Deadlock on Bar polls: Bar council to issue show cause notice to High Court Bar president and secretary
Chandigarh, September 15, 2020: Bar Council of Punjab and Haryana taking serious notice of the ‘disobedience’ by the High Bar Association by refusing to conduct online elections to the association, decided to issue the show cause notice for disciplinary action. The Bar council resolution passed in its extra-ordinary / emergent meeting held on September 15, 2020 states,
“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).”
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COPY OF THE RESOLUTION PASSED BY THE BAR COUNCIL OF PUNJAB AND HARYANA IN ITS EXTRA-ORDINARY/EMERGENT MEETING HELD TODAY i.e. 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 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 & 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'.
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 3rd 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 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 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 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:-
“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 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 (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:-
- 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.
- 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.
- 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 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 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 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.
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 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