Kerala High Court
Adv.E.Shanavas Khan vs The Kollam Bar Association on 17 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
WP(C).No.89 OF 2020(I)
PETITIONERS:
1 ADV.E.SHANAVAS KHAN
AGED 69 YEARS
ENROLLMENT NO K/42/1975, CHAIRMAN, BAR COUNCIL OF
KERALA, VISHNU MADOM, CUTCHERY P.O.KOLLAM-691 013.
2 AD. R. SETHUNATHAN PILLAI
AGED 54 YEARS
S/O RAGHAVAN PILLAI, ENROLLMENT NO
K/455/1990,SAKETHAM, CHERUMOODU, VELIMON P.O.PIN-
691 511.
3 ADV. K.RAMACHANDRAN NAIR
AGED 75 YEARS
S/O KRISHNA PILLAI,ENROLLMENT NO K/19/1975,ATHIRA,
UMAYANALLOOR P.O.KOLLAM-691 589.
4 ADV. PARIPPALLY R.RAVINDRAN
AGED 62 YEARS
S/O RAGHAVAN, ENROLLMENT NO K/427/1981,
NAVANEETHAM, THOPPILKADAVU, KOLLAM-691 012.
5 ADV. SUDHEER JACOB
AGED 48 YEARS
S/O JACOB VAIDYAN, ENROLLMENT NO K/1505/1995,
MAHIMA, KIZHAKKEKARA, THEVALAKKARA P.O.KOLLAM-690
824.
6 ADV. DILEEPKUMAR S
AGED 53 YEARS
S/O SAHADEVAN, ENROLLMENT NO K/97/1986, DRISYA,
RAMESWARAM NAGAR-12, KAIKULANGARA NORTH, KOLLAM-691
012.
W.P.(C).No.89/20
2
7 ADV. ALEX THOMAS
AGED 53 YEARS
S/O V.O. THOMAS, ENROLLMENT NO K/75/1990,
VADAKKEDATHU, T.D.NAGAR-108, CUTCHERY P.O.KOLLAM-
691 013.
8 ADV. P.K.SHIBU,
AGED 56 YEARS
S/O PARAMESWARAN PILLAI, ENROLLMENT NO K/605/1987,
SREEVALSAM, ERAM, CHATHANNOOR, KOLLAM-691 572.
9 ADV. K.P.SAJINATH
AGED 51 YEARS
S/O PARTHASARATHY, ENROLLMENT NO K/912/1992,
GIRINIVAS, THEKKEVILA P.O.KOLLAM-691 016.
10 ADV. VINOD.V
AGED 45 YEARS
S/O VISWAMBHARAN PILLAI, ENROLLMENT NO K/1043/2002,
KIZHAKKETHIL, CHERUMOODU, VELLIMON P.O.KOLLAM-691
511.
11 ADV. SICIN G
AGED 51 YEARS
S/O GANESAN, ENROLLMENT NO K/857/1994, RETNAM,
MUNDAKKAL WEST, KOLLAM-691 001.
12 ADV. K.B.MAHENDRA
AGED 51 YEARS
S/O BAHULEYAN, ENROLLMENT NO K/1046/1994, ADIDEVA,
PUNNUKONNOOR, PERUMPUZHA P.O.KOLLAM-691 504.
13 ADV. A.K. MANOJ,
AGED 48 YEARS
S/O APPUKUTTAN NAIR, ENROLLMENT NO K/1689/1995,
SREEKOVIL, POOTHAKULAM P.O.KOLLAM-691 302.
14 ADV. VINU K
AGED 43 YEARS
S/O KARUNAKARAN, ENROLLMENT NO K/1276/2002, DEVAKI
MANDIRAM, BODHI NAGAR-82, THATTAMALA P.O.KOLLAM-691
020.
W.P.(C).No.89/20
3
15 ADV. ANIL KUMAR
AGED 49 YEARS
S/O NADARAJAN, ENROLLMENT NO K/596/1998,
EDFAVANAKKUTTIYIL, VAYANAKAM, OCHIRA, KOLLAM-690
526.
16 ADV. RAHUL S.R.
AGED 29 YEARS
S/O K.G.SURESH BABU, ENROLLMENT NO K/799/2017,
THODIYIL VEEDU, PATTATHANAM P.O.PIN-691 021.
17 ADV. SHABEER,
AGED 31 YEARS
S/O SHARAFUDEEN, ENROLLMENT NO K/800/2017, SHEMEER
MANZIL, THAZHATHUCHERRY,KOOTTIKKADA P.O.KOLLAM-691
021.
18 ADV. ATHUL C
AGED 26 YEARS
S/O CHANDRAN PILLAI, ENROLLMENT NO K/1088/2017,
PALLIKKAL THEKKETHIL, CHATHINAMKULAM-691 014.
19 ADV. UNNIKRISHNAN S.D
AGED 43 YEARS
S/O LATE R. DIVAKARAN, ENROLLMENT NO K/1211/2000,
SHREYAS, THEKKEVILA (PO), KOLLAM-691 016.
20 ADV. BAJI SOMARAJAN,
AGED 59 YEARS
S/O SOMARAJN, ENROLLMENT NO K/475/1989, V.A.GARDEN,
ERAVIPURAM P.O.KOLLAM-691 011.
21 ADV. JULIET ANTONY,
AGED 51 YEARS
S/O NELSON, ENROLLMENT NO K/569/2009, NAJEESH
NIVAS, MULAVANA P.O.KOLLAM-691 503.
ADV. VIJAYA KUMAR
22 AGED 52 YEARS
S/O GOPINATHAN, ENROLLMENT NO K/285/1995, RESMI
NIVAS, ONRA-19, THEVALLY P.O.KOLLAM-691 009.
W.P.(C).No.89/20
4
23 ADV. C.G.SURESHKUMAR
AGED 60 YEARS
S/O GOPINATHAN NAIR, ENROLLMENT NO K/91/1983, SREE
PARVATHY, ONRA-89, THEVALLY P.O.PIN-691 009.
24 ADV. SURESHKUMAR D
AGED 52 YEARS
S/O DIVAKARAN, ENROLLMENT NO K/1413,1981,
MANASAROVAR, K.B. NAGAR-239, THEKKEKARA P.O.MADAN
NADA, KOLLAM-691 016.
25 ADV. SHINE.S
AGED 43 YEARS
S/O SUDHAKARAN, ENROLLMENT NO K/1138/2018, VASUDHA
NIVAS, PATTANTHURUTHU P.O.KOLLAM-691 016.
26 ADV. ANIL PUNTHALA,
AGED 58 YEARS
S/O BALAKRISHNA PILLAI, ENROLLMENT NO K/46/2018,
PUNTHALA KRISHNAMRITHAM, VELIYAMKULANGARA, OCHIRA
P.O.KOLLAM-690 520.
27 ADV. SUBHA S. PILLAI
AGED 42 YEARS
D/O SIVASANKARA PILLAI, ENROLLMENT NO K/191/2001,
KAKKUZHIYIL HOUSE, THEKKUMBHAGOM, KOLLAM-691 319.
28 ADV. KRISHNENDHU SURESHKUMAR,
AGED 38 YEARS
S/O D.SURESH KUMAR, ENROLLMENT NO K/773/2008,
MANASAROVAR, K.B.NAGAR-239, THEKKEVILA P.O.KOLLAM-
691 016.
29 ADV. AKHIL R.MATTATH,
AGED 31 YEARS
S/O RAJAN, ENROLLMENT NO K/1634/2019, MATTATH,
ADHINADU P.O.KARUNAGAPPALLY, KOLLAM-690 542.
BY ADVS.
SMT.ANUROOPA JAYADEVAN
SHRI.ASHRUTH NASER
W.P.(C).No.89/20
5
RESPONDENTS:
1 THE KOLLAM BAR ASSOCIATION,
A COMPANY LIMITED BY GUARANTEE, REPRESENTED BY
ITS SECRETARY, HAVING ITS OFFICE AT CIVIL
STATION CAMPUS, KOLLAM, PIN-691 013.
2 THE PRESIDENT,
KOLLAM BAR ASSOCIATION, CIVIL STATION CAMPUS,
KOLLAM, PIN-691 013.
3 THE SECRETARY,
KOLLAM BAR ASSOCIATION, CIVIL STATION CAMPUS,
KOLLAM, PIN-691 013.
4 ADV. DHEERAJ RAVI,
AGED 46 YEARS
S/O THOPPIL RAVI, PRESIDENT, KOLLAM BAR
ASSOCIATION, CIVIL STATION CAMPUS, KOLLAM, PIN-
691 013.
5 MANOJ SREEDHAR,
AGED 48 YEARS
S/O SREEDHARA, SECRETARY, KOLLAM BAR
ASSOCIATION, CIVIL STATION CAMPUS, KOLLAM, PIN-
691 013.
R1-5 BY ADV. SRI.SANTHOSH MATHEW
R1-5 BY ADV. SRI.ARUN THOMAS
R1-5 BY ADV. SRI.JENNIS STEPHEN
R1-5 BY ADV. SRI.VIJAY V. PAUL
R1-5 BY ADV. SMT.KARTHIKA MARIA
R1-5 BY ADV. SRI.ANIL SEBASTIAN PULICKEL
R1-5 BY ADV. SMT.JAISY ELZA JOE
R1-5 BY ADV. SHRI.ABI BENNY AREECKAL
R1-5 BY ADV. SMT.LEAH RACHEL NINAN
R1-5 BY ADV. SMT.DIVYA SARA GEORGE
OTHER PRESENT:
SR. ADV. K. GOPALAKRISHNA KURUP FOR PTR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-02-2020, THE COURT ON 17-03-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.89/20
6
JUDGMENT
Dated this the 17th day of March 2020
1. This writ petition is filed challenging Exhibits P6 and P6(a) proceedings of the respondents with regard to the suspension of 32 members of Kollam Bar Association.
2. Heard Sri.K.Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioners and Sri.Santhosh Mathew, learned counsel appearing for the respondents.
3. The learned Senior Counsel appearing for the petitioners contends that petitioners are advocates in the State Roll of Advocates prepared and maintained by the Kerala State Bar Council under Section 17 of the Advocates Act, 1961. They are members of the Kollam Bar Association, which is incorporated under Section 26 of the Travancore Companies Regulations, 1/1092 and it is an existing company within the meaning of Section 3 of the Companies Act, 1956. A general body meeting of respondent Association held on 18.12.2019 decided to abstain from the proceedings of the Principal District and W.P.(C).No.89/20 7 Sessions Judge on 21.12.2019. On 21.12.2019, The Director Board of the Kollam Bar Association met and decided to place 32 members of the Association including the petitioners under suspension on the ground that they had violated the decision to boycott courts on 21.12.2019. Petitioners herein are challenging the decision of the 1 st respondent to place them under suspension which is communicated by notice of suspension dated 21.12.2019.
4. The learned Senior Counsel contends that initially the number of persons suspended was shown as 30. However, the list of members supplied to the 25 th petitioner along with Exhibit P6 shows the number of members suspended as 32. It is submitted that petitioners are the members of the Kerala Advocate Welfare Fund constituted as per the provisions of Section 3 of the Kerala Advocates Welfare Fund Act, 1980. Since the petitioners are suspended from the Association, there is no possibility of the supply of the welfare stamps to them, with the result they will be prevented from practicing the profession which will amount to violation of their W.P.(C).No.89/20 8 fundamental right. Relying on the decision of this Court in V. Abdul Azeez v. Alappuzha Bar Association [ AIR 1993 Kerala 201], it is contended that every member of a Bar Association has a right to get the statutory duty of the Bar Association enforced by resorting to the remedy under the extraordinary jurisdiction under Article 226 of the Constitution of India. Relying on the decision of the Apex Court in Harish Uppal v. Union of India [AIR 2003 SC 739], it is also contended that the resolution dated 18.12.2019 passed by the respondent is against the law as declared that lawyers have no right to go on strike or give a call for boycott or even a token strike. The learned Senior Counsel also contended that the general body meeting conducted on 18.12.2019 was convened without proper notice in accordance with the provisions of Exhibit P1 Memorandum of Association and the copies of the decision of the meeting was also not supplied to the members of the Association. It is also contended that the decision to abstain from the proceedings of the District Court is an act which amounts to contempt of court.
W.P.(C).No.89/209
5. A counter affidavit has been placed on record by the respondents. It is contended therein that though Bar Association would be amenable to writ jurisdiction, the present decision sought to be impugned in the writ petition cannot be a subject matter of challenge in a writ petition under Article 226 of the Constitution of India. Relying on decisions of the Apex Court, it is contended that an order or proceeding can be challenged before a writ court only if there is a public law element and not to enforce a contract of personal service or a private right.
6. It is stated that the Director Board of the Association is empowered to take disciplinary action against members under Article 12(a) of the Articles of Association. Article 12(b) provides that the Director Board may suspend pending enquiry, a member for good and sufficient reasons. Article 12(c) provides for constitution of Grievance Committee and punishment can be imposed by the Director Board on the basis of a report of the Grievance Committee. It is stated that an appeal is also provided to the general body form any order of the Director Board.
W.P.(C).No.89/2010
7. It is further stated as follows:-
"Ext.P6 is only a notice of suspension pending enquiry. Suspension, pending enquiry, cannot be considered as punishment. Writ petitioners also participated in the boycott of the Lok Adalat held on 14.12.2019. Collective decision is taken by the general body of the 1st respondent association. Neither the 1st petitioner who is the Chairman of the Bar Council of Kerala nor any of the writ petitioners herein objected to the boycott of Fast Track Court No.1 on 16.12.2019. The writ petitioners, who are the members of All India Lawyers' Union, did not raise any objection in the General Meeting held on 18.11.2019. Crime No.1199/19 registered against the petitioners has purposefully been suppressed in the writ petition. Writ petitioners 1,2,3,4,5,7,9,16,22 and 28 alone had cases posted in the court on 21.12.2019. Advocate Sajeev Devarajan who was placed under suspension tendered written submission of apology and therefore his suspension was revoked."
8. The learned counsel for the respondent contends that the decision in Abdul Azeez's case (supra) is no longer applicable W.P.(C).No.89/20 11 to the current situation. It is stated that 2011 amendment to the Kerala Advocate Welfare Fund Act, 1980 removed the restriction that Welfare Stamps could only be supplied by Bar Association to their members and has changed the factual position regarding the availability of welfare stamps. Hence the reasoning in the decision is no longer applicable to the current factual situation. In Abdul Azees's case (supra) the membership had been terminated, while the petitioners herein have only been suspended pending enquiry. It is stated that after the amendment to the Welfare Fund Act, there is no public duty performed by the Association and the petitioners are able to get Welfare Stamps, file vakalaths and continue their practice of law. Relying on paragraph 35 of Harish Uppal's case (supra) the learned counsel for the petitioners submits that in the rarest of rare cases, a call for boycott would be justified. Relying on the cause list produced as Ext.R1(4), it is contended that the petitioners who did not have any cases in the concerned courts had unnecessarily and deliberately provoked the lawyers participating in the boycott by appearing in the court. Relying on the decision of the Apex W.P.(C).No.89/20 12 Court in Apollo Tyres Limited v. C.P.Sebastian [(2009) 14 SCC 360] and Ramesh Sanka v. Union of India and others [(2019) 3 SCC 589] it is contended that no writ would lie to enforce a contract of personal service and that the membership in an association stands on the same footing. Reliance is also placed on the decision reported in K.K.Saksena v. International Commission on Irrigation and Drainage and others [(2015) 4 SCC] and of a Division Bench of this Court in Sommy Kunjappan and Another v. Central Board of Secondary Education and others [2019 (2) KHC 1] to contend that a writ would lie against a body like the respondent only to enforce a public duty.
9. I have considered the contentions advanced on either side. The facts are not in dispute before me. It is also not in dispute that the suspension of the petitioners from the membership of the Bar Association was only on the ground that they did not comply with the call for boycott on of the District Court on a particular day.
W.P.(C).No.89/2013
10.Though it is contended that by the insertion of a provision for sale of welfare stamps through outlets set up by the Bar Council for the said purpose as well, the public duty of Bar Associations to supply welfare fund stamps stands terminated, I am of the clear view that the primary responsibility cast on the Bar Associations in the State to supply welfare stamps to their members renders them amenable to writ jurisdiction. I hold that the respondent association which is performing a public duty and a statutory function is amenable to the writ jurisdiction of this Court.
11.The Apex Court in Harish Uppal (supra) has held that the Bar Councils and Bar Associations can never consider any requisition calling for a meeting, to consider a call for a strike or call for a boycott. In case any Association calls for a strike or boycott, the concerned State Bar Council and on their failure, the Bar Council of India must immediately take disciplinary action against the advocates who give a call for the strike. It is further held that it is the duty of every Advocate to boldly ignore a call for strike or boycott where the W.P.(C).No.89/20 14 Bar Councils do not rise to the occasion. It was further held that the courts cannot be and are not divested of control and supervision of conduct in courts of Advocates merely because they involve the right of an Advocate to practice law. It was held that a call for boycott would amount to contempt of court and if a lawyer participates in a Bar Associations' boycott of a particular court, he can be mulcted with costs. It was further held as follows:-
"Thus the law is already well settled. It Is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of W.P.(C).No.89/20 15 confidence in judicial officers it would amount to scandansing the Courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singhs case (supra) that if they participate in a boycott or strike their action is ex facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known at least since Roman Services case, that the Advocates would be answerable for the consequences suffered by their clients if the nonappearance was solely on grounds of a strike call."
12.In Janet Jeyapaul v. SRM University, ([2015) 16 SCC 530] the Apex Court held that a University engaged in imparting higher studies is discharging a public function and is amenable to writ jurisdiction. It was held that availability of an alternate remedy is not a bar to exercise the extraordinary constitutional jurisdiction. In V. Abdul Azeez's case (supra), a learned single Judge of this Court held that a writ would lie against a District Bar Association where members were removed from the membership of such association. The decision in Jose Kuttiyani v. High Court Advocates Association [2004 (1) KLT 35] is also relied on by the learned counsel for W.P.(C).No.89/20 16 the petitioners. The said decision is authority on the point that suspension from membership of the Association is also a punishment and that this Court would be justified in considering the legality of the action.
13.Though several contentions have been raised by the learned counsel for the respondents, I am of the opinion that in view of the facts stated in the notice of suspension challenged herein, it cannot be disputed that the reason for suspension was the alleged violation of a boycott called by the Association. In view of the fact that the Apex Court has clearly held that the right to practice law can, by no stretch of imagination, be held to encompass the right to boycott courts, the respondents were completely unjustified in issuing orders of suspension on the ground that the petitioners did not participate in the boycott. The respondents, who are admittedly carrying out public duties, cannot interfere with the rights of the petitioners to practice their profession, that too, definitely not on the grounds which are mentioned in the notices of suspension. The notices of W.P.(C).No.89/20 17 suspension issued to the petitioners are therefore completely incompetent.
14.The notices of suspension issued by the respondents are completely illegal and invalid are liable to be set aside. The impugned notices are set aside. The petitioners shall be entitled to participate in the meetings and activities of the Association. They shall not be denied any rights or privileges by the Association on the strength of the alleged suspension. The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.89/20 18 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF
ASSOCIATION AND ARTICLES OF ASSOCIATION
OF THE KOLLAM BAR ASSOCIATION
EXHIBIT P2 TRUE TRANSCRIPTION OF THE MESSAGE (SMS)
DATED 17.12.2019 COPIED FROM THE MOBILE
PHONE
EXHIBIT P3 TRUE TRANSCRIPTION OF THE MESSAGE (SMS)
DATED 20.12.2019 COPIED FROM THE MOBILE
PHONE
EXHIBIT P4 TRUE TRANSCRIPTION OF THE MESSAGE (SMS)
DATED 21.12.2019 COPIED FROM THE MOBILE
PHONE
EXHIBIT P5 TRUE TRANSCRIPTION OF THE WHATSAPP
MESSAGE FORWARDED BY THE 1ST PETITIONER
EXHIBIT P6 TRUE COPY OF THE NOTICE OF SUSPENSION
DATED 21.12.2019 ALONG WITH THE
APPENDED LIST OF 32 MEMBERS SUSPENDED,
ISSUED TO THE 11TH PETITIONER HEREIN
SIGNED BY 4TH AND 5TH RESPONDENTS HEREIN
EXHIBIT P6A TRUE COPY OF THE NOTICE RECEIVED BY THE
25TH PETITIONER ALONG WITH A LIST OF 32
PERSONS
EXHIBIT P7 TRUE COPY OF THE ENDORSEMENT SIGNED BY
THE 5TH RESPONDENT HEREIN ON THE
APPLICATION SUBMITTED BY THE 11TH
PETITIONER
True copy
PS to Judge