CIVIL

It is hereby declared that Bar Council of West Bengal has no power to call upon Advocates on its roll to cease work or to compel them not to attend Court and such a resolution will not be binding upon Advocates on its roll: CHC in 1995

26-09-1995 – Call for cease work by the Bar Council and compelling an Advocate to cease work not only amounts to negation of such statutory right of Advocate u/s 14 of the Bar Council Act to practise as of right, the same is also an invasion of the fundamental right of an Advocate as guaranteed under Art. 19(1)(g) of the Constitution of India under which the freedom to practise any profession is guaranteed subject to reasonable restrictions that may be imposed, In exercise of such fundamental right every Advocate has the freedom to practise as a lawyer, Subject to reasonable restrictions that might be imposed. The only reasonable restriction upon such freedom and right of an Advocate is provided in the aforesaid provision of Section 14 of the Bar Council Act 1926 and in the various regulatory measures including disciplinary power which could be exercised by the Bar Council under the Advocates Act 1961.

(1996) AIR(Calcutta) 331

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : Samaresh Banerjea, J )

ARUNAVA GHOSH AND OTHERS — Appellant

Vs.

BAR COUNCIL OF WEST BENGAL AND OTHERS — Respondent

C.O. No. [W] of 1994

Decided on : 26-09-1995

Advocates Act, 1961 – Section 14(2), Section 30, Section 35, Section 35(1), Section 36, Section 4, Section 6, Section 6(1), Section 8, Section 9, Section 9(2), Section 9(4)
Bar Councils Act, 1926 – Section 14, Section 14(1), Section 15, Section 7, Section 7(1), Section 8(2), Section 8(2)
Constitution of India, 1950 – Article 12, Article 19, Article 19(1), Article 21
General Clauses Act, 1897 – Section 3
Legal Practitioners Act, 1879 – Section 13

Cases Referred

Emperor Vs. Rajani Nath Bhattacharjee and Others, AIR 1931 Cal 706
Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, AIR 1952 SC 369 : (1953) 4 SCR 1
E.S. Reddi Vs. Chief Secretary, Government of A.P. and Another, AIR 1987 SC 1550 : (1987) 2 JT 339 : (1987) 1 SCALE 919 : (1987) 3 SCC 258 : (1987) 3 SCR 146 : (1987) 2 UJ 283
M. Pentiah and Others Vs. Muddala Veeramallappa and Others, AIR 1961 SC 1107 : (1961) 2 SCR 295
The State of Orissa Vs. Sudhansu Sekhar Misra and Others, AIR 1968 SC 647 : (1970) 1 LLJ 662 : (1968) 2 SCR 154
Commissioner of Income Tax, Assam and Nagaland etc. Vs. Shri G. Hyatt, AIR 1971 SC 725 : (1971) 80 ITR 177 : (1971) 1 SCC 466 : (1971) 3 SCR 438 : (1971) 3 UJ 212
M. Veerabhadra Rao Vs. Tek Chand, AIR 1985 SC 28 : (1984) 2 SCALE 608 : (1984) 1 SCC 571 Supp : (1984) SCC 571 Supp : (1985) 1 SCR 1003
Devata Prasad Singh Chaudhuri and Others Vs. The Hon’ble The Chief Justice and Judges of the Patna High Court, AIR 1962 SC 201 : (1962) 3 SCR 305
Commissioner of Income Tax, Patiala and Others Vs. Shahzada Nand and Sons and Others, AIR 1966 SC 1342 : (1966) 60 ITR 392 : (1966) 3 SCR 379
Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 SC 907 : (1958) 1 SCR 360
Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, AIR 1980 SC 1992 : (1980) 4 SCC 1 : (1980) 3 SCR 1338
Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, AIR 1975 SC 2092 : (1975) 2 SCC 702 : (1976) 1 SCR 306
The Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, AIR 1976 SC 242 : (1976) 2 SCC 291 : (1976) 2 SCR 48
Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, AIR 1984 SC 1543 : (1984) 2 SCALE 30 : (1984) 4 SCC 27 : (1985) 1 SCR 29 : (1984) 16 UJ 1107
Tahsildar Singh and Another Vs. The State of Uttar Pradesh, AIR 1959 SC 1012 : (1959) CriLJ 1231 : (1959) 2 SCR 875 Supp
Thakur Amar Singhji Vs. State of Rajasthan, AIR 1955 SC 504 : (1955) 2 SCR 303
Asif Hameed and others Vs. State of Jammu and Kashmir and Others, AIR 1989 SC 1899 : (1989) 2 JT 548 : (1989) 1 SCALE 1547 : (1989) 2 SCC 364 Supp : (1989) 3 SCR 19
M.K. Ranganathan and Another Vs. Government of Madras and Others, AIR 1955 SC 604 : (1955) 25 CompCas 344 : (1955) 2 SCR 374
Central Coal Fields Ltd. and Another Vs. Jaiswal Coal Co. and Others, AIR 1980 SC 2125 : (1980) 12 UJ 976
V.C. Rangadurai Vs. D. Gopalan and Others, AIR 1979 SC 281 : (1979) 1 SCC 308 : (1979) 1 SCR 1054 : (1978) 10 UJ 838
Kehar Singh and Others Vs. State (Delhi Administration), AIR 1988 SC 1883 : (1989) CriLJ 1 : (1988) 3 JT 191 : (1988) 2 SCALE 117 : (1988) 3 SCC 609 : (1988) 2 SCR 24 Supp
Commissioner of Income Tax, Central, Calcutta Vs. National Taj Traders, AIR 1980 SC 485 : (1980) 14 CTR 348 : (1980) 121 ITR 535 : (1980) 1 SCC 370 : (1980) 2 SCR 268 : (1979) 2 TAXMAN 546
O.P. Singla and Another Vs. Union of India (UOI) and Others, AIR 1984 SC 1595 : (1985) 50 FLR 257 : (1984) LabIC 1659 : (1985) 2 LLJ 309 : (1984) 2 SCALE 144 : (1984) 4 SCC 450 : (1985) 1 SCR 351
Mangilal and Others Vs. State of M.P., (1994) 2 Crimes 225 : (1994) 3 JT 644 : (1994) 2 SCALE 735 : (1994) 4 SCC 564 : (1994) 3 SCR 774 : (1994) WritLR 481
Balasinor Nagrik Cooperative Bank Ltd. Vs. Babubhai Shankerlal Pandya and Others, AIR 1987 SC 849 : (1987) 1 JT 462 : (1987) 1 SCALE 348 : (1987) 1 SCC 606 : (1987) 1 UJ 379
Onkar Singh Vs. Angrez Singh and others, AIR 1993 P&H 134 : (1993) 103 PLR 541
Emperor Vs. Babus Rajani Kanta Bose and Another, Babus Rajani Kanta Nag and Another, Babu Annada Charan Roy and Babu Surendra Kumar Nag, AIR 1922 Cal 515 : 71 Ind. Cas. 81

Counsel for Appearing Parties

Balai Chandra Roy, Samaraditya Pal, Bikash Ranjan Bhattacharjee and Stayabrata Majumdar, for the Appellant;

Bholanath Sen, Gopal Chakraborty, Soumendra Chandra Bose, Biswaroop Gupta, R.W. Das, Biswa Ranjan Ghosal (in person), Umaprasad Mukherjee and Ashish Kumar Roy, for the Respondent

ORDER

1. Does the Bar Council of West Bengal which is a Statutory Body, have the jurisdiction to call upon the Advocates on its roll to cease their work and to desist from attending Court? Would such a call if given by the Bar Council be binding on an Advocate? Can the Bar Council take steps for penalising an Advocate who chooses to ignore such call given by the Bar Council?

2. Such grave and important questions have come up for consideration by this Court at the instance of four practicing Learned Advocates of this Court, who in the writ petition have challenged the resolutions of the Bar Council of West Bengal dated 3rd May, 6th May, 11th May and 13th May, 1994 and the jurisdiction of the Bar Council to give such a call.

3. By the resolution dated 3rd May, 1994 it was resolved by the Bar Council of West Bengal, inter alia, as follows:–

“This Council having considered the disturbing position of Alipore Criminal Court and the Howrah Court and having also noted the letter of the West Bengal Judicial Services Association dated 2-5-1994, it is decided that unless steps are taken by appropriate authorities for shifting the Criminal Courts of Alipore and the Magistrates’ Court at Howrah now situated at the Red Building (Howrah) which is a condemned Building, to a suitable building and this Council are apprised thereof by4p.m. on 6th May, 1994, all Courts/ Tribunals/Authorities including the Courts of Andaman and Nicobar Islands shall observe Cease Work from 10th to 16th May, 1994. These two items will further be considered at an emergency meeting on 6th May, 1994 at 4.30 p.m.”

4. By the resolution dated 6th May, 1994 the Bar Council of West Bengal resolved as follows:– “The Members of the Bar Council consider the proceedings of the meeting held on 3rd May, 1994 and reiterated the same. In view of the condition laid down in the resolution not having been complied with by the authorities concerned by taking positive steps to shift the Magistrates’ Courts of Alipore and Howrah from the condemned buildings, the resolution dated 3rd May, 1994 calling upon all the Advocates in West Bengal and Andaman and Nicobar Islands to observe Cease Work from 10th May, 1994 continuously till 16th May, 1994 stands. “Provided, however, if in the meantime including from 10th May, 1994 to 16th May, 1994, positive steps are taken by the authorities concerned to shift the Court Rooms in question, then the Council shall rescind the decision by calling an emergency meeting.”

5. By the resolution dated 11th May, 1994 the Bar Council of West Bengal condemned whoever has violated the resolution of the Bar Council’s call for Cease Work deciding to continue the Cease Work till 16th May, 1994.

6. By the resolution dated 13th May, 1994 the Bar Council, inter alia, passed the following resolution:–

“Resolved that the Advocates who have defied the direction of the Bar Council’s resolution dated 6th May, 1994 for ‘Cease Work’ may be issued with a show cause notice. In the event the State Bar Council have reasons to believe that these Advocates are guilty of other misconduct they may refer the cases for disposal to its disciplinary Committee vide Section 35(1) of the Advocates Act, 1961.”

7. It is the case of the petitioners that they are all practising Advocates of this Court and their names are borne on the State roll of Advocates maintained by the West Bengal Bar Council and as such as Advocates, they are entitled as of right to practise the profession of law u/s 14 of the Indian Bar Council Act, 1926, Section 30 of the Advocates Act not having brought into force as yet. It is the contention of the petitioners that Section 14(1) of the Bar Council Act, 1926 empowers all Advocates to practise as of right the profession of law subject only to the other provisions of the said Section and the Bar Council of West Bengal has no power or authority under the Advocates Act to interfere with such right of the petitioner to practise at all times absolutely and freely the legal profession. The only power which the Bar Council possesses to interfere with such right of the petitioners to practise is by way of taking disciplinary actions against an Advocate who has committed professional or other misconduct u/s 35 of the Advocates Act, after such an Advocate is found guilty of committing such misconduct after due enquiry by disciplinary committee. It is also the contention of the petitioners that their fundamental right to freedom of choice of their profession and, therefore to practise legal profession is guaranteed Art. 19(1)(g) of the Constitution and their right to practice u/s 14 of the Indian Bar Council Act, 1926 is subject only to the restriction laid down therein which are regulatory measures within the meaning of reasonable restriction under Art. 19(b) of the Constitution of India. The jurisdiction of the Bar Council which is statutory body to exercie control over the Advocates on its roll are limited statutory powers to be exercised only in a given a situation and the Bar Council has no power to restrict, interfere with, suspend or prohibit the right of an Advocate to practise the profession of law. The resolution of the Bar Council adopted on 3rd and 6th May, 1994 were without jurisdiction and the directions contained therein are unreasonable, illegal, mala fide and arbitrary. It is the further contention of the petitioners that the original resolution dated 3rd May, 1994 containing a direction upon the Courts and Tribunals to cease work, amounts to gross interference with due course of justice and amounts to contempt of Court. Rule of law requires a functioning judiciary and the Advocates as officers of the Court and withdrawal of the Advocates from the Courts subvert the judicial process and ultimately impinges on rule of law which is the basic structure of the Constitution. Because of the aforesaid resolutions the petitioners were prevented from freely practising the legal profession during such days and except the matters which can be heard and disposed of ex parte, the Courts were disinclined to hear other matters. Because of such resolution adopted by the Bar Council the right of the petitioners, who earn their livelihood by practising the profession of law, to life which includes right to livelihood was taken away and the fundamental rights of the petitioners under Art. 21 of the Constitution was infringed. The resolution dated 11th May 1994, whereby the Bar Council condemned the conduct of those lawyers who were attending the Court during the cease work was published in various newspapers and by such condemnation the conduct of petitioners have been grossly undermined and the petitioners’ professional standing and images have been tarnished. Because of such condemnation the petitioners have been lowered down in the estimation of the people and have suffered serious injuries and cannot conduct themselves in their profession with same dignity and comfort as they could do. Since the Bar Council not stopping at such condemnation by the resolution dated 13th May 1994 decided to issue notices to show cause against the petitioners, the same has raised reasonable apprehension in the mind of the petitioners that they may even be debarred from practising.

8. Quoting from observations of the Supreme Court and the English Courts in different cases relating to the nature and character of the legal profession and the standard of ethics to be followed by the Advocates and also referring to the rules framed by the Bar Council u/s 49(1)(c) of the Advocates Act relating to standard of the professional conduct and etiquette, it has been further contended by the petitioners that the Advocates practise the profession of law to serve the people to secure justice for them and to do everything as agent of his client to espouse honourably and fearlessly the cause of his client although not as his client’s mouthpiece, having allegiance to a higher cause, namely the cause of truth and justice which he secures as an officer of the Court. It is contended that such standard of professional conduct and etiquette imposes a compulsive duty on an Advocate to accept brief of a litigant unless exempted by the rules and to plead his cause in Court and not to withdraw from such duty without notice to his client and without reasonable cause.

9. It has been further contended by the petitioners that tenures of the Bar Council and its members, which is 5 years from the date of declaration of the. result of the last election, having expired on January 1994 the respondent Nos. 5-27 who were the members of the Bar Council were (sic) the office of the members of the West Bengal Bar Council and they are performing their duty without any authority of law.

10. It has been prayed by the writ petitioners, inter alia, for a declaration that the respondents have no jurisdiction or power to call upon Courts/Tribunal/Authorities or the Advocates to cease work or to boycot any Court or to resort to strike so that normal works of the Courts are disrupted and the Advocates are prevented from practising profession of law; for a further direction upon the respondents to forebear from interfering with or suspending or prohibiting the Advocates form performing their professional work by calling upon them to cease work and for issue of a writ in the nature of prohibition prohibiting the respondents from giving any effect or further effect to the resolution dated 3rd May, 6th May, 11th May and 13th May 1994 and for writ in the nature of mandamus directing the respondents to withdraw and/or rescind such resolutions. A writ in the nature of quo warranto has also been asked for commanding the respondent No. 2 and respondent Nos. 5 to 27 to vacate the office of the members of the West Bengal Bar Council to withdraw and resile such resolution.

11. The Bar Council of West Bengal as also some of the other respondents being the Chairman and the members of the Bar Council have contested the writ application by filing affidavit-in-opposition. The Bar Council of West Bengal as also some other respondents in their affidavit-in-opposition first of all have challenged the maintainabilities of the writ petition, inter alia, on the grounds that the writ petitioners not having complained of any injury, there is no cause of action for moving the writ application, there is no live issue which require consideration by this Court and, therefore, the writ Court should not exercise its discretion in futility and the resolution challenged in the writ application do not require to be adjudicated by this Court.

12. Apart from such preliminary points, the sum and.substance of the contention of the Bar Council in its affidaVit-in-opposition is that one of the functions of the Bar Council of West Bengal u/s 6(1)(d) of the Advocates Act is to safeguard the rights, privileges, and interests of the Advocates on its roll and accordingly has the power and jurisdiction u/s 6(1)(i) of the said Act to do all things necessary for discharging the aforesaid function and in exercise of such power the Bar Council has the jurisdiction to call upon the Advocates on its roll to cease work for safeguarding the interest of the Advocate. It has been contended in the said affidavit that the impugned resolution calling upon the Advocates to cease work was passed for protection of the interest of the members of profession at large as the safety and security of the Advocates were being ignored by the State Government in that in spite of the admitted fact that the one of the Court Buildings at Alipore Court and another at Howrah Court are in dilapidated condition and in fact caused an accident resulting in the death of two persons, no steps were taken by the State Government either to protect such buildings or shift their Courts from such building in spite of the repeated representation by the lawyers. It is contended that the Bar. Council of West Bengal being concerned with the infrastructure of the District Courts in West Bengal which are far from satisfactory were certainly entitled in law to take any appropriate action for safeguarding the interest of the Advocates on its roll including giving a call for such cease work and it was found that the State Government had taken effective steps only after such cease work. In various paragraphs in the said affidavit-in-opposition it has been pleaded in details the background of giving such a call for cease work by narrating chronologically the sequence of events which led to cease work and by narrating how on 13th Nov. 1994 after receipt of information about 2 incidents of death, one of Court employees and another of a Home Guard for collapse of an outside portion of the parapet of the South-Western portion of the Howrah Civil Court the Bar Council took steps to protect the interest of the Advocates on its roll, first of all by calling upon the Government to shift the Courts from the dilapidated buildings to some other safer building, by pursuing the matter in various manners including representing to the State Government and to the Chief Justice of this High Court and only thereafter by calling upon the Advocates to cease work when all other methods adopted by the Bar Council failed to evoke proper response of the State Government. It is contended in the said affidavit that the resolution dated 11th May, 1994 condemning the action of the Advocates who defied the resolution of the Bar Council and the resolution dated 13th May, 1994 deciding to issue show cause notice against such Advocates were taken after the Chairman of the Bar Council received reports from the Burdwan Bar Association that four Advocates attended Courts deliberately violating the resolution of the Bar Council for cease work and after receiving a resolution of one Association, namely “National Lawyers Forum” where it was resolved by the said Forum as on 10th May, 1994 handful members of the legal profession attended the High Court defying the resolution of the Bar Council to cease work, the West Bengal Bar Council should take sternest action against the defaulting members expeditiously as such members of the profession are out to destroy the unified move of the members of the legal profession throughout the State and also after receiving an information from the Commercial Tax, Bur Association, Calcutta about disobedience of such a resolution of cease work by same Advocates in High Court and in other Courts in the State,

13. It has been further contended in the said affidavit-in-opposition that since 1961 the Bar Council of India and the State Bar Council have occasionally called upon the Advocates for observing cease work the object and purpose of unity in the entire legal fraternity for achieving the object of safeguarding the rights, privileges and interests of Advocates when all other attempts are unsuccessful like negotiations and representation. Only in grave situation like when an Advocate is assaulted or harassed by the police or an Advocate under arrest has been brought in the Court room with a rope tied around arrest, the Advocates Chamber in the Court premises are demolished etc. such a measure has been accepted by the Bar Council to protect the interest of the Advocates when all other methods failed the background for passing the impugned resolutions calling upon the Advocates to cease work will amply demonstrate that such a measure was resorted to by the Bar Council of West Bengal when all other methods failed. It has been contended that the Bar Council from its experience has found that individual representations of some Bar Libraries/Bar Associations to move the Government earlier proved to be futile even when the situation called for immediate attention and only when the Bar Council takes up as a genuine cause concerning the rights of the members of the legal profession, the State Government could realise the gravity of the situation. The situation in the instant case very much justifies the action resorted by the Bar Council, namely calling upon the Advocates to cease work and in fact only after resorting to such action, the Bar Council has been able to make the Government alive to the problem and take an appropriate step. Had not the Bar Council taken such steps, because of the dilapidated condition of the Court buildings concerned further lives might have been lost and the same would have been broken down the administration of justice. Against any Advocate, attempting to obstruct the Bar Council to perform its statutory duties by attempting to protect the unity among the lawyers to safeguard the rights, interests and privileges of the Advocates, the Bar Council has the power u/s 35 of the Advocates Act and under the rules made thereunder to take appropriate action if necessary.

14. As to the question of tenure of the Bar Council, it has been contended that such tenure was duly extended legally by the Bar Council of India and during such extended tenure the Bar Council took the impugned resolution and therefore the members of the Bar Councils arc certainly not impostors to their office.

15. It will thus appears from the said affidavit-in-opposition of the Bar Council of West Bengal, that apart from the contention that u/s 6 of the Advocates Act the Bar Council of West Bengal has every jurisdiction to take all steps for safeguarding. the rights and privileges and interests of the Advocate and in exercise of such power the call to cease work was given by the Bar Council, the further defence of the Bar Council is under the facts and circumstances of the case the callfor cease work was quite justified and other methods having failed there was no other way out but to resort to the impugned action calling upon Advocates, to cease work for the purpose of Safeguarding and protecting the interest of the Advocates and such action in fact has’ given results.

16. The respondent No. 9 one .of the members of the Bar Council as also a ‘practising senior Advocate to this Court has also filed an affidavit-in-opposition more or less raising the same contention as the Bar Council, contending, inter alia, that all other. methods having failed the Bar Council had no other alternative but to resort to the impugned action of calling upon the Advocates to cease work to put pressure upon the State Government for the purpose of shifting of the Courts from the dilapidated building to safer? building and such action taken by the Bar Council is within the jurisdiction of the Bar Council as the Bar Council has the power to lake any action u/s 6 of the Advocates Act for protecting the rights, privileges and interests of the Advocates.

17. It has been further contended by the respondent No. 9 not only the. Bar Council has the jurisdiction to call upon the Advocates to cease work for the ‘aforesaid purpose, under the facts and circumstances of the case it was the duty of the Bar Co’uncil to give such a call to the legal fraternity to.gq for a non-violent method which includes cease Work, universally recognised as a legal resort. which has been dishonoured seldom. It has. been further contended by the respondent No. 9 that the records of the Bar Council and the Bar Association High Court will indicate that even the writ petitioners themselves and even their Counsel resorted to such method of cease work for a genuine cause of the legal. fraternity. It has even sought to be contended by the respondent No. 9 that such a right of the Bar Council namely to call cease work for. protection of interest of the Avocates have been developed legally has been constitu- tionally recognised by all members of the Bar and the litigant public and even the judiciary has given honour to the same as it is found that due to such cease work, the Learned Judges have dismissed any case for defanlt.

18. The writ petitioner in affidavit in reply has contended, inter alia, that even if the concerned Court buildings at Howrah and Alipore were in serious condition requiring repair or shifting of the Court, the same did not empower the Bar Council which is a statutory body to give a call” for cease work and thereby compel the Advocates not to dis charge, the duties and obligation which they owe not only towards their clients, but also towards the Court as officer of Court and one wrong cannot be remedied by another wrong specially when the power of the Bar Council are’ circumscribed by statute.

19. It is further contended in said reply the fact that the most of the Advocates accepted such call or such call might have been given for noble cause does not confer jurisdiction on the Bar Council to call upon the Advocates to cease work or to take action against Advocates who defy such call.

20. While Mr. B. C. Roy the Learned Senior Council for the petitioner Nos. 2, 3 and 4 in support of the writ application has mostly confined his submission as to the lack of jurisdiction of the Bar Council being a statutory body to call upon the Advocates to cease work in the name of protecting the interest of the Advocates, the same being in violation of right of an Advocate to practise under Article 19(1)(g) of the Constitution as also Section 14 of the Bar Council Act 1926, Mr. Pal Learned Senior Counsel appearing for the petitioner No. 1 in addition to that has stressed more on the points that the Bar Council in the name of protecting the interest of “the Advocates in purported exercise of power u/s 6(1)(g) and (i) of the Advocates Act cannot compel the Advocates to desist from attending Court and doing their professional work and thereby compelling them to fail in their duties which the Advocates owe not only to their clients but also to the Court is officer of the Court.

21. The sum and substance of the submission of Mr. Roy on behalf of the petitioner Nos. 2, 3 and 4 is that Section 30 of the Advocates Act not having been enforced, the Advocates are entitled to practise as of right u/s 14 of the Bar Council Act 1926 subject only to the limitations provided in the sub-section thereof, but as the limitation contemplated in the said sub-section of the said Section 14 admittedly do not exist in the instant case the Bar Council has no jurisdiction to call upon the Advocates to cease work which infringes the rights of the Advocates to practice as of right u/s 14 of the Bar Council Act.

22. It has been further contended that the language of Section 14(1) of the Bar Council Act 1926. that an Advocate shall be entitled as of right to practise, being plain and simple the same should be given full effect to and said section having no ambiguity at all does not require any construction to give a preferential meaning. Reliance has been placed on a number of decisions of the Supreme Court for the purpose of substantiating that the words of statute having plain meaning should be given effect to and the Courts will not add any words to the same.

23 A It has been further contended that the Advocates Act nowhere expressly or implied-ly has authorised the State Bar Council to prohibit an Advocate to exercise his rights to practise except in exercise of disciplinary powers under Chapter 5 to the said Act to suspend or debar an Advocate for carrying on his profession on proof of misconduct. It has been further contended Mr. Roy that the interpretation which the respondents arc seeking to give to Section 6(d)(i) of the Advocates Act namely, that all actions can be taken by the Bar Council for protecting the interest of the Advocates, is not tenable as the profession is a service oriented profession and the Advocates do not carry out any trade or business and very nature of their profession debar them from withdrawing their service and the Rolls framed by the All India Bar Council do not permit of/withdrawal of the service of the Advocates except on personal ground. It is further contended that Section 6(1)(d) of the Act illustrate the functions of the Bar Council and does not expressly give any power to the Bar Council to interfere with the right of the Advocates to protect. The Section 6(1)(d)(i) required to be construed with reference to the entire scheme of the whole Act and not in isolation and if such a construction is made looking at the entire scheme of the Act, it will appear after granting right to the Advocates to practise as of right u/s 14(1) of the Bar Council Act 1926 and u/s 30 of the Advocates Act, the function of the Bar Council cannot by any stretch of imagination to abrogate such right of the Advocates in exercise of discretion of the Bar Council. It has been further contended that result of reading together of Sections 6(1), 30 and 35 of the said Act is that by express words advocates have given the right to practise the profession by Section 30 and by express words and provide elaborate procedure that right has been made liable to be withdrawn by Section 35 of the Advocates Act. Even this right of suspension in exercise of disciplinary jurisdiction has been given to the Council by express words. Hence Section 6(1)(d) of the said Act, as integral part of the whole scheme of the Act, could not by implication have conferred on the said Council the right to suspend the advocate’s right to practise the profession. Section 6(1)(d) remains purposeful if the words in the section are read literally and hence the words are not required to be construed in a different way. But even if a modified construction of the said section is called for evert then it has to be construed in a manner to avoid apparent contradiction with the purpose of the Act and particularly Section 30 of the Act. That apart if Section 6(1) is read with all the clauses it will be clear that under clause (i) Bar Council is required to function in such a manner which will facilitate the rights and privileges of the Advocates and not in negation thereof.

24. Referring to the various judicial decisions wherein the attributes of the legal profession have ben explained and standard of ethics and etiquettes to be followed by the lawyers has been laid down, it was been submitted that an Advocate is ordinarily bound to accept the brief and once he accepts the brief he cannot refuse to act on behalf of the client and cannot withdraw from a case expert in a special case and failure of an Advocate to perform such duty is itself a misconduct and therefore in the name of protecting the interest of the Advocates, in exercise of power u/s 6(1)(d) of the Advocates Act, the Bar Council cannot compel the Advocates to cease work and to prevent them from performing their duties to their clients and also to the Court, It has also been submitted that the Advocates carry on their profession to earn their livelihood although the profession basically is to render service to the people and cause of justice, and therefore, such a right to life which includes the right to livelihood which in the instant case is the right to practise the profession as an Advocate to sustain the life cannot be taken away in the manner aforesaid in the name of protecting the interest of the Advocates.

25. It has been further contended that the normal tenure of Bar Council being admittedly till 20th July, 1993 and under the proviso to Section 8 of the Advocates Act the Bar Council of India having the power only to give one time extension for six months from the date of expiry of the tenure, the Bar Council of India in the instant case, as claimed by the respondent, could not have extended the lifetime of State Bar Council beyond 28th January, 1994.

26. Mr. Samaraditya Pal the Learned Counsel appearing for the petitioner No. 1 has submitted, inter alia, that the Bar Council is neither a trade union nor an association of lawyers nor a representative body of lawyers and the lawyers whose names are borne in the roll of Bar Council is a statutory body constituted mainly for the purpose of regulating the qualification and procedure for entering into the legal profession by the lawyers and for the purpose of maintaining high standard in the profession and the weapon of strike or adoption of any other similar trade union like activities is ultra vires the letter, spirit and scheme of the Advocates Act 1961 and the role of the Advocates.

27. It has been further contended by Mr. Pal that the interest of the Advocates does not admit of a narrow, selfish and blinkered, interpretation and the Bar Council in the name of protecting the interest of the Advocates cannot resort to a method which will result in obstruction in the administration of justice. It has been further contended that admittedly an advocate has a duty to Court as an officer of the Court, to assist the Court in the Administration of justice and therefore the personal interest of the Advocates can never override the larger interest of administration of justice and administration of justice cannot be held to ransom for ventilating the grievances of the lawyers against the executive and for obtaining redress from the executive, as it is sought to be done in the instant case and therefore even if the grievance of the Bar Council.in the instant case against the State Government might have been justified, the same certainly does not justify resorting to illegitimate course of action, compelling the Advocates to desist from attending the Courts and thereby obstructing the administration of justice by paralysing the Courts. It has been submitted by Mr. Pal that Judicial Review and the very judicial sustem is the basic structure of the constitution and access to justice and judiciary is precondition for rule of law and under such circumstances the Bar Council which is a Statutory Body cannot take a resolution which blocks the access to justice. It has been contended that the call to cease work was wholly unreasonable and arbitrary as the same paralysed the administration of justice and blocked access to the same, and when it is not within the power of the Bar Council to ensure that the right and interest of the litigants will be protected even in absence of lawyers. It has been further contended by Mr. Pal that in any event assuming that the Bar Council might possess such a power to give a call to all Advocates to cease work for a particular cause, the same can never be binding upon an Advocate who is free to decide whether he would respond to such call or not for the particular cause and the same can never be misconduct as such an Advocate has the right to freedom of thought and expression.

28. The Bar Council of West Bangal and some other respondents supporting the stand of the Bar Council in their submission have not disputed the facts that the Bar Council being a statutory body its powers are circumscribed by the statute. But all of them have submitted, inter alia, that the Bar Council does possess the power even to call upon the Advocates to cease work for the purpose of protecting the interest of the entire legal fraternity in exercise of its function u/s 6(1)(d) and (i) of the Advocates Act and all of them have justified such action of Bar Council by contending, inter alia, that such a measure was resorted to by the Bar Council as a last resort, for protecting the interest of the legal fraternity and as all other methods failed to rouse the State Government into action.

29. Mr. Bholanath Sen, the Learned senior Counsel appearing for the Bar Council of West Bengal has’submitted, inter alia, that the Bar Council is a body corporate and in overall .charge of looking into the interest of the Advocates on its rolls starting from study of law, hs syllabus, enrolment of the Advocates, causing for the Advocates on its roll by succour and indigent persons and similar other activities. In the instant case the failure of the State Government to take appropriate action, for shifting to the Court from the existing dangerous premises to a safer one jeopardised the interest of the Advocates and therefore the Bar Council has every jurisdiction u/s 6(1)(d) and (i) to do al! things necessary for protecting the right, interest and the privileges of the Advocates including calling upon the Advocates to cease work.

30. It has been further contended by Mr. Senthat the resolution dated 3rd May and 6th May, 1994 calling upon the Advocates to cease work from 10th May, 1994, 16th May, 1994 was a measure of last resort as all attempts of the concerned Bar Association and lawyers of the Alipore and Howrah Court also the representation of the Judges whereof fetl on the deaf car and the judges of the said Court and the Chief Justice of the High Court had no power to compel the shifting of the Court. It has been further contended that the Bar Council of West Bengal is stated within the meaning of Article 12 of the Constitution and therefore every Act of the State must be presumed to be informed with reasons and in public interest and whosoever seeks to displace this presumption has a heavy onus to discharge which has not been done in the instant case by the writ petitioners. Referring to the various events chronologically which ultimately led to cease work Mr. Sen has contended further that it will appear from materials on record in spite of repeated resolutions and representations by the different Bar Associations the State Government failed to act and when it came to be known from the Registrar of High Court that no- positive assurance in writing as to the shifting of the two Courts could be given by the State Government, only thereafter the resolution for cease work was taken. It has been contended by Mr. Sen that it was not possible for the legislature to visualise and accordingly to enumerate the specific action that the Bar Council could take in the eventualities that might arise in the course of time for protecting the rights, privileges and interests of the Advocates. The instant case the situation was singular; the Advocates were denied safer places of work and the Bar Council found that exhortations were futile and then in exasperation decided upon the cease work for a limited period with prior notice that if in the time anything meaningful is done, the cease work will not take effect. Such decision therefore, was taken in the interest of all Advocates to ensure that the Bar Council was striving for and therefore, unless, that was binding or the Bar Council had the authority to punish such a violation, it would be meaningless step and it would hardly be a method to persuade the Government to take action. It has been further contended that each of the function in sub-section (1)(a) to (1)(h) of Section 6 of the Advocates Act binds each and every Advocates on the roll of the Bar Council. It has been further contended that if the Bar Council instead of resorting to such method would have allowed the situation to prevail in Howrah and Alipore Court to continue, the result would have been in the aforesaid Courts no work could been done while work in other Courts would have gone on which could not have advanced the cause of justice. The Bar Council to ensure safe place of work for a lawyer and cause of justice was compelled to resort to such an action to put pressure upon the State Government. It is further contended that the Bar Council’s resolution taken within its jurisdiction in the interest of the Advocates and to advance the cause of administration of justice is certainly binding upon all Advocates and cannot be violated by any Advocate on its roll and such a resolution of the Bar Council will have the force of a rule. It has also been contended that by the impugned action of the Bar Council no injury or harm has been caused to anybody as the object of such actions were necessary in the interest of the Advocates, and the litigant public, the employees of the Court, the judges of the Courts and therefore the impugned action should be upheld by the Court.

31. Mr. R. N. Das the Learned Counsel appearing for the respondent No. 25 has submitted, inter alia, that u/s 6(1)(d)(1) of the Advocates Act, the Bar Council has the power to take any action which is considered necessary to safeguard the rights, privileges and interest of Advocates OR its roll and in the instant case the impugned action was taken by the Bar Council as the same was considered necessary by the Bar Council for safeguarding the rights privileges and interest of the Advocates. It has been submitted by Mr. Das when powers are granted to some public body like Bar Council body to enable it to carry out some functions of public nature, more latitude should be allowed in the exercise of such power which has been granted and the Courts should not restrict use of such power. In the instant case as all other methods to provoke the State Government to take action failed, the Bar Council of West Bengal in exercise of its statutory power fett that cease work will be the only method to protect the interest of the Advocates and the same therefore, could not have been violated by any Advocate. It has been contended that the cease work for enforcing a reasonable demand is not refusing to do the work of a litigant and an Advocate may very often temporarily have to stop work for a genuine cause. It has been further contended that the Bar Council of West Begal has the power to give a call for cease work and certainly has the power to enforce such decision by compelling the Advocates to carry out the decision of the Bar Council. It has also been submitted that the cause behind the cease work was absolutely bona fide and cannot be said to be unreasonable and the same was for a higher cause for securing justice to the people. The cease work was called for securing justice and upholding the rule of law and the constitution and as such it was neither illegal nor unconstitutional. It has been further contended by Mr. Das the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority and if the decision is within the confine of reasonableness it is no part of the Court’s function to took into its merits and whether a particular policy is wise or foolish the Court is not concerned.

32. Mr. Biswaranjan Ghosal appearing in person has contended inter alia, that an intimate study of the statutes relating to the legal practitioner starting from the the Letter Patent to the Advocates Act goes to substantiate that prior to coming into operation of the Advocates Act, High Court was the enrolling and disciplinary authority of the legal practitioner but there was none to look after their interest, which has been taken care of for the first time in the Advocates Act u/s 6 thereof: Relying on the decision of the Supreme Court in the case of Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, it has been contended by Mr. Ghosal that it has been the judicially recognised that the Bar Council is to safeguard the rights, privileges and interest of the Advocate and is the satinet of professional code of conduct and is vitally interested in the rights, privileges of the Advocates as well as the purity and dignity of the profession and since in the instant case it is the Bar Council which thought that the Advocates could protect their interest by ceasing work, the question of considering such act of an advocate as a rnisconduct could not arise, the Bar Council. itself being the disciplinary authority. It has even sought to be contended by Mr, Ghosal that no prejudice would be caused to any litigant because of such cease work as a practice has developed by convention that no Court will pass any order to the prejudice of a litigant for non-appearance of an Advocate in response to call of a cease work. It has been further sought to be contended that no interference is called for by this Hon’ble Court as there was no over tact on the part of the Bar Council because of condemnation of the Advocate who defied the call of cease work in as much as such condemnation is not a reprimand. It has been further contended by Mr. Ghosal that such a method for protecting the interest of the Advocate namely cease work has obtained universal recognition being a non-violent and non-co-operation movement and such a me thod was resorted to on very many occasion in the past by the Bar Council, in which even the petitioners and their Advocates participated. It has been further submitted that once the power of the Bar Council to call for cease work in accepted, the same inevitably leads to the conclusion that Bar Council has also the power, to enforce such resolution. It has further been contended that cease Work does not affect the administration of justice as the Court can dispose of a matter looking at the records without the assistance of a lawyer or hearing a litigant in person.

33. Mr. Arun Prakash Chatterjee the Learned Counsel appearing for Bar Council of India has also contended that the writ application is premature as none of the petitioner is really affected by the impugned resolution of the Bar Council. It has been further contended, inter alia, by Mr. Chatterjee that the Bar Council being a statutory body is the best judge to decide what steps are necessary to be taken for securing and safeguarding the interest of the lawyers and such a, decision of the Bar Council therefore, will be binding upon the Advocates and cannot be interfered with by the Court. It has been submitted at least the Bar Council certainly has the power to condemn the Advocates who have violated the decision of Bar Council which was thought by the Bar Council to be in the best, interest of the Advocates and such a power therefore, should not be interfered with in as much as interference with -such power of the Bar Council by Court will lead to a situation where the Bar Council will not be able to enforce any decision. Mr. Chatterjee in course of his submission very fairly has expressed his own doubt as to whether the violation of such a resolution by an Advocate would amount to misconduct calling for disciplinary action. But at the same time he has submitted that the Court need go into such question as no such action has been taken by the Bar Council and the same is a matter to be decided by the Disciplinary Committee of the Bar Council.

34. Mr. Biswaroop Gupta, the Learned Counsel appearing for the Chairman of the Bar Council of West Bengal has submitted, inter alia, the Bar Council is a body corporate and in overall charge of looking after the interest of the Advocates on its rolls starting from study of law, its syllabus, enrolment on passing the law examination as required, caring for the advocates on its rolls inter alia by succour to indigent persons and similar other activities.

35. Section 6 of the Advocates Act, 1961 gives the functions of the Bar Council.

36. Section 7(d), (1) and (m) are similar functions of the Bar Council of India to those in the case of the State Bar Council as in Sections 60(1)(d), (h) and (i).

“To do all .other things necessary for discharging the aforesaid functions” would obviously include things that is acts and actions in addition to those in the foregoing sub-sections necessary for achieving the objectives therein.

37. The resolution of the Bar Council of 3rd May, and 6th May, 1994 calling for cease work from 10th May, 1994 to 16th May, 1994 was as a measure of last resort.

38. The exhortation by the concerned Bar Associations and lawyers of the Alipore and Howrah Courts as also the representations by the fudges thereof fell on, as it were, deaf ears.

39. The Judges of these concerned Courts or for that matter the Chief Justice of the High Court had no administrative or other power be compel the shifting of the Court rooms to safer places pending the construction of safe buildings to house the Courts or to cause construction of privies or other conveniences. There had been death and the conditions were absolutely appalling.

40. It was, therefore, in order to safeguard the right of the advocates on the roll of the Bar Council and the privilege to address the Courts in safe buildings, that the cease work resolution was taken.

41. Admittedly the Bar Council of West Bengal is State within the meaning of Article 12 of the Constitution of India. Every Act of State must be presumed to be informed with reason and in public interest. Whosoever seeks to displace this presumption has a heavy onus to discharge.

42. Section 6 of the Advocates Act lists within the functions of the Bar Council the doing of all other things necessary for discharging the functions from sub-sections l(a) to l(h). It was not possible for the legislature to visualise and accordingly to enumerate the specific actions that the Bar Council could take in the eventualities that might arise in course of time. The situation was singular. The Advocates were denied a safe place of work. The Bar Council which is State within the meaning of Article 12, found that exhortations were fruitless and in exasperation decided upon the cease work for a limited period with advance notice that if in the meantime anything meaningful was done, the cease work would not take effect. It was in the interest of all Advocates to ensure what the Bar Council was striving for and unless the action proposed was binding and unless the Bar Council had the authority to punish a violation, it would be a meaningless step and would hardly be a method of persuading the Government to take action.

43. The Bar Council had, therefore, to ensure safe place of work for all lawyers, not only the Lawyers affected in particular Courts, and also, since lawyers were adjunct of the administration of justice, the Bar Council had to ensure that the cause of-administration of Justice did not suffer.

44. Section 6(1)(i) of the Advocates Act empowering the Bar Council to do all other things necessary for discharging the functions in sub-sections (a) to (h), is itself a function of the Bar Council. It is as much binding on the advocates who are on the roll of the Bar Council as any action of the Bar Council in discharge of any of the other functions in Section 6.

45. The action taken was for safeguarding the right, privilege and interests of the Advocates. The rights and privileges of a section of Advocates in the State had been very seriously and severely affected and it cannot be submitted that it did not concern the Advocates practising in other Courts in the State or the State Bar Council. The action taken was thus in the interest of the. Advocates, for the litigant public, the subordinate judiciary, the employees of those Courts and all other persons frequenting the affected Courts. It in fact advanced the cause of administration of justice.

46. The resolution was binding on all Advocates and is informed with reason and also in public interest.

47. Before going into the merits of the controversy, it has become necessary to deal with certain preliminary points raised by some of the respondents, namely there being no overact on the part of the Bar Council of West Bengal against the writ petitioners and the writ petitioner not having suffered any prejudice by the impugned resolution, they have got no cause of action for moving the instant writ application and the same is therefore, not maintainable. It has also been contended that so far as the resolution dated 3rd and 6th May, 1994 are concerned the same already spent its force as subsequently the cease work was withdrawn by the Bar Council. So far as the resolution dated 11th May is concerned by which the Bar Council has condemned the action of the Advocates who have defied the resolution of the Bar Council, the same does not prejudice the writ petitioners as they are not punished and so far as the resolution dated 13th May is concerned it is only ultimately for the Disciplinary Committee of the Bar Council to consider whether there was any misconduct on the part of such Advpcates if the Bar Council refers the matter to the Disciplinary Committee which has not been done as yet and the writ application therefore, is also premature.

48. It may be noted in this connection at the time of admission of the instant writ application similar argument was advanced on behalf of the respondent and this Court by order dated 3rd June, 1994 while extending the interim order has already held that there was an overtact on the part of the Bar Council and therefore, the petitioners are entitled to challenge the same.

49. But since the point has been elaborately argued again on behalf of the respondents such point is being dealt with once again.

50. The aforesaid contention of the respondents that the petition is not maintainable or premaure for the reason as aforesaid is not tenable. It is true that the petitioners came before this court at a stage when the show cause notice was not yet issued against them. But the fact remains that by the resolution dated 11 th May 1994 the Bar Council of West Bengal condemned the action of such Advocates who defied the call given by the Bar Council for cease work and attended Courts and by the resolution dated 13th May, 1994 Bar Council decided to issue show cause notice against such Advocates for the purpose of referring the matter to the Disciplinary Committee of the Bar Council and such resolution of the Bar Council were very much published in the newspapers.

51. u/s 35 of the Advocates Act when the State Bar Council on receipt of a complaint or otherwise has a reason to believe that any Advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee. In the instant case although by the impugned resolution dated 13th May 1994 the Bar Council did not resolve that it had already reason to believe that the Advocates, who defied the call of the Bar Council for ceasing work have committed other misconduct, it resolved that show cause nonces be issued against such Advocates and in the event the State Bar Council has reason to believe that such Advocates are guilty of other misconduct the case may be referred to the Disciplinary Committee.

52. The Bar Council already by its previous resolution dated 11th May 1994 condemned the action of such Advocates who defied call for cease work. Thereafter such a resolution dated 13th May 1994 was passed* deciding to issue such show cause notices against such Advocates. The Bar Council thus decided to initiate a proceeding against such Advocates for the purpose of reference to the disciplinary committee of the Bar Council u/s 35 of the Act. Such action on the part of the Bar Council therefore certainly amounts to an overtact creating reasonable apprehension in the mind of such Advocates that they would be penalised by the Bar Council. That apart the very resolution condemning Advocates and thereafter deciding to issue show cause notice against them followed by newspaper publication thereto certainly amount to threat to the reputation and prestige of such Advocates who defied such resolution including writ petitioners. It cannot therefore, be said that the apprehension expressed by the writ petitioners in the writ petition is unreal or unreasonable. The petitioners therefore can certainly maintain the writ application at this stage to prevent the Bar Council from creating any further damage to their reputation and from affecting their right to practice particularly when the very jurisdiction of the Bar Council to give such a call for cease work and to enforce the same against Advocates is under challenge. The writ application therefore. cannot also be said to be premature.

53. There is also substance in the submission of learned Advocates appearing for the petitioners that the resolution dated 11th May and 13th May 1994 will clearly indicate that the Bar Council already made up its mind at least prima facie that other misconduct has been committed by the petitioner by defying the said resolution. By the resolution dated 11th May, 1994 the Bar Council already having condemned the action of such Advocates, on 13th May 1994 the Bar Council could not have decided to issue show cause notices unless at least it was prima facie of the view that action of such Advocates amounted to other misconduct requiring reference to the Disciplinary Committee. That apart even a threat of an action creating reasonable apprehension in the mind of a person so threatened, is actionable. In the case of Rookes v. Barnard reported in (1964) I All ER 367, it was held by the House of Lords that even a threat to a person to do an unlawful act made with the intention of damnifying the plaintiff whereby loss across to him is to be treated as intimation and will be actionable and there is no distinction between a threat to do a tortious act, to, and a threat to break a contract with, the person threatened. In the case of J.T. Streetford v. Lindley reported in (1964) 3 All ER 102, it was held by the House of Lords that even inducement to commit a breach of contract is actionable.

54. As to the merits of the controversy between the parties”, it is pertinent to note, that in the instant case the Court is concerned only the existence or lack of jurisdiction of Bar Council to give call for cease work and to compel the Advocates on its roll to follow such resolution and the Court is not concerned with the question whether an association of Advocates can call for such a cease work or whether an Advocate .individually or collectively has the right to strike work.

55. While (examining, the issues which have been raised before this Court, it is necessary to keep in mind that the Bar Council of West Bengal or for the matter of that any State Bar Council or Bar Council of India is neither an Association nor a Guild of the Advocates nor the same is a Trade Union. The Bar Council of West Bengal and for the matter that all State Bar Council and All India Bar Council admittedly are statutory bodies created and/or reconstituted under the Advocates Act 1961. The fact that the Bar Council being a Statutory body its powers and functions are circumscribed by the provi- sions of the Statute as asserted by the peti-. tioners, is not really disputed by the respondents. The fact that the Bar Council has also not been invested specifically with the power of giving a call to the members on its roll to cease work either under the Advocates Act 1961 or under any other statute is hot also disputed by the respondent. But the respondents have contended inter alia, that one of the functions of the Bar Council u/s 6(1)(d) of the Advocates Act is to safeguard the rights, privileges and interest of Advocates on its roll and u/s 6(1)(i) of the said Act, it has the power to do all other things necessary for discharging the functions enumerated in the other clause including clause (d) of sub-section (I) of Section 6 of the said Act. It has been contended that to protect the rights, privileges and interest of the Advocates on its roll the Bar Council has the power under aforesaid clause (i) of subsection (1) of Section 6 to do all other things necessary to discharge such functions, and therefore it had the power to give call for cease work as the same bona fide was thought necessary by the Bar Council to protect the interest of the Advocates, all other methods to protect the interest of the Advocates, because of the failure of the State Government to shift the Courts from the dilapidated building to a safer building, having failed to obtain result.

56. Assuming there is scope of such interpretation of Section 6(1), (d) and (i) of the said Act as it is sought to be made by the respondents, namely the impugned action resorted to by the Bar Council having been thought to be necessary for protecting the interest of the Advocate the same was permissible and the Bar Coundl had the jurisdiction to take such action, then the question obviously comes in how far the Bar Council can go in the matter of taking any action or doing anything which is considered necessary for protection and safeguard the interest the rights and privileges of the Advocates. In doing such things what is thought by the Bar Council to be necessary, can it do such a thing which although may be thought to be necessary by the Bar Council for protecting the interest of the Advocates and their rights and privileges, which also takes away the statutory or constitutional right of an Advocate even though may be temporarily? The answer in my view will be in the negative. Such power to the Bar Council, which apart from being statutory body is also an authority within the meaning of Art. 12 of the Constitution, cannot be unbriddled and uncontrolled, but like all state actions must be free from arbitrariness, must be reasonable. The Bar Council being a statutory body while exercising its functions u/s 6(1), (d) and (i) of the Advocates Act while doing all things which are necessary for discharging its various other functions enumerated in different clauses of sub-section 1 of Section 6 including safeguarding the rights, privileges and interest of the Advocates on its roll cannot do such things which are illegal, or which are against the public policy or against the law of the land, which are unreasonable, arbitrary or which adversely affects the livelihood, right and interest of other persons including Advocates, In my view in the name of safeguarding the rights, privileges and interests of the Advocates on its roll the Bar Council cannot certainly do something which will take away, even though temporarily, the statutory and the constitutional right of an Advocate to practise, except under the provi-i sions of Section 35 of the Advocates Act.

57. u/s 30 of the Advocates Act although the right of an Advocate to practise in all Courts Tribunal and Authorities as of right is protected, the said section has not been enforced as yet. But u/s 14 of the Bar Council Act 1926 such right of an Advocate is protected. Under the aforesaid section an Advocate shall be entitled as of right to practise in the High Court of which he in an Advocate and before any other tribunal or person legally authorised to take evidence and before any other authority or person before whom such Advocate is by or under the law for the time being in force entitled to practise. The said section of the Bar Council Act 1926 is still not repealed.

58. Right of an Advocate to practise as of right under said Section 14 of the Advocates Act is subject to the restrictions provided in Section 9(4) of the said Act and sub-section (2) of Section 14. Sub-section (2) of Section 14 provides where rules have been made, by” any High Court within the meaning of clause (24) of Section 3 of the general clauses Act, 1897, or in the case of a High Court for which a Bar Council has been constituted under this Act, by such Bar Council u/s 15, regulating the conditions subject to which Advocates of other High Courts may be permitted to practise in the High Court, such Advocates shall not be entitled to practise therein otherwise subject to such conditions. Section 9 of the Advocates Act provides that the Bar Council may with previous sanction of the High Court may make rules to regulate the admission of persons to the Advocates of the High Court provided that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person its discretion. Sub-section (2) of the said section provides that without prejudice to the generality of the foregoing powers, such rules shall provide for the matters enumerated in the sub-clauses (a) to (e) therein. None of such exceptions either u/s 4 of the said Act or u/s 9(2) of the said Act or under subsection (2) section 14 empowers the Bar Council to affect such right of an Advocate to practise as of right by compelling an Advocate to cease work. Under the Advocates Act 1961 the Bar Council of India no doubt has the power to regulate the practise of legal profession by prescribing qualification for admission of an Advocate in the profession by laying down the standard of professional conduct and etiquette for Advocates, by laying down the procedure to be followed by the Disciplinary Committee of the State Bar Council of India and various other measures.

59. The State Bar Council has regulatory power under the said Act over the practise of profession of an Advocate in a limited manner, namely, by admitting person as advocate in its roll; by preparing and maintaining such roll; by entertaining and determining case of misconduct against Advocates on its roll. It has also the Disciplinary power upon the Advocates on its roll u/s 35 of the Advocates Act by referring the case of an Advocate to the Disciplinary Committee of the Bar Council if it has reason to believe that any advocate is guilty of professional or other misconduct and by punishing the Advocate for such misconduct if found guilty by Disciplinary Committee, like reprimanding the Advocates, by suspending the Advocate from practice for such period it deems fit; by removing the name of the Advocates from the said roll of Advocates.

60. An examination of the Bar Council Act 1926 and the Advocates Act 1961 will clearly indicate that the State Bar Council has no power or jurisdiction to take away the right of an Advocate to practice as of right .either temporarily or permanently or to compel him not to practice even for a day or affect his right to practise in any manner whatsoever except by way of exercising, disciplinary jurisdiction u/s 35 of the Advocates Act 1961,

61. Such being the position of law and admittedly, the State Bar Council also not having been specifically invested with any power to call upon the Advocates on its roll to cease work or to compel an Advocate to cease work, to read the existence of such power impliedly under clause (i) of sub-section (1) section (6) of the Advocates Act will be against all canons of interpretation particularly when the effect of the same would be negation and affectation of statutory right of Advocates to practice as of right.

62. Such call for cease work by the Bar Council and compelling an Advocate to cease work not only amounts to negation of such statutory right of Advocate u/s 14 of the Bar Council Act to practise as of right, the same is also an invasion of the fundamental right of an Advocate as guaranteed under Art. 19(1)(g) of the Constitution of India under which the freedom to practise any profession is guaranteed subject to reasonable restrictions that may be imposed, In exercise of such fundamental right every Advocate has the freedom to practise as a lawyer, Subject to reasonable restrictions that might be imposed. The only reasonable restriction upon such freedom and right of an Advocate is provided in the aforesaid provision of Section 14 of the Bar Council Act 1926 and in the various regulatory measures including disciplinary power which could be exercised by the Bar Council under the Advocates Act 1961. There is no other provision either in the Advocates Act or in the Bar Council Act or in any other legislation or enactment empowering the Bar Council to affect such right of an Advocate to practise as of right either by compelling him to cease work or in any other manner whatsoever.

63. The fact that the right to life as guaranteed under Art. 21 of the Constitution includes right to livelihood is now beyond any doubt because of the pronouncement of the Apex Court in its several decisions. An Advocate practises the legal profession also for earning his livelihood and the same is also the case for the writ petitioners and therefore such action of the Bar Council to give such a call for cease work and to compel an Advocate to cease work for some period also certainly affects the right to life of the petitioner as guaranteed under Art. 21 of the Constitution as the same affects his livelihood, without due process of law the same being not sanctioned by any provision of the statute. Under such circumstances the Bar Council of West Bengal being a statutory body while doing any acts which it thinks necessary for protecting and safeguarding the interest, rights and privileges of the Advocates, cannot therefore, in my view have the jurisdiction to call upon the Advocates on its roll to cease work or to compel the Advocates to cease work or to do any other Act which thereby affects such legal and constitutional rights of Advocate to practise as of right and his right to livelihood.

64. The fact that vast majority of the Advocates supported such call and have not objected to the same is hardly relevant for determining the question whether the Bar Council has such jurisdiction or not. The Bar Council admittedly being a statutory body and not being an Association of an Advocate or a guiltd or a Trade Union its powers and functions are strictly circumscribed by the statute itself and if such a jurisdiction is lacking, it being a statutory body cannot be invested or conferred with such jurisdiction ‘ by consent. It is pertinent to note that impugned resolution of the Bar Council calling upon Advocates on its roll to cease work is also not a legislation or enactment curtailing the right of the Advocates to practise as of right u/s 14(1) of the Bar Council Act. The fact that the aforesaid resolution of Bar Council does not prevent any advocate to practise permanently but only for a limited period or for a day only, again is not relevant. The fact remains such action of the Bar Council amounts to negation and affectation of the right of Advocates to practise as df right u/s 14 of the Bar Council Act, as also his right as guaranteed under Art. 19(1)(g) of the Constitution and Article 21 of the Constitution and therefore, in the name of safeguarding the interest of an Advocate on its roll, the Bar Council being a statutory authority cannot have the jurisdiction to resort to any method by which the Constitutional and statutory right of an Advocate is curtailed or affected in any manner.

65 The expression used in Section 14(1) of the Bar Council Act that the Advocates have right “to practise as ofi right” is significant and the only connotation of the same can be that the right of an Advocate to practise cannot be affected otherwise than by way of express provision of a valid law. Since no such right has been explicitly reserved in the Advocates Act 1961, the Bar Council of West Bengal by a resolution could not have called upon the Advocates on its roll to cease work. It has been rightly been contended by the learned Counsel appearing for the petitioner that the meaning of Section 14(1) of the Bar Council Act 1926 being absolutely clear and unambiguous, the same requires no interpretation and the plain language in the said section that an Advocate shall be entitled as of right to practise has to be given full effect and clear meaning. No preferential meaning or interpretation can be given1 to such plain words.

66 Such proposition of law is well settled. But if any authority is needed in this regard, the decisions of the Supreme Court in the case of Kehar Singh and Others Vs. State (Delhi Administration), ; in the case S.C. Railway v. Workers Union reported in AIR 1989 SC para 6 (sic); in trie case of Commissioner of Income Tax, Assam and Nagaland etc. Vs. Shri G. Hyatt, ; in the case of The State of Orissa Vs. Sudhansu Sekhar Misra and Others, and the decision of the English Court in the case of Duport Steels Ltd. v. Sirs reported in (19SO) 1 All ER 529 and 542 may be referred to.

67 In the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, Supreme Court while interpreting the words “every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court” as contained in the Supreme Court Advocates (Practise in High Court) Act 1951, held that such a statutory right cannot as a matter of Constitution be taken to be controlled by reference to some other rules and’ unless expressly reserved by the Act itself, such right could not be lawfully interfered with. It was further held by the Supreme Court in the said case that the expression to practise as of right cannot be given any restricted meaning because no such power is preserved and contained in the Act and such right can be restricted only by some other provision of the same statute and not even by rules made thereunder. In the case of Devata Prasad Singh Chaudhuri and Others Vs. The Hon’ble The Chief Justice and Judges of the Patna High Court, , the Supreme Court while explaining the ratio of its decision in the aforesaid case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, held, unless the power is expressly reserved by the statute, no rule can be made repugnant to the right to practise as of right. Application of the said principle laid down by the Supreme Court in the aforesaid cases, in the instant case will inevitably lead to the conclusion that such right of an Advocate to practice as of right not having been specifically restricted either under Bar Council Act or the Advocates Act except in the manner indicated in the said Acts by specific provision of Act, the same cannot be restricted in any other manner and therefore, the Bar Council has no jurisdiction to compel an Advocate to cease work. Section 6(1)(d)(i) really being functions of the Bar Council and not having made any specific provision for affecting the right of an Advocate to practise as of right, such a power of Bar Council to compel an Advocate to cease work cannot be implied in Section 6(1)(d)(i) of the Act.

68. In the absence of express words, by employing no principle of construction the State Bar Council may be deemed to have been conferred with the power to compel Advocates to cease work and therefore interferes with right of the Advocates to practise. It has been submitted by the respondents that the very’object’ of the Advocates Act must be read as having conferred such power on the State Bar Council. To interpret Section 14(1) of the Bar Council Act, 1926 or Section 30 of the Advocates Act, 1961 one cannot look into the ‘object’ or underlying policy of the Advocates Act. When words of a section are capable of two meanings only then such aid may have to be taken. But where the language is plain and the meaning of the words are unambiguous such interpretation is impermissible. Reliance may be placed on the decisions of the Supreme Court in the case of:

(1) M.K. Ranganathan and Another Vs. Government of Madras and Others, . Kanai Lal Sur Vs. Paramnidhi Sadhukhan,

(3) Thakur Amar Singhji Vs. State of Rajasthan, and

(4) Commissioner of Income Tax, Patiala and Others Vs. Shahzada Nand and Sons and Others,

69. Section 6(1) illustrates the functions of a State Bar Council and does not, by express words, state anything about the right of the Bar Council to interfere in any way, with the Advocates right to practise.

70. The language of Section 6(1)(d) has to be construed with reference to the scheme of the whole Act and taking all of its parts together. In the case of O.P. Singla and Another Vs. Union of India (UOI) and Others, the Supreme Court held (para 17) that “one must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other interrelated provision becoming otiose or devoid of meaning.”

71. If Section 6(1) has to be read as part of the whole scheme then Section 6(1) has to be read along with Section 30 (although it has not come into force) and Sections 35 and 36 of the same Act.

72. An examination of the scheme of the Advocates Act also does not permit the interpretation which is sought to be given by the respondent to Section 6(1)(d) and (i) of the Advocates Act. If Section 6(d) of the said Act is read along with Section 30 and Sections 35 and 36 of the said Act the same will abundantly make it clear the said interpretation sought to be given by the respondents is not tenable. Section 30 of the Advocates Act which contains in Chapter IV of the said Act dealing with “Right to Practice” (although still not has come into force) grants the right to all Advocates to practise as of right in an identical manner as in Section 14(1) of the Bar Council Act. Such right to practise as of right therefore, has been given by express provisions of Act. But express provisions have also been made in the Act for restricting the same in Section 35 of the said Act, which contains in Chapter V of the Act, dealing with conduct of Advocates under which such right can be interfered with by imposition of different penalties in case of misconduct in exercise of disciplinary jurisdiction. Examination of other provisions of the Act will indicate that after providing for constitution and re-constitution of Bar Council in the Act, various provisions have been made in the Act by which the Bar Council can exercise regulatory measures for legal profession in various manner, like laying down procedures for enrolment, requisite qualification for legal profession and for maintaining high standard and ethics in the profession by exercising disciplinary power and for protection of the right and interest of the Advocates by arranging seminar, legal aid, by publishing journals, by providing financial assistance etc. Such being the scheme of the Act and S. 6(1) (d) and (i) of the said Act being a part of the same cannot be read in isolation of the other provision of the Act and it cannot be construed that S. 6(1)(d)(i) of the Act by implication confers upon the Bar Council right to interfere with to right of Advocates to practise by compelling him to cease work which has been given to him by express provision of Section 14(1) of the Bar Council Act and Section 30 the Advocates. Act. Such interpretation of Section 6(1)(d) and (i) will lead to a manifest contradiction with the other provisions of the Act and therefore, such an interpretation is to be avoided to save such contradiction and the same is to be interprted in a harmonious manner. Such principles of the interpretation of statute has also been approved by the Supreme Court in the case of M. Pentiah and Others Vs. Muddala Veeramallappa and Others, . If Section 6(1)(d) and (i) of the said Act is to be read together with the aforesaid other sections and each of such section and sub-section is given a meaning, the power of the Bar Council to do all things necessary for safeguarding the rights, privileges and interests of the Advocates Act can only be understood to mean something other than interfering with the statutory and fundamental right of an Advocate to practise.

73. The respondents by referring to the background for giving the impugned call for cease work in details have contended that because of the inaction on the part of the State Government to take appropriate action for shifting the Court rooms from the dilapidated dangerous building to a safer one, the Bar Council for the purpose of safeguarding the interest of the Advocates which was seriously jeopardised because of holding of such courts in unsafe building, had no other way but to give such call for cease work by way of last resort all other methods through negotiation etc. having failed. The respondents thus have tried to contend that the end jutifies the means and has submitted in the instaht case the purpose for which the Bar Council to achieve by the cease work being justified, there should be no scrutiny by the Court of such decisions of the Bar Council.

74. Such submission of the respondents no doubt is attractive, but is not tenable. The question to be decided by the Court is not whether the purpose which the Bar Council sought to achieve by such call for cease work was a noble one or not, but the question to be determined by the Court is whether the Bar Council being a statutory body has the jurisdiction to adopt such means, which it did, to achieve such purpose. Such questions have been raised by some practising Advocates of, this Court as the Bar Council has not stopped short after taking such resolution calling upon the Advocates to cease work, but has also sought to penalise the Advocates who have defied such resolution. If such Advocates therefore, under such circumstances challenge the jurisdiction of the Bar Council to call upon the Advocates to cease work and to compel them to cease work the Court can certainly enquire whether such jurisdiction is there. Powers and function of Bar Council are circumscribed under the provision of statute itself and therefore for finding out whether such jurisdiction exist or not the provisions of the statute have to be looked into. If such power does not exist, whether by the impugned action a noble purpose has been achieved or such act was necessary for maintaining the unity of lawyers, in my view is immaterial. The Advocates on the rolls of the Bar Council are not members of the Bar Council nor the Bar Council is an Association or guild of the lawyers nor the same is a Trade Union and therefore unity of the lawyers in different movements cannot be statutory concern of Bar Council, no provisions of any statute having provided for the same, although the same very much may be concern for the Bar Associations. Result of reading together Sections 6(1), 30 and 35 of the said Act is that by express words Advocates have been given the right to practice the profession by Section 30 and by express words and providing elaborate procedure that right has been made liable to be withdrawn by Section 35 of the Advocates Act. Even this right of suspension in exercise of disciplinary jurisdiction has been given to the Council by express words. Hence Section 6(1)(d)(i) of the said Act, as integral part of the whole scheme of the Act, could not by implication have.conferred on the said Council the right to interfere with the implication have conferred on the said Council the right to interfer with the Advocate’s right to practice the profession. Section 6(1)(d)(i) remains purposeful if the words in the section are read literally and hence the words are not required to be construed in a different way. in the case of Tahsildar Singh and Another Vs. The State of Uttar Pradesh, the Supreme Court approvingly quoted from Maxwell’s Interpretation of Statutes, the following passage:

“The proper course is to apply the broad general rule of contruction, which is that a section or enactment must be read as a whole, each portion throwing light, if need be, on the rest.

75. If Section 6(1)(d) of the Advocates Act and Section 30 (or Section 14(1) of the Bar Councils Act) are read together the words of clause (d) of Section 30 shall have to be read subject to Section 30 of the Act, and the same not be so construed as to take away the right conferred by the main part of the statute namely Section 30 of the Act.

76. The words, safeguarding the rights, privileges or interests of the Advocates appearing in Section 6(1)(d)(i) of the said Act can therefore be only something other than taking away the advocates right to practice. In the case of the Balasinor Nagrik Cooperative Bank Ltd. Vs. Babubhai Shankerlal Pandya and Others, , the Supreme Court pointed out that “it is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as whole a is equally applicable to different parts of the same section”. Same view was taken in the case of Commissioner of Income Tax, Central, Calcutta Vs. National Taj Traders, .

77. From these decisions of the Supreme Court it is clear that advocates practice the profession as of right in view of Section 30 of the Advocates Act (or Section 14(1) of the Bar Councils Act, 1926) and the plain language of these sections have to be given effect to. Read homogeneously with other provisions. Section 6(1)(d) will be repugnant to Section 30 of the Advocates Act (or Section 14(1) of the Bar Councils Act), if it be construed as providing power to the said Council to interfere with the advocates right to practise. “It is also well settled principle of interpretation that not only the sections but the various clauses of the same section have also to be read together. In Tahsildar Singh and Another Vs. The State of Uttar Pradesh, , Supreme Court observed that each portion shall throw light on the rest. If the various clauses of Section 6(1) be read together so that each one ‘throws light on the other* then it will be clear that all other provisions mentioned in Clauses (a) to (c) and (e) to (h) require the Bar Council to function in such a way as to facilitate the right to practice and not to affect or take away such right. If clause (d) is read in that light it only means that safeguarding the rights, privileges and interests of advocates shall be acts similar to promoting talks on legal topics, publishing journals and papers of legal interest and so on. In any event when the scheme of the Act is clear and when the right to practice when sought to be suspended or prohibited, the Act has made express pro vision for such a situation, Section 6(1)(d)(i) of the Act cannot be construed to have impliedly conferred on the said Bar Council powers larger than those provided by Section 35 of the said Act. Such a construction will be incongruous and not harmonious and is liable to be rejected.

78. If the interpretation sought to be given by the respondents to Section 6(1)(d) and (i) of the Advocates Act is examined from another angle, the same again will demonstrate that such interpretation sought to be given by the respondents is not tenable. Even if Section 6(1)(i) of the said Act empowers the Bar Council to do all other things necessary ‘for discharging such other function enumerated in the different clauses of sub-section (1) of said section including its functions for safeguarding the rights, privileges and the interests of the Advocates and according to the respondents for the safeguarding the interest of the Advocates the impugned resolution had to be taken by the Bar Council having jurisdiction to do so, the question which inevitably comes up, what then is the interest’ of the Advocates.

79. Our Apex Court, the High Courts as also English Courts while examining the attributes of legal profession and the roll of the Advocates time again has laid down what are attributes of the legal profession and the roll of the Advocates and if the same are examined, it will immediately become clear that the interest of an Advocate can never be only a selfish and personal interest of an Advocate or the Advocates themselves, in negation of the interest of others.

80. It has been held in such decisions that an Advocate plays an extremely important role in the society and therefore, is required to maintain a high standard of ethics and apart from his duty to his client, he also has a vital duty to the Court as an officer of the Court and also to the society at large. The expression interest of an Advocate does not admit of a narrow, selfish and blinkered interpretation as held by the Hon’ble Mr. Justice V. R. Krishna lyer of the Supreme Court in the case of Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, that the Bar is not a private guild like that of barbers, butchers and candlestick makers but by bold contrast a public institution committed to public justice and pro prono public service. There is a socially useful function for the lawyer to perform. His performance as a professional person is regulated by himself and more formally by the profession as a whole. The Central function that the legal profession must perform is nothing less than the administration of justice and practice of law is public utility. The same view was expressed by the same learned Judge in the case of The Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, . In the said case it was held inter alia that the legal profession ordains a high level of ethics and moral standard. The integral bond between the public and lawyer is unbreakable and the vital role of the lawyer depends upon his probity and professional life style. The central function of the legal profession is to promote the administration of justice. The practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the Nation which obligates the lawyers to observe scrupulously those norms which make him worthy of the confidence of the community in him as the vehicle of justice-social justice. The high moral tone of the considerable public service the Bar is associated with and its key role in the developmental and dispute processing activities and above all in the building up of just society and constitutional order has earned for it a monopoly to practise law and autonomy to regulate its own internal discipline. The rule’ of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional life-style. Be it remembered that the central function of the legal profession is to promote theadministration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to obsewe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice — social justice. In the case of Central Coal Fields Ltd. and Another Vs. Jaiswal Coal Co. and Others, , it was held by the Supreme Court, inter alia, that the right of effective access to justice has emerged as the first among the new social rights what with public interest litigation, community based actions and pro prono public proceedings. It was further held that effective access of justice can be-seen as their most basic requirement, the most basic human right of a system which purport the guarantee of legal rights. In the case of V.C. Rangadurai Vs. D. Gopalan and Others, it was held by the Supreme Court that the Counsel’s paramount duty is to the client and accordingly it will be against, professional etiquette for one Advocate to hand over to his brief to another to take his place at the hearing and conduct the case. A lawyer when entrusted with a brief is expected to follow the norms of the professional ethics and try to protect the interest of the clients. It has further held that Law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community. Indeed the monopoly conferred on legal profession by Parliament is coupled with a responsibility towards the people. In the case of Onkar Singh Vs. Angrez Singh and others, a learned Single Judge of the Pubjab High Court following a Division Bench decision in the case of Soudager Singh v. Executive Officer reported in (1989) 96 P&H LR 693 held that the Advocates have dual obligation in the matter of conducting cases. Firstly the obligation is towards their client who engage them. Such obligation is subject to the terms and conditions to the contract or authority given to the Counsel. The other obligation of the Advocate is towards the Court as an officer of the Court. An Advocate is considered as an officer of the Court to assist the Court in the matter of dispensation of justice. Such status of an Advocate is recognised by passage of time by Courts and such obligation is moral.

81. In the case of M. Veerabhadra Rao Vs. Tek Chand, , it was held by the Supreme Court that Legal Profession is monopolistic in character and this monoply itself inheres certain high traditions which its members are expected to upkeep and uphold.

82. In the case of Emperor Vs. Babus Rajani Kanta Bose and Another, Babus Rajani Kanta Nag and Another, Babu Annada Charan Roy and Babu Surendra Kumar Nag, it was held by Chief Justice Sanderson that boycotting of Courts by lawyers is grave interference with the administration of justice.

83. In the same case it was held by Sir Asutosh Mookerjee, J. that a lawyer is more than a mere agent or servant of his client; he is also an officer of the Court and as such he owes the duty of good faith and honourable dealing to the Court before which he practices his profession; his high vocation is to inform the Court as to the law and facts of the case and to aid it do justice by arriving at correct conclusion. In this connection the relevant observations of His Lordship is worth quoting : “The pleader by his obligation is bound to discharge his duties to his client with the strictest fidelity and is answerable to the disciplinary jurisdiction of the Court for dereliction of duty. A Pleader however, is more than a mere agent or servant of his client. He is also an officer of the Court, and as such he owes the duty of good faith and honourable dealing to the Courts before which he practises his profession. His high vocation is to inform the Court as to the law and fact of the case and to aid it to do justice by arriving at correct conclusions. The practice of the law is not a business open to all who wish to engage in it; it is a personal right or privilege limited to select persons of good character with special qualifications duly ascertained and certified; it is in the nature of a franchise from the State conferred only for merit and may be revoked whenever mis-condut renders the Pleaders holding the license unfit to be entrusted with the powers and duties of his office. Generally speaking, the test to be applied is whether the misconduct is of such a description as shows him to be an unfit or unsafe person to enjoy the privileges and to manage the business of others in the capacity of a Pleader, in other words, unfit to discharge the duties of his office and unsafe because unworthy of confidence. His office is a very badge of respectability, a patent of trustworthiness, derived from his position on the Court’s roll of counsel; consequently he ought not be suffered to pass for what he is not. Amongst various types of misconduct, there is none more reprehensible than such conduct as tends to impede, obstruct, or prevent the administration of the law or to destroy the confidence of the people in such administration; and any attempt on the part of a Pleader to boycott the Courts or to obstruct the administration of justice by a resort to any form of device, constitutes, in my opinion, ground for disbarment or suspension.”

84. Lord Denning in the case of Rondel v. W. reported in 1966 (3) All ER 657 while considering the duty of a lawyer held thus:- – As an advocate he is a minister of justice equally with the Judge. He has a monopoly of audience in the higher Courts. No one save he can address the Judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the Courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or, in the case of a dock brief, a nominal fee. He must accept the brief and do all he honovrably can on behalf of his client. I say “all he honourably can”, because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the Court.”

85. The aforesaid observations of Lord Denning has been quoted by our Apex Court with approval in the case of E.S. Reddi Vs. Chief Secretary, Government of A.P. and Another, .

86. It will thus appear from different judicial decisions that access to justice is one of the most important social rights and the lawyers taking part and actively being associated with the administration of justice in all Courts play an absolutely vital role in the society and is required to maintain a high standard of ethics, probity and integrity. He has a contractual obligation to his client who engaged him to do his case. But as an agent of his client he is not merely a mouth-piece of his client. He plays a much more important role by rendering assistance to the Court in the administration of justice and consequentially he has also a duty to the Court itself as an officer of the Court and also to the society at large as the legal profession is a public utility service. Such a vital and important role of the lawyers as laid down by different judicial decisions has now also been recognised by the Bar Council itself by framing rules under the Advocates Act relating to the standard of conducts and etiquettes. The very preamble to such rules will indicate the same, which is quoted hereunder:–

“An Advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate.”

Section 1 of the said rule provides the various duties of an Advocates towards the Court. Section 2 of the said rules provides the duty of the lawyer to his client providing, inter alia, that an Advocate shall not ordinarily withdraw from an engagement except without sufficient cause and unless reasonable and sufficient notice was given to his client.

87. If that be the attribute of the legal profession, and so high is the standard of ethics and etiquettes and the lawyer who owes duty to do his client, to the Court and to the member of the public, it is inconceivable that the personal interest of an individual Advocate or personal interest of Advocates as a class can override the larger interest In the matter of administration of justice, the duty to the Court and to the Society and the Bar Council being a statutory body and also being a watch-dog for the maintenance of standard to ethics and etiquettes of the profession and its high standard and integrity, in the name of exercising its function towards protecting the rights, privileges and interest of an Advocates, in the same breath can compel an Advocate to desist from doing his work so that the administration of justice sufers a set back and comes to a grinding halt and the Advocates act in breach of his duty to his client, his duty to the Court as an officer of Court and his duty to the public at large by not playing his role in the access to and in the administration of justice. So serious therefore being the consequences of Advocates ceasing to work, apart from the same amounting to breach, of his legal and moral obligation to the Court, to the client and to the society, it will be preposterous to read the existence of such power impliedly in Sec. 6(1)(d) and (i) of the Advocates Act when no such specific power has been invested on the Bar Council under the said Act and when the Bar Council is the guardian of high standard of ethics in the legal profession.

88. Such interpretation as sought to be given by the respondents will also indeed be paradoxical. The scheme of the Act makes the Bar Councils the guardian of the standard of ethics and etiquettes in the legal profession and has been invested it with the Disciplinary power to penalise an erring advocate who does not adhere to such high standard of ethics and etiquettes. But at the same time by giving a call for cease work and compelling an Advocate to cease work, the Bar Council compels an Advocate to fail in his duty to his client, his duty to the Court as also in his duty in the administration of justice and consequentially his duty to the public. Such an interpretation can therefore, never be accepted. The learned counsel appearing for the respondents while addressing the Court have time and again emphasised very much on the background of call for cease work given by the Bar Council and has tried to contend that the Bar Council had no way out but to give such a call as last resort for protecting the interest of the Advocates which was being seriously jeopardised for the holding of the Courts in the dilapidated building and but for such shock treatment, the State Government could not have not been activated and such call for cease work did give the desired result. By such submissions however, the Learned Counsel for the respondents merely highlighted the grave situation which arose at the relevant point of time because of non shifting of the Courts from the dilapidated building, but does not answer the question, whatever justification might have been for giving such call for cease work and howsoever noble the purpose might have been which was sought to be achieved, how the Bar Council had the jurisdiction to call upon an Advocate to cease work and to enforce such decision by threatening action against Advocates who defied such call. The Bar Council being a statutory body, if it does not have the jurisdiction to perform an Act, the nobility of the purpose of the act cannot create such a jurisdiction nor the consent of the vast majority of the lawyers. It is also futile to argue that all other method was adopted by the Bar Council as a last resort. Even assuming that there was no other method which could have been adopted by the Bar Council, the same again cannot empower the Bar Council to do some thing which it has no jurisdiction at all to do. It is also not to be overlooked; that the effect of such decision was to bring the administration of justice to a grinding halt and to paralyse the judiciary for putting pressure upon another wing of the State, namely the Executive. The philosophy preached by some that the end justifies the means cannot apply in law and certainly cannot be followed by a statutory body whose powers and functions are circumscribed by statute. If the action resorted to lacks legality and jurisdiction, legitimacy of the grievance and the purpose which is sought to be achieved, cannot legitimise the action.

89. It is pertinent to note in this connection nobility on justification of the cause for boycotting Courts pursuant to a consented movement has not been found by a Division Bench of this Hon’ble Court to have absolved the Advocates concerned of their duty to the Court and from the liability of committing misconduct by boycotting Courts. In the case of Emperor Vs. Rajani Nath Bhattacharjee and Others, , a Division Bench of this Hon’ble Court was considering the question as to whether boycott of Court by pleaders would amount to professional misconduct u/s 13(b), (f) of the Legal Practitioners Act and whether the fact the pleaders obtained consent of their client would make any difference. The Court noted the fact that there was a conserted action by which majority of pleaders at Habibganj boycotted the Court on a particular day in protest against the arrest of Mahatma Gandhi. It was held that such attempt was to impede the administration of justice and amounted to deliberate failure in duty to the clients and duty towards the Court. It was further held even if the clients for some reasons or other absolved the pleaders from their duty for themselves, the duty of the pleaders to the Court, as repre- sentative of their clients, appointed to protect their interest, and to assist the Court in the proper discharge of its duties remain. Accordingly the conduct of the pleaders to boycott Court was found to be reprehensible as the same was deliberate attempt to obstruct the administration of justice, and the same therefore was held to be misconduct within the meaning of Section 13(b), (f) of the Legal Practitioners Act. Earlier the same view was taken by this Hon’ble Court in the case of Emperor Vs. Babus Rajani Kanta Bose and Another, Babus Rajani Kanta Nag and Another, Babu Annada Charan Roy and Babu Surendra Kumar Nag, where the lawyers of Noakhali boycotted Court persuant to a concerted action for expressing sympathy for the tea garden coolies in Chandpur for which a Hartal was called in Noakhali.

90. I have not been able to accept the submissions of the Learned Counsel for the respondents that such cease work was necessary for protecting the rule of law and administration of justice, of which infrastructure of the Court is an integral part. Even if such infrastructure is an integral part of adminsitration of justice and unsafe Court buildings affect such administration by making the lives of all who attend such Courts including lawyers insecure, it is not understood how administration of justice can be served by paralysing the same and by blocking access to justice through cease work of the lawyers.

91. The Bar Council can certainly take all legitimate, legal and effective means for the purpose of protecting rights, privileges and interest of the Advocates, for example through judicial redress, by creating public awareness or any other method without para-lising the administration of justice. It is not however for this Court to advise the Bar Council which is a statutory body, in what manner it will act in performing, its function for safeguarding the rights, privileges and interest of the Advocates and it is for the Bar Council to decide the same. But the power of the Bar Council to take such actions which will be considered necessary by it for protecting the interest of the Advocates would obviously mean legitimate, legal and reasonable actions and not illegal or arbitrary action in negation of the rights and interest of others including Advocates and affecting the administralion of justice.

92. Access to the judiciary and justice is the pre-condition for existence and survival of Rule of law and can create a blockade to the same even for a day. It is therefore indeed an irony that a statutory body like Bar Council, which is the watchdog for maintenance of high siandard of ethics and etiquette in the legal profession, resorted to an action which had the effect of creating such blockade to the access of justice.

93. But even assuming (he Bar Council does have the jurisdiction to call upon the Advocates on its rule to cease work for protection of the interest of the Advocates, such resolution can never be binding upon an Advocate nor an Advocate can be penalised by the Bar Council for not following such call of the Bar Council The right of every advocate to pursue any profession of his choice and his right to freedom of thought and expression being guaranteed under Article 19 of the Constitution, every Advocate has the right to decide, whether such action of the Bar Council to call upon the Advocates to cease work in the name of protecting the interest of the Advocates is reasonable, justified or proper and whether it would be reasonable and proper for him to cease work when the same would paralyse the administration of justice and would amount to breach of his duty which he owes to his client and which he also owes to the Court in the administration to the justice as an officer of the Court and to the society at large. If an Advocate who is rational being he feels that such an action is improper and immoral, certainly he has every right in exercise of his right of freedom and thought of expression not to follow such a call of the Bar Council by desisting from working even if the majority of the Advocates may think otherwise. By no stretch of imagination therefore the act of an Advocate who defies such call of the Bar Council can be treated as misconduct attracting any of the disciplinary action which can be taken under the Advocates Act.

94. However, the Bar Council not having the jurisdiction to call upon the Advocates on its role to cease work for the reasons stated hereinbefore, the resolution which have been passed by the Bar Council in respect thereof cannot be treated as a statutory decision of the Bar Council but at most the personal view of the members of the Bar Council which can never be binding upon an Advocate.

95. Mr. R. N. Das learned Counsel appearing on behalf of the respondent No. 25 and Mr. Biswarup Gupta, learned Counsel appearing on behalf of the respondent No. 2 have submitted inter alia that the Bar Council being a State within the meaning of Article 12 of the Constitution, it has the freedom to take a decision which it consider to be the best in a particular case and it is not for the Court to sit in judgment over the same. It has been further contended that when powers are granted to some public body like Bar Council, to enable it to carry out-some functions of public nature, more latitude should be allowed in the exercise of powers which have been granted and it is not for the Court to restrict the use of such power. Reliance has been placed inter alia in the decision of the Supreme Court in the case of Asif Hameed and others Vs. State of Jammu and Kashmir and Others, where the Surpeme Court held inter alia the Constitution makers having meticulously defined the functions of various organs of the State, Legislature, Executive and Judiciary each of such organs has to function within its own spheres and no organ can usurp the function assigned to another and the functioning of democracy depends on the strength and independence of each of such organs. Reliance has also been placed in the decision of Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, , where the Supreme Court held inter alia that it would be wholly wrong for the Court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the object and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise the policy laid down by the regulation making body and to declare a regulation to be ultra vires merely on the ground that in view of the Court that the impugned provision will not help to serve the object and purpose of the Act. It has been further argued that while powers must be exercised reasonably, the Court cannot usurp the discretion of the public authority which is invested upon it by the Parliament and the Court must resist the temptation to draw the bounds too tightly merely according to its own opinion. Reliance has also been placed in the decision of Surpeme Court in the case of Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, where it has been held inter alia that reasonableness of a State action is to be presumed and the onus is very heavy upon him who challenges the same as unreasonable.

96. While it is true that it is not for the Court to usurp the functions of a public body or an authority or to interfere with the discretion of such a public body or authority or to substitute its own satisfaction for that of such public authority or body, it is also true that the Court has every power to examine in a fit and proper case whether such public authority or body or State exercises its powers within the limits of its jurisdiction and does not transgress the same. In the very case of Asif Hameed and others Vs. State of Jammu and Kashmir and Others, which has been relied upon by the respondents, it has been held that when a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the Executive has acted within the powers and functions assigned under the Constitution and if not the Court must strike down the action although in exercising such power of judicial review it is not for the Court to advise or direct the Executive in the matter of policy.

97. It is also now well settled through judicial precedence that every action of State or an authority must be for public good and must be reasonable and be free from arbitrariness and therefore if an act of public authority like Bar Council of West Bengal is arbitrary or without jurisdiction or unreasonable, the Court must strike down such action of such authority.

98. Again in the self same case of Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, which has been relied upon by Mr. Gupta appearing for the respondent No. 2, it has been held inter alia that where any Government action fails to satisfy the test of reasonableness and public interests and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid and where the Court is satisfied that the Governmental action is unreasonable it would be the plainest duty of a Court under the Constitution to invalidate such Governmental action which is one of the most essential for preservation of rule of law. In this connection the following observations of the Surpeme Court in paragraph 14 of the said case is worth quoting:–

“It is imperative in the democracy governed by the rule of law that Governmental action must be kept within the limits of the law and if there is any transgression, the Court must be ready to condemn it. It is the matter of historical experience that there is a tendency in every Government to assume more and more powers and since it is not an uncommon phenomenon in some countries that the legislative check is getting diluted, it is left to the Court as the only other reviving authority under the Constitution to be increasingly vigilant to ensure observance within the rule of law and in this task, the Court must not flinch or faultcr.”

99. In the instant case the writ petitioner have challenged the impugned resolutions of the Bar Council on the ground of lack of jurisdiction as also, inter alia, on the ground that the same are unreasonable. Therefore, when this Court examines such action of Bar Council for the purpose of ascertaining whether such action was within the jurisdiction of the Bar Council or the same is arbitrary or unreasonable, as alleged, the Court does not usurp the jurisdiction of the Bar “Council nor does it substitute its own satisfaction for that of the Bar Council.

100. As pointed out hereinbefore while the Bar Council is certainly free to take an action which in its opinion is necessary for safeguarding the interest of the Advocates, in doing so the Bar Council has to act within the bounds of its jurisdiction and cannot act in negation of the rights of others or interfere with the same and such action which it consider necessary for protection of the interest of the Advocates, cannot be capricious or arbitrary but has to be reasonable, and free from arbitrariness. I accept the submission of Mr. S. Pal, the Learned Counsel for the petitioner No. 1 that the impugned action of Bar Council has failed the test of reasonableness for the reasons stated hereinafter.

101. I however, accept the submission of the respondents that the background of taking the impugned resolution of Bar Council will indicate that there was no lack of bonafide on the part of the Bar Council in taking such a reasolution and such decisions of the Bar Council cannot certainly be called malicious. But absence of malice in a particular action not necessarily makes the same reasonable. There may be quite a situation where although there is no malice in fact, there may be a malice in law in that the authority concerned while taking an action may bona fide believe that it has the power to take such action, although it does not and such an action may also be unreasonable.

102. In my view that is exactly what has happened in the instant case. As it will appear from the affidavits filed on behalf of the Bar Council and some of its members that the impugned resolution calling upon the Advocates to cease work was passed as the Bar Council bona fide believed that other methods having failed to evoke response from the State Authorities in the matter of shifting of the Court from the dilapidated building, such an action namely to call upon the Advocates to cease work was the only method to be resorted to and it has the jurisdiction to take such action, although it lacked such jurisdiction for the reasons stated herein-above.

103. But in passing such resolution it also completely overlooked that such action will be wholly unreasonable as the immediate effect of such action would be serious affectation of the administration of justice by the Courts by impeding, preventing and contend- ing the same, the interest of the litigant public and the society at a large and boycotting of Courts have already been held to be serious interference with the administration of justice by this Hon’ble Court in the aforesaid case of Emperor Vs. Babus Rajani Kanta Bose and Another, Babus Rajani Kanta Nag and Another, Babu Annada Charan Roy and Babu Surendra Kumar Nag, and Emperor Vs. Rajani Nath Bhattacharjee and Others, and legal profession has been held to be a public utility service by the Hon’ble Supreme Court in the case of The Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, Access to the judiciary and administration of justice being the pre-condition for existence and survival of the rule of law, the impugned action of the Bar Council which blocks such access to justice and paralyses the administration of justice, although may be temporarily, was against public interest and rule of law and can be termed nothing but wholly unreasonable even though the object sought to be achieved by the same might be noble. Such action has also the effect of paralysing one wing of the State, namley the judiciary, to ventilate grievance against another wing of the State, namely executive, which again can hardly be called reasonable.

104. Mr. Bolanath Sen, learned Counsel appearing for the Bar Council of West Bengal, inter alia, has relied upon the decision of the Supreme Court in the case of Mangilal and Others Vs. State of M.P., in support of the existence of the power of Bar Council to give such a call, for cease work.

105. The aforesaid decision however, is not at all applicable in the instant case and it does not throw any light in resolving the issues in the present case. The issue involved in the aforesaid case of Mangilal is completely different. In the aforesaid case of Mangilal an appeal preferred to the High Court of Madhya Pradesh against the conviction and sentence by the trial Court was dismissed for default by the High Court as the lawyers were on strike and did not appear in the Court. While dismissing the appeal for default the Court examined the reason for which the laywers went on strike and also made certain adverse remarks in respect thereof. The Hon’ble Supreme Court while hearing the SLP against the aforesaid order of the High Court was of the view the High Court showed a lack of judicial restraint by going into no question of strike and making such adverse remarks and the High Court should not have embarked on the reason for the strike which was not the issue before it. In the said case the Hon’ble Supreme Court was never called upon to decide the question whether the Bar Council had the jurisdiction to call upon its members to cease work or such decision can be enforced against an Advocate who defies such call.

106. Mr. Biswarajan Ghosal respondent No. 9 appearing in person has also tried to justify the impugned action of the Bar Council contending, inter alia, that the same was necessary for upholding the unity of the legal fraternity and referred to the decision of the Supreme Court in the case of Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, thereof where it has been held by the Supreme Court, inter alia, that the Bar Councils are to safeguard the rights, privileges and interests of Advocates. Reference has also been made to paragraph 28 of the said judgment where it has been held by the Supreme Court that the Bar Council Act is the centinel of professional code of conduct and is vitally interested in the rights and privileges of the Advocates as well as the purity and dignity of the profession while there cannot be any quarrel with such interpretation of the functions of the Bar Council made by the Supreme Court in the aforesaid case, it is also to be remembered, as pointed out hereinbefore, that the Bar Council is not an association of Advocates, nor the same is a guild of lawyers nor the same is a trade union, but the same is a statutory body and its powers and functions are circumscribed by the provision of the statute and in the name of protecting interest of the Advocates, it cannot do something which actually affects the statutory and constitutional rights of the Advocates to practise as of right nor can it do anyting in the name of such protection of interest, which are unreasonable and will affect the administration of justice, block the access to the same and compel an Advocate to fail in his duty to the Court as an officer of the Court.

107. Mr. Ghosal has also tried to contend that no prejudice is caused to the clients, if the Advocates desist from attending the Courts pursuant to such a call for cease work inasmuchas a convention has been developed that in case of such absence of any party and in some cases litigants themselves appear in persons if they feel the matter is so urgent and sometimes the Court itself has passed order. Such contention is wholly misconceived. This Court is not aware of any such alleged convention and Mr. Ghosal has also been able to substantiate the same by refering to any fact or producing relevant materials. Mr. Ghosal hs also not been able to note to place any decision of the Hon’ble Supreme Court when the Supreme Court has deprecated the actions of any Court dismissing any case for default when the Advocates did not appear pursuant to call for cease work.

108. In my view in absence of an Advocate whether the Court will dismiss a matter for default or adjourn the same is the discretion of Court and in a situation when the Advocates do not attend Court pursuant to a call for cease work, there is no disability for a court either legal or conventional for dismissing the matter for default.

109. But the question is not whether in any given case, the Court adjourns the matter suo motu or dismisses the matter in absence of lawyers. Even if the Court adjourns the matter in such a situation, fact remains that for such cease work administration of justice suffers serious prejudice and access to justice is obstructed and an advocate fails to perform his duty to the Court as an officer of the Court in the administration of justice. Mr. Ghosal has also justified the impugned action of the Bar Council by contending the same is a non-violent and non-co-operation movement which has since obtained universal recognition and approval and the Bat Council itself on very many occasions previously resorted to such action.

110. Whether such action was resorted to Bar Council on very many earlier occasions also or not is wholly irrelevant for the issues involved in the case. Once it is found that the Bar Council does not have the jurisdiction to call upon the Advocates on its roll to cease work and such action of the Bar Council to , compel the Advocates to desist from attending Courts will be wholly unreasonable and without jurisdiction, the fact that such illegality was also committed by the Bar Council on earlier occasions will not legitimise its present actions when challenged before the Court of law. The impunged action of the Bar Council cannot also be held to be legal and reasonable on the ground that the same was necessary for maintaining the unity of the legal fraternity or such a movement being a non-violent and non-co-operation movement has obtained universal recognition. Such submission obviously emanates from the misconception that the Bar Council is a representative body or association of the lawyers or a guild of the lawyers and a trade union, which in fact, it is not, but a statutory body which can function only within the limit of its powers circumscribed by the statute. Such contention also ‘ overlooks the very preamble of the rules of etiquette and professional conduct as laid down by the Bar Council itself which provides, inter alia, that an Advocate shall at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for member of the Bar in his non-professional capacity may still be improper for an Advocate.

111. For the reasons stated above the Bar Council cannot have the jurisdiction or power to call upon the Advocates, on its role to cease work, and such a resolution if any of the Bar Council will not be binding upon the Advocates on its role and in the name of protecting the rights, interests and the privileges of the Advocates in exercising its functions u/s 6(1)(d) and (i) of the Advocates Act, the Bar Council cannot affect the right of an Advocate to practise as of right. Consequentially the impugned resolution calling upon the Advocates in its role to cease work, condemning the Advocates who defied such calls and the decision to issue show cause notice against the Advocates who defied the calls are vitiated and cannot be sustained.

112. It is also pertinent to record in this connection that the very first resolution of the Bar Council dated 3rd May, 1994 apart from anything else exposes total non-application of mind on the part of the Bar Council. By such resolution it was resolved by the Bar Council that ‘all Courts/Tribunals/Authorities including the Court of Andaman and Nicobar islands shall observe cease work from I0th to 16th May, 1994″. The aforesaid resolution dated 3rd May 1994 therefore, was not a resolution calling upon the Advocates to cease work, but called upon the Courts/ Tribunals/Authorities etc. to cease work. Such a direction by the Bar Council upon such Courts Tribunals etc. are not only wholly without jurisdiction, and improper, the same also is ex facie contumacious and on such ground also such resolution cannot be sustained. Mr. Sen appearing for the Bar Council however has submitted that by the said resolution the Bar Council really called upon the Advocates practising in such Courts/Tribunals/Authorities etc. to cease work and never directed the Courts/ Tribunals /Authorities to cease work and the recording to that effect in the said resolution obviously was made erroneously and the same was corrected subsequently in the subsequent resolution dated 6th May, 1994. It does not however, appear, as it is sought to be contended by Mr. Sen, from the resolution dated 6th May, 1994 that the aforesaid resolution really corrected the said earlier resolution. It is true that its subsequent resolution call was given to all the Advocates in West Bengal and Andaman and Nicobar Islands to observe cease work from 10th May, 1994 continuously till 16th. May, 1994, but same was done only after reiterating the previous resolution dated 3rd May, 1994 after considering the same. It was never recorded in the resolution dated 6th May, 1994 that the 3rd May, 1994 resolution erroneously recorded that the Court authorities and Tribunals were so directed to cease work.

113. However, because of the specific submission of the learned Counsel appearing on behalf of the Bar Council of West Bengal that recording to such effect was made inadvertently and erroneously and the Bar Council really called upon the Advocates of the Courts, Tribunals or Authorities to cease work, no further action is called for in respect thereof.

114. This takes us to the other question raised by the writ petitioners, namely the tenure of the Bar Council having expired already, the Bar Council had no jurisdiction at all to take such a resolution and therefore the impugned resolutions are void and inoperative. It was further sought to be argued that after the expiry of the tenure of the Bar Council the. members thereof could not have remained in office as members of the Bar Council and therefore they are all imposters to the such office and their actions are void and without jurisdiction.

115. u/s 8 of the Advocates Act, the term of office of an elected member of a State Bar Council (other than an elected member referred to in Section 54 of the Act) is 5 years from the date of publication of the result of election. Under sub-section (2) of the said Section, outgoing members shall continue in office until publication of the result of the election of his successor. Admittedly July 29, 1988 was the date when the result was previously published and therefore 28th July, 1993 was the last date of tenure of an elected member of State Bar Council. By a letter dated 13th Feb. 1994 the Bar Council of India informed the State Bar Council that the Bar Council of India after considering the request of the State Bar Council has resolved that the term of 5 years of the State Bar Council be extended till 25th of June, 1994. Under the amended proviso to Section 8 of the Act the Bar Council of India has the power to extend the tenure of the members of the Bar Council for a period not exceeding, six months for reasons to be recorded. The petitioners have contended, inter alia, such power of the Bar Council of India under the proviso of Sections to extend such tenure of six months obviously mean that such extention will take effect from the date of expiry of the original tenure and therefore, in the instant case such extention made by the Bar Council of India only extends the tenure of the Bar Council till January 1994 and since the Bar Council had no power to extend such tenure beyond a period of six months, the extension till June 1994 by the aforesaid letter written by Bar Council of India referred to by the respondents is void and without jurisdiction. As against the same the contention of the respondents is that under sub-section (2) of Section 8, an out-going member shall continue to be in office until the publication of result of the election of his successor and therefore, on expiry of the tenure of the Bar Council which is 5 years from publication of result of the election on 28th July, 1994, members were liable to continue under subsection (2) of the said section 8 and therefore, the action of the Bar Council of India to extend the tenure of State Bar Council till the end of June 1994 by the aforesaid letter was quite valid and proper.

116. The aforesaid question raised is really an important one being related to the question of extension of tenure of the members of the Bar Council and no doubt requires serious consideration. However, in view of the fact that during the pendency of the writ petition fresh election has also been held and newly elected members of Bar Council have already assumed office and are functioning for quite sometime, 1 am not inclined to decide such question as the same has become academic and the prayer for issue of a writ of quo warranto has become infructuous.

117. In the result the writ petition succeeds and the same is hereby allowed.

118. It is hereby declared that the Bar Council of West Bengal has no jurisdiction or power to call upon the Advocates on its roll to cease work or to compel them not to attend Court and such a resolution if any will not be binding upon the Advocates on its roll. The impugned resolution dated 3rd May, 6th May, 11th May and 13th May 1994 of the Bar Council of West Bengal are hereby quashed.

119. There will be no order as to costs.

120. Petition allowed.

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