore according to him in view of the statutory responsibilities under the Welfare Fund Act cast on the respondent-Association, the Association is discharging statutory duties and therefore will come under the description of “authority” referred to in Article 226 of the Constitution of India. Apart from the statutory duty cast on the Association under the Advocates Welfare Fund Act, the petitioner has also referred to two decisions of the Supreme Court reported in U.P.S, Co-operative L.D.B. Ltd. v. Chandra Bhan Dubey and Ors., JT 1998 (9) SC 81 wherein the Supreme Court held as follows:

“When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him.”

Similarly in the case of Surya Dev Rai v. Rama Chander Rai, 2003 (3) KLT 490 (SC) = JT 2003 (6) SC 465, the Supreme Court held as follows:

“……..the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion the Writ of certiorari is directed against the act, order or proceedings of the subordinate court, it can issue even if the lis is between two private parties.

The petitioner has also referred to Wade on Administrative Law (7th Edn.) wherein under the head “Review of non-statutory Action” it is stated as follows:

The law has been driven from these family moorings by the impetus of expanding judicial review, which has been extended to two kinds of non-statutory action. One is where bodies which are unquestionably governmental do things which no statutory power is necessary, such as issuing circulars or other forms of information. Examples have already been given to show how the courts will entertain actions disputing statements of law in government circulars, although the circulars themselves can have no legal effect. The other category is where judicial review is extended to bodies which, by the traditional test, would not be subject to judicial review and which, in some cases, fall outside the sphere of Government altogether. A variety of commercial, professional, sporting and other activities are regulated by powerful bodies which are devoid of statutory status and may yet have an effective monopoly. In their willingness to ‘recognise the realities of executive power’ and in their desire to prevent its abuse the courts have undertaken to review the decisions of a number of such bodies, while in other cases they have refused. The limits of this new jurisdiction have been explored in a series of judgments and they are by no means certain. At the present stage they are best discussed case by case, as in the paragraphs below. The first in order of time, and by a ling interval, was the case of the Criminal Injuries Compensation Board.

These judicial forays into areas beyond the law have constitutional implications. The rule of law now operates in territory previously supposed to be beyond its reach. Where the Court undertakes, as illustrated below, to enforce the self-made rules of a non-statutory body, those rules become in effect legislation, though in no way authorised by Parliament. Other novel phenomena are likely to reveal themselves. None of the decisions concerning non-statutory boards or committees has yet come before the House of Lords, but it seems unlikely that the House will refuse recognition to this enterprising development.

Based on the above the petitioner contended that the Association is discharging public duties and is amenable to Writ jurisdiction.

7. The respondents on the other hand relied on the decisions of this Court in Dr. Pitchiah v. Lisie Hospital, 1998 (2) KLT 33 and A. Yesuratnam v. Church of South India, 1983 KLT (SN) 46 (Case No. 73), and contended that proceedings under Article 226 of the Constitution cannot be initiated against the Association which is not a statutory body. According to them, the maintainability of a Writ Petition has to be decided with reference to the action under challenge which is only a suspension pending enquiry for disciplinary action. Their contention is that this Court cannot interfere with disciplinary proceedings initiated by the Executive Committee against a member in accordance with Bye-laws by the Association. It was also pointed out that the context in which this Court decided the Alleppey Bar Association case was not pertaining to any disciplinary action, but only a case of deprivation of the petitioners therein from membership which led to denial of statutory benefit under the Welfare Fund Act. However, according to respondents, in this particular case, the petitioner is not deprived of any statutory benefit and the suspension will be in force until completion of enquiry by the disciplinary committee and further action if any taken. Therefore the respondents contended that even if a writ may lie against the Association for the limited purpose pertaining to discharge of statutory duties under the Welfare Fund Act, no proceedings can be initiated against the Association under Article 226 of the Constitution of India against disciplinary action.

8. I am unable to accept the contention of the respondents that a writ is not maintainable against the Association. I am completely in agreement with the view taken by this Court in Alleppey Bar Association’s case referred to above and the decision squarely applies to this case and it makes no difference whether the petitioner’s application for membership to the Welfare Fund is routed through the respondent-Association or not. Section 15(1) of the Welfare Fund Act makes it clear that in order to get membership and though not specifically stated to retain it an advocate has to be a member of the Bar Association as defined under Section 2(b) which is an Association recognised by the Bar Council under Section 13 of the Act. A list of members of recognised Bar Association as on 31st March every year as provided under Section 14(1) of the Welfare Fund Act and changes in membership under Section 14(2)(b) have to be submitted by such Association. The Welfare Fund stamps without which vakkalaths cannot be filed in any court are sold by the Welfare Fund through the Association and are not sold to a beneficiary directly. The Scheme of the Advocates Welfare Fund Act makes it mandatory that in order to get membership in the Fund and to retain membership an Advocate has to be always a member of Bar Association recognised by the Bar Council. The petitioner’s continued membership in the Association is absolutely essential for his enjoyment of statutory benefit under the Welfare Fund Act. Therefore eventhough the Association is not constituted by a statute, it is burdened with statutory duties for the welfare of the members, whether it be to it’s liking or not. So long as the petitioner remains suspended from the membership of the respondent-Association, the petitioner has the disability of getting welfare fund stamps from the Association and therefore suspension necessarily involves deprivation of statutory benefit to the petitioner, however, temporary or limited the same may be. Apart from the statutory duty cast on the Association under the Welfare Fund Act, in relation to the members, I feel the Association’s constitution and functioning are such that it cannot be treated as a members club. There is only one Association of the High Court Advocates and it is functioning in the High Court campus in a building belonging to the Government and the Association is provided building facility even in the new High Court building complex constructed at Govt. cost. The High Court itself co-ordinates with the Association in matters pertaining to printing and supplying of cause list, arranging High Court official functions, etc. In other words, the Association is the sole representative body of all the advocates practising in the High Court. Eventhough membership under the Bye-laws of the Association is granted by the Executive Committee, the Executive Committee is not free to decline membership to an Advocate practising in the High Court at their discretion. On a specific question to counsel appearing for the association as to whether any advocate of the High Court was ever denied membership, the answer is “no”. In other words, membership is granted to a practising advocate of the High Court as a matter of his right and not at the discretion of the Executive Committee. The Association is also a perpetual body generally of all the Advocates of the High Court and even General Body cannot dissolve Association and share it’s assets among it’s members. The right of admission and continued membership in the Association for a practising Advocate in the High Court is neither at the discretion of the Executive Committee nor at the pleasure of the General Body of the Association. The facilities under the control of the Association, namely, the building, canteen, library, etc., are to be enjoyed by the lawyers community in the High Court as a whole though organised under the Association and not by the majority to the exclusion of others. Therefore the Association is a monopoly organisation the members of which have vested right to enjoy the facilities most of which are maintained at public cost. Going by the decision of this Court in the Alleppey Bar Association’s case, the trend noticed in the later decisions of the Supreme Court and by virtue of legal rights of the members as stated above which can be enjoyed only by being a member, I feel Writ Petition under Article 226 of the Constitution is maintainable against the Association.

9. The next contention raised by the respondents is that even if writ is maintainable against the Association, this Court should not invoke its discretionary jurisdiction under Article 226 of the Constitution in favour of the petitioner for more than one reason. In the first place the respondents relied on the decisions of this Court in Ajith v. Executive Engineer, KSEB, 1987 (1) KLT 272 and the Full Bench decision of this Court in G. Appukuttan Pillai v. Government of India, 1970 KLT 60 = AIR 1970 Ker. 110 (FB) and contended that the Writ Petition is liable to be dismissed on account of suppression of material facts, and false, and derogatory statements made by the petitioner against the Association and against one of the members who moved the resolution. The respondents’ allegation is that the statement by the petitioner that his Application for membership in the Welfare Fund was routed through the respondent-Association is false because he obtained membership in the Welfare Fund in 1986 through the Bar Association, Thodupuzha and joined the respondent Association only in 2002. In reply to this, the petitioner stated that the petitioner never intended to make a false statement to mislead the court and though the time of admission to Welfare Fund the petitioner was a member of the Bar Association, Thodupuzha, he has ceased to be a member of that Association, as is evident from Ext. P9 issued by the President of the Bar Association, Thodupuzha. According to him, all that he meant was that the benefit under the Welfare Fund will be available to him only if he retains his membership in the respondent-Association. The next objection raised by the respondents is that the petitioner has made serious allegations against one of the members who moved the resolution and has attributed political-motives in moving the resolution. The petitioner’s explanation to this is that he has narrated certain events reported in the media and those are not personal allegations made by him, but are only reiteration of the media reports.

10. I do not think the statements made by the petitioner are to be treated as fatal to the Writ Petition. It makes no difference whether he was admitted to the Welfare Fund through another Bar Association, or the respondent-Association because it is conceded that as on today, the petitioner depends upon the respondent-Association for Welfare Fund benefits and the petitioner is not a member of any other Association. So far as the other allegations against the political party and a member of the Association
are concerned, though such allegations should have been avoided, I do not think these
are enough grounds to decline relief to the petitioner because the statement in the
W.P. are essentially reactions of the petitioner to the suspension from the Association
which at least according to him is outrageous. So long as the incorrect or irrelevant
statements by the petitioner in the W.P. are not the basis of maintainability of the W.P.

or for granting relief, I do not think the W.P. can be dismissed on the ground that the
petitioner has made false or incorrect statements or statements derogatory about one
of the members who moved the resolution.

11. The next question raised by the respondents is that W.P. is not maintainable against suspension because suspension is not a punishment in itself and is only an interim arrangement made pending enquiry against the petitioner for disciplinary action. Respondents also pointed out that the Association has constituted disciplinary committee and the matter is referred to the disciplinary committee for enquiry and for their recommendation. Respondents relying on the decision of the Supreme Court in R.P. Kapur v. Union of India, AIR 1964 SC 787 and in some other cases contended that suspension is not a punishment and is only an interim measure In disciplinary proceedings and therefore this court should not interfere with the proceedings initiated against a member which the Association is entitled to under the Bye-laws. The question whether suspension acts as punishment has to be considered by referring to it’s effect on the person against whom the order is passed. So far as the petitioner is concerned, for all purposes he has to dis-associate himself with the Association so long as his suspension from primary membership stands. The respondents’ argument that suspension is only initiation of disciplinary proceedings and the same ends with the final order based on the recommendation of the disciplinary committee cannot be accepted because even if the petitioner is exonerated on the basis of the recommendation of the disciplinary committee, neither the Executive Committee which has suspended the petitioner nor the General body can reverse the position retrospectively and the petitioner in effect suffers expulsion during the period of suspension. The decisions cited by the respondents all pertain to suspension of employees or workmen by employers and in all such cases the Service Rules or Standing Orders, as the case may be, provide for payment of part of wages or at least subsistence allowance during the period of suspension and if the suspension is revoked, the employee is taken back by giving full wages for the period of suspension. The situation here is not comparable to employer-employee relationship and therefore the principle stated in the decisions cited cannot be applied. For all practical purposes the petitioner’s suspension is virtually expulsion during the period of suspension and so much so I am unable to accept the respondents’ contention that suspension is not a punishment and it is only a procedural matter in the course of disciplinary proceedings. In view of this finding, this Court has to necessarily proceed to go into the legality or propriety of the suspension order. While the petitioner maintains that suspension is not contemplated under the Bye-laws of the Association, the respondents contend that suspension is an inherent authority vested with the Executive Committee of the Association by virtue of their residuary power under Clause 13(xii) of the Bye-laws. It is also contended by them that the authority admitting a member is the Executive Committee and the power to admit takes in the power of suspension. Clause 3(e) of the Byelaws provides for election of members of the disciplinary committee along with other office-bearers. Moreover, Clause 47(a) of the Bye laws provides for expulsion of members for indiscipline by the General Body on the recommendation of the Disciplinary Committee. Therefore, disciplinary proceedings are contemplated under the Byelaws and the petitioner’s argument, that Association cannot initiate proceedings for indiscipline against a member is not sustainable. It cannot also be visualised that the General Body while adopting Byelaws never intended a suspension pending disciplinary proceedings because the Executive Committee is given wide powers of general nature which certainly should be taken to include the power to suspend and initiate disciplinary proceedings. It is also to be noted that the members of the Executive Committee are elected by the General Body annually and it is a delegate of the General Body and therefore it’s powers under the Byelaws are to be interpreted liberally to protect the interests of the Association and its members. Under Clause 10 the Executive Committee is vested with authority to manage the Association and they can do everything except what is reserved for the General Body by the Byelaws. Therefore and particularly by virtue of Clause 13(xii) the Executive Committee’s power to suspend is beyond challenge and I reject this contention of the petitioner.

12. The last and probably the most crucial issue is whether this Court will be justified in interfering with the petitioner’s suspension by the Executive Committee of the Association alleging indiscipline. In the normal clause, this Court will not interfere in a matter of this nature, where the Association takes disciplinary proceedings against one of its member, as is entitled to maintain discipline among members. However, the issue involved in this case is quite unique and is not a case of misconduct of an ordinary nature alleged against the petitioner. All what the petitioner has done is to make an application before the Advocate General under Section 15(1)(b) of the Contempt of Courts Act for permission to prosecute the respondents shown in the Petition for criminal contempt of Court as defined under Section 2(c) of the Contempt of Courts Act. In the first place Byelaws of the Association do not in any manner restrict the rights of the members vested by statute. There is also nothing to indicate in the Bye-laws that a member cannot question the legality of a resolution passed or action taken by the Executive Committee or the General Body in any Court of law without fear of suspension. Eventhough the absence of definition for “indiscipline” in the Bye-laws does not bar the Executive Committee from initiating action for any act which they consider as an act of indiscipline and the attempt by a member to implicate the office bearers of the Association in a criminal case for passing a resolution in the normal course is certainly an act of gross indiscipline, the question is whether such an act of indiscipline will come under an exception, inasmuch as the petitioner’s allegation is that the contents of the resolution passed amount to criminal contempt of Court under Section 2(c) of the Contempt of Courts Act and has a statutory right to complaint against it. It has been held by the Supreme Court in Co-operative Central Bank and Ors. v. Addl. Industrial Tribunal, A.P., AIR 1970 SC 245 that Bye-laws of a society like Article s of Association of a company do not have the force of law and constitute only contract among the members. So much so, the Bye-laws of the Association though bind the members, it’s provisions have to pass the test of the provisions of the Contract Act. Section 10 read with Section 23 of the Indian Contract Act specifically declares a contract void if it is opposed to public policy. The fact that the resolution got passed by majority of the members of the General Body or even with the support of all the members, does not by itself make the resolution as one in conformity with the laws of the land. If it constitutes an offence punishable under law, then the Association or the members or those responsible, as the case may be, are liable to be proceeded against. The statutory right of a member to lodge a complaint against such action of the Association is not forfeited by virtue of his membership in the Association. A contract, whether express or implied, among the members of the Association, to maintain discipline which certainly requires a member to recognise, respect and abide by the decision of the Association taken in accordance with the procedure prescribed by the Bye-laws even if it is opposed to his views cannot therefore bar a member from exercising his statutory right to lodge a complaint for appropriate action against the guilty if the decision of the Association amounts to a criminal offence. Therefore the discipline expected to a member of the Association to act in conformity with the decision of the General Body through resolution or otherwise covers only matters that are legally permissible and not any decision or act which amounts to an offence. If the conduct of the petitioner in making an application before the Advocate General seeking permission under Section 15(1)(b) of the Contempt of Courts Act for prosecuting a member and an office-bearer of the Association for criminal contempt of Court under Section 2(c) of the Contempt of Courts Act is treated as misconduct by the Executive Committee then it amounts to enforcing a code of conduct expected of a member which is opposed to public policy. This Court in the decision of Mathai v. Federal Bank Ltd., ILR (1993) 2 (Ker.) 479 held as follows:

“……. .A rule of law is to be applied whether or not it defeats the intention of the parties. A rule of construction exists to give effect to that intention. Within the sphere of contract the doctrine of public policy operates as a rule of law: a contract which offends it is void despite the wishes of the parties”.

If the argument of the Association that the filing of an application by a member under Section 15(1)(b) of the Contempt of Courts Act against the Association is an act of indiscipline the Advocate General who is also a member of the Association cannot discharge his statutory duty without fear of action for indiscipline. Therefore, there can be no act of indiscipline in a member of the Association filing an application under Section 15(1)(b) of the Contempt of Courts Act before the Advocate General for prosecuting the Association for criminal contempt of court arising out of the resolution passed. Eventhough I do not propose to go into the merits of the petition filed before the Advocate General by the petitioner, going by the contents of the resolution, I feel the concern of the members of the Association is on maintaining the dignity of the courts and the decorum to be maintained by the high, office of the Chief Justice. Needless to mention that the Contempt of Courts Act is essentially enacted to achieve the very same object. Therefore there is no conflict between the driving force behind the resolution and the object of the Contempt of Courts Act. So much so, I personally feel the Association should not shy away from the proceedings initiated by the petitioner, but should volunteer to defend their decision and let the resolution be tested against statutory provisions under the Contempt of Courts Act. Since the Application moved by the petitioner before the Advocate General under Section 15(1)(b) of the Contempt of Courts Act does not constitute any act of indiscipline, the suspension and disciplinary proceedings initiated against the petitioner solely based on the said application are illegal, arbitrary and unsustainable. In view of my finding that suspension has the effect of only punishment on the petitioner, I have to necessarily hold that the orders of suspension issued by the Executive Committee without issuing notice, and without hearing the petitioner is violation of natural justice also. In any case, since I found that the basis for suspension that is the Application moved by the petitioner before the Advocate General under Section 13(1)(b) of the Act is an exercise of the petitioner’s statutory right and so much so, the same cannot constitute any act of indiscipline, there is no need to go into the procedural impropriety in issuing the suspension order. The suspension order is therefore vacated and since the disciplinary proceedings initiated against the petitioner is also on the same grounds, the said proceedings are also cancelled.;

13. In view of the above finding, I do not propose to go into the other issues raised by the petitioner mainly against the propriety of nomination of members of the disciplinary committee in violation of Clause 3(e) of the Byelaws which provides for election of members of the disciplinary committee along with other office-bearers annually.

W.P. is allowed as indicated above.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information